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Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.

 

 

Case Summary

Note: The State Bar of Michigan wil be closed on Monday, July 4, in observance of Independence Day. The e-Journal will resume publication on Tuesday, July 5, 2022.

Includes a summary of one Michigan Supreme Court order under Family Law.


Cases appear under the following practice areas:

  • Civil Rights (2)

    Full Text Opinion

    This summary also appears under Employment & Labor Law

    e-Journal #: 77638
    Case: Guster v. Meyer Distrib., Inc.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Letica, K.F. Kelly, and Riordan
    Issues:

    Discrimination under the Persons With Disabilities Civil Rights Act (PWDCRA); Major life activity; Retaliation under the Worker’s Disability Compensation Act (WDCA); Cuddington v United Health Servs, Inc; “Circumstantial evidence”; McDonnell Douglas Corp v Green; Texas Dep’t of Cmty Affairs v Burdine; McDonnell Douglas/Burdine analysis; Distinguishing Major v Village of Newberry

    Summary:

    The court affirmed the dismissal of plaintiff’s PWDCRA claim but reversed the dismissal of his WDCA claim “because plaintiff submitted sufficient circumstantial evidence to avoid summary disposition.” He was formerly employed by defendant as a truck driver. Doctors “recommended that he have a partial knee replacement and concluded that he cannot work as a truck driver until that surgery is performed. To meet the definition of a disability under the PWDCRA, however, plaintiff must show that his condition substantially limits at least one major life activity” unrelated to his ability to perform his job duties. While he presented evidence “he experiences pain in his knee, its impact on his major life activities cannot be considered substantial. The evidence showed that plaintiff is able to engage in life’s major activities. Although the knee injury prevents him from working as a truck driver due to the physical requirements of that position, plaintiff still is able to work within the restrictions concerning the use of his knee as he was able to perform the tasks in the position of leads caller.” The court held that his “injury, while affecting his ability to walk, does not substantially limit this major life activity.” Further, to the extent that his “knee condition qualifies as a disability, he does not dispute that it prevents him from performing the duties of his job as a truck driver.” The court disagreed with his “claim that his position as a leads caller at the time his employment ended” was the relevant one for purposes of his PWDCRA claim. The evidence clearly showed he “only was offered that position on a temporary basis while he was receiving worker’s compensation benefits for a work-related injury.” There was no evidence that defendant permitted him “to transfer from a position as a truck driver to a new light-duty position on a permanent basis, or that either defendant or plaintiff understood or intended that plaintiff would not return to his position as a truck driver after his contemplated surgery to correct his knee condition.” Thus, even if he had “a disability under the PWDCRA, the trial court properly dismissed this claim because plaintiff was unable to perform the essential duties of the position of truck driver, the position for which” he was hired. But there were questions of fact as to his “WDCA retaliation claim that precluded the trial court from granting summary disposition for defendant on that claim.” With Cuddington as its guide, the court believed that plaintiff “produced circumstantial evidence that a fact finder may determine defendant had the intent to retaliate against” him. Remanded.

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Constitutional Law

    e-Journal #: 77623
    Case: Hopkins v. Nichols
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Griffin, Sutton, and Gibbons
    Issues:

    Claim under 42 USC § 1983 alleging violation of the Fourth Amendment right to be free from unreasonable searches & seizures; Qualified immunity; Whether a “seizure” occurred; United States v Mendenhall; Clearly established right; United States v Saari; The warrantless seizure of cattle; The “plain view” exception to the warrant requirement; Necessity of “exigent circumstances”; The “open fields” doctrine

    Summary:

    The court affirmed the district court’s denial of qualified immunity, holding that the warrantless search defendants-police officers conducted on plaintiffs’ cattle farm constituted a “seizure” where defendant-Nichols's “‘use of language or tone of voice’” may have indicated to plaintiff-Mrs. Hopkins that compliance with his request might be compelled. Further, the court rejected defendants’ argument that the open fields doctrine authorized their seizure of the Hopkins’s cattle. Suspecting animal cruelty, Nichols made a warrantless search of the Hopkins’s farm and seized their cattle. Plaintiffs sued under § 1983, asserting violation of their Fourth Amendment right to be free from unreasonable searches and seizures. Defendants unsuccessfully sought qualified immunity. The court held that a seizure occurred where Nichols was wearing a badge and a gun, and refused Mrs. Hopkins’ requests to delay the search. “By refusing her requests, Nichols objectively manifested an intent to seize Mrs. Hopkins by telling her that he would not wait or delay. When viewing these facts in the light most favorable to Mrs. Hopkins, a reasonable person in her position could easily have taken Nichols’s two refusals as an indication that she had to comply with his orders.” As to defendants’ consent argument, the court concluded that, “viewing the facts in the Hopkins’s favor, Nichols seized Mrs. Hopkins because she was not free to leave or terminate the encounter.” The court also held that the Hopkins’s showed that their right was clearly established at the time of the incident by citing “Mendenhall, which describes ‘the use of language or tone of voice indicating that compliance with the officer’s request might be compelled’ as an explicit example of ‘circumstances that might indicate a seizure.’” Thus, defendants were not entitled to qualified immunity as to the seizure where “Nichols’s commands to Mrs. Hopkins may have amounted to a clearly established constitutional violation." As to the warrantless seizure of the cattle, the court found that while defendants “could lawfully search the property under the open fields doctrine, that doctrine does not speak to whether they could seize the cattle. Rather, ‘exigent circumstances’ are needed for an officer to lawfully seize the property under the plain view exception.” Concluding there were no exigent circumstances in this case, the court held that defendants were not entitled to qualified immunity.

    Full Text Opinion

  • Constitutional Law (1)

    Full Text Opinion

    This summary also appears under Civil Rights

    e-Journal #: 77623
    Case: Hopkins v. Nichols
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Griffin, Sutton, and Gibbons
    Issues:

    Claim under 42 USC § 1983 alleging violation of the Fourth Amendment right to be free from unreasonable searches & seizures; Qualified immunity; Whether a “seizure” occurred; United States v Mendenhall; Clearly established right; United States v Saari; The warrantless seizure of cattle; The “plain view” exception to the warrant requirement; Necessity of “exigent circumstances”; The “open fields” doctrine

    Summary:

    The court affirmed the district court’s denial of qualified immunity, holding that the warrantless search defendants-police officers conducted on plaintiffs’ cattle farm constituted a “seizure” where defendant-Nichols's “‘use of language or tone of voice’” may have indicated to plaintiff-Mrs. Hopkins that compliance with his request might be compelled. Further, the court rejected defendants’ argument that the open fields doctrine authorized their seizure of the Hopkins’s cattle. Suspecting animal cruelty, Nichols made a warrantless search of the Hopkins’s farm and seized their cattle. Plaintiffs sued under § 1983, asserting violation of their Fourth Amendment right to be free from unreasonable searches and seizures. Defendants unsuccessfully sought qualified immunity. The court held that a seizure occurred where Nichols was wearing a badge and a gun, and refused Mrs. Hopkins’ requests to delay the search. “By refusing her requests, Nichols objectively manifested an intent to seize Mrs. Hopkins by telling her that he would not wait or delay. When viewing these facts in the light most favorable to Mrs. Hopkins, a reasonable person in her position could easily have taken Nichols’s two refusals as an indication that she had to comply with his orders.” As to defendants’ consent argument, the court concluded that, “viewing the facts in the Hopkins’s favor, Nichols seized Mrs. Hopkins because she was not free to leave or terminate the encounter.” The court also held that the Hopkins’s showed that their right was clearly established at the time of the incident by citing “Mendenhall, which describes ‘the use of language or tone of voice indicating that compliance with the officer’s request might be compelled’ as an explicit example of ‘circumstances that might indicate a seizure.’” Thus, defendants were not entitled to qualified immunity as to the seizure where “Nichols’s commands to Mrs. Hopkins may have amounted to a clearly established constitutional violation." As to the warrantless seizure of the cattle, the court found that while defendants “could lawfully search the property under the open fields doctrine, that doctrine does not speak to whether they could seize the cattle. Rather, ‘exigent circumstances’ are needed for an officer to lawfully seize the property under the plain view exception.” Concluding there were no exigent circumstances in this case, the court held that defendants were not entitled to qualified immunity.

    Full Text Opinion

  • Criminal Law (1)

    Full Text Opinion

    e-Journal #: 77639
    Case: People v. Butterfield
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Gleicher, Sawyer, and Garrett
    Issues:

    Motion to withdraw a plea; MCR 6.310(C); Illusory plea bargain; People v Pointer-Bey; Understanding & voluntary plea; MCR 6.302(A), (B)(2), & (C)(2); Habitual offender enhancement; People v Brown; Motion for resentencing; Self-representation; People v Anderson; MCR 6.005(D); Substantial compliance; Scoring of PRV 1 & OV 9

    Summary:

    Holding that defendant-Butterfield’s guilty “plea was not knowing and voluntary because he was misinformed as to the benefit of his plea bargain and the potential sentence he faced” under a fourth-offense habitual offender enhancement, the court concluded that the trial court erred in denying his motion to withdraw his plea. He must have the opportunity to withdraw his plea under MCR 6.310(C)(3). Further, the trial court erred in determining that he “validly waived his right to counsel at sentencing.” Thus, he is entitled to resentencing if he chooses to allow his plea to stand. But the court upheld the scoring of 25 points for PRV 1 and 10 points for OV 9. It vacated the order denying his motions to withdraw his guilty plea and for resentencing, and remanded. He was notified that “he was subject to a 25-year mandatory minimum sentence under MCL 769.12(1)(a) as a fourth-offense habitual offender. In exchange for dismissal of” that enhancement, he pled guilty to AWIGBH. He waived his right to counsel at sentencing and was sentenced to 27 to 120 months. As to his illusory plea claim, the court dealt with “a nearly-identical set of circumstances in Pointer-Bey.” Similarly here, it found that “Butterfield received ‘considerable benefit for his plea,’ given the dismissal of the fourth-offense habitual offender enhancement—albeit the wrong one.” The enhancement’s dismissal “significantly limited the trial court’s sentencing discretion and foreclosed a maximum sentence greater than” the statutory 10-year maximum for AWIGBH. However, while the trial court’s findings as to “Butterfield’s knowledge of the mistaken habitual offender status are somewhat unclear[,]” the court determined any factual finding that he “understood the exact terms of his plea bargain was clearly erroneous. Further, the ultimate decision to deny [his] motion to withdraw his guilty plea was an abuse of discretion. MCR 6.302(B)(2) requires the court to find that the defendant understands ‘any mandatory minimum sentence required by law.’ The record” indicated he believed he faced a 25-year mandatory minimum sentence and pled “guilty in exchange for dismissal of that enhancement. Butterfield incorrectly thought that his previous criminal history subjected him to a ‘mandatory minimum sentence required by law.’” His plea was also involuntary “because he was not 'fully aware of the direct consequences of’” it.

    Full Text Opinion

  • Employment & Labor Law (1)

    Full Text Opinion

    This summary also appears under Civil Rights

    e-Journal #: 77638
    Case: Guster v. Meyer Distrib., Inc.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Letica, K.F. Kelly, and Riordan
    Issues:

    Discrimination under the Persons With Disabilities Civil Rights Act (PWDCRA); Major life activity; Retaliation under the Worker’s Disability Compensation Act (WDCA); Cuddington v United Health Servs, Inc; “Circumstantial evidence”; McDonnell Douglas Corp v Green; Texas Dep’t of Cmty Affairs v Burdine; McDonnell Douglas/Burdine analysis; Distinguishing Major v Village of Newberry

    Summary:

    The court affirmed the dismissal of plaintiff’s PWDCRA claim but reversed the dismissal of his WDCA claim “because plaintiff submitted sufficient circumstantial evidence to avoid summary disposition.” He was formerly employed by defendant as a truck driver. Doctors “recommended that he have a partial knee replacement and concluded that he cannot work as a truck driver until that surgery is performed. To meet the definition of a disability under the PWDCRA, however, plaintiff must show that his condition substantially limits at least one major life activity” unrelated to his ability to perform his job duties. While he presented evidence “he experiences pain in his knee, its impact on his major life activities cannot be considered substantial. The evidence showed that plaintiff is able to engage in life’s major activities. Although the knee injury prevents him from working as a truck driver due to the physical requirements of that position, plaintiff still is able to work within the restrictions concerning the use of his knee as he was able to perform the tasks in the position of leads caller.” The court held that his “injury, while affecting his ability to walk, does not substantially limit this major life activity.” Further, to the extent that his “knee condition qualifies as a disability, he does not dispute that it prevents him from performing the duties of his job as a truck driver.” The court disagreed with his “claim that his position as a leads caller at the time his employment ended” was the relevant one for purposes of his PWDCRA claim. The evidence clearly showed he “only was offered that position on a temporary basis while he was receiving worker’s compensation benefits for a work-related injury.” There was no evidence that defendant permitted him “to transfer from a position as a truck driver to a new light-duty position on a permanent basis, or that either defendant or plaintiff understood or intended that plaintiff would not return to his position as a truck driver after his contemplated surgery to correct his knee condition.” Thus, even if he had “a disability under the PWDCRA, the trial court properly dismissed this claim because plaintiff was unable to perform the essential duties of the position of truck driver, the position for which” he was hired. But there were questions of fact as to his “WDCA retaliation claim that precluded the trial court from granting summary disposition for defendant on that claim.” With Cuddington as its guide, the court believed that plaintiff “produced circumstantial evidence that a fact finder may determine defendant had the intent to retaliate against” him. Remanded.

    Full Text Opinion

  • Family Law (1)

    Full Text Opinion

    e-Journal #: 77725
    Case: In re Baby Boy Doe
    Court: Michigan Supreme Court ( Order )
    Judges: Viviano, Bernstein, Clement, and Cavanagh; Concurring in part, Dissenting in part – McCormack; Separately Concurring in part, Dissenting in part – Zahra and McCormack; Concurrence – Welch
    Issues:

    Michigan’s Safe Delivery of Newborns Law (SDNL); Termination of parental rights as a nonsurrendering parent; A timely filed “petition” for custody; MCL 712.10(1); Whether petitioner’s divorce complaint satisfied MCL 712.10(1); Motion to strike non-conforming briefs & portions of appendices; Due process

    Summary:

    In an order in lieu of granting leave to appeal, the court reversed in part and vacated in part the Court of Appeals judgment (see e-Journal # 76085 in the 8/30/21 edition for the published opinion). It held that petitioner-father’s divorce complaint did not satisfy MCL 712.10(1) even though it included “a demand for custody because it was filed before the child was born.” The court concluded that “regardless of whether the Court of Appeals erred by sua sponte addressing an issue that was unpreserved and beyond the scope of the judgment from which petitioner appealed, it committed reversible error in its interpretation of the SDNL. The statutory issue before this Court is whether a husband’s complaint for divorce filed before a child is born that seeks custody of the unborn child, contingent upon the results of DNA testing, can constitute a timely ‘petition’ for custody filed by a ‘nonsurrendering parent’ under MCL 712.10(1).” The court found that the filing deadline was based “on the existence of a ‘newborn’ who has been ‘surrendered’ and the petitioner’s status as the nonsurrendering parent. When considered along with the statutory definitions, the statute sets forth the Legislature’s intent for a child to be born before a petition for custody can be filed under the SDNL.” It concluded that none “of the time-sensitive procedures and determinations that a properly filed petition for custody triggers can feasibly be accomplished before a child is born.” The court reversed Part II of the Court of Appeals opinion, which addressed “termination of any parental rights petitioner may have had” and vacated Part III of the opinion, as the Court of Appeals’ analysis of the trial court’s “judgment denying the motion to unseal the adoption records in Part III was intertwined with its holding under Part II[.]” The court remanded to the Court of Appeals for reconsideration of petitioner’s arguments as to “the denial of his motion to unseal the adoption file and for further proceedings not inconsistent with this order.” It also granted in part and denied in part his motions to strike non-conforming briefs and portions of appendices.

    Concurring in part and dissenting in part, Chief Justice McCormack concurred “with the majority’s statutory analysis, concluding that the Court of Appeals erred by holding that the petitioner’s complaint for divorce and custody request for the as-yet-unborn child constituted a petition for custody under the” SDNL. She also shared Justice Zahra’s “concerns about the SDNL’s ‘dubious method of providing notice before terminating’” a nonsurrendering parent’s rights. She wrote separately to express “deep reservations about whether the statute’s notice-by-publication provision sufficiently protects the due-process rights of nonsurrendering parents.”

    Also concurring in part and dissenting in part, Justice Zahra noted that this case was one of first impression for the court addressing the SDNL. Agreeing with the Court of Appeals dissenting judge, he was “persuaded, as a matter of statutory interpretation, that petitioner’s complaint for divorce requesting custody cannot be relied upon to collaterally attack proceedings of a case brought under the SDNL.” However, he believed “the SDNL is a highly flawed law because of significant constitutional concerns that this Court should not sweep under the rug.” He concluded that it “is unconstitutional as applied to legal parents.”

    Concurring, Justice Welch wrote separately about why, under “the unique facts of this case,” the SDNL did not violate petitioner’s due process rights. The record showed he “had presurrender and prebirth knowledge that his wife planned to invoke the SDNL. [He] did not file a petition for custody under the SDNL or otherwise move the Ottawa Circuit Court to locate the court where the SDNL action was pending, and he failed to seek reconsideration of or appeal the” other trial court’s termination order after he obtained that information. But Chief Justice McCormack and Justice Zahra raised “valid concerns about the SDNL and the future of notice by publication in printed newspapers.”

    Full Text Opinion

  • Insurance (1)

    Full Text Opinion

    This summary also appears under Litigation

    e-Journal #: 77633
    Case: Pellegrino v. State Farm Mut. Auto. Ins. Co.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Letica, K.F. Kelly, and Riordan
    Issues:

    First-party action under the No-Fault Act; Exclusion of evidence related to defendant-insurer’s handling of plaintiff’s claims; Relevance; MRE 401 & 402; MRE 403; Morales v State Farm Mut Auto Ins Co; Threshold “causation requirements” for liability to pay PIP benefits; Liability for a particular expense; MCL 500.3107(1)(a); Great weight of the evidence; Finding that plaintiff’s injuries did not arise out of the motor vehicle accidents; Right to a fair trial; Reetz v Kinsman Marine Transit Co; Precautions & protocols implemented due to the COVID-19 pandemic

    Summary:

    The court held that the trial court’s exclusion of evidence of or reference to defendant-insurer’s claims handling “in general, or plaintiff’s claims specifically, did not fall outside the range of reasonable and principled outcomes.” Further, the jury’s finding that her injuries did not arise out of the motor vehicle accidents at issue was not against the great weight of the evidence. Finally, she was not denied a fair trial by the precautions and protocols implemented due to the COVID-19 pandemic. Thus, the court affirmed the judgment of no cause of action entered after a jury trial. Plaintiff was involved in two accidents, one in 2016 and the other in 2017. She sought PIP benefits from her no-fault insurer, defendant. While she asserted the excluded evidence was “relevant to (1) whether her injuries arose from the use or operation of a motor vehicle, or (2) the recovery of PIP benefits for allowable expenses,” the court agreed with the trial court that evidence about “how defendant processed plaintiff’s claims for PIP benefits would not have a tendency to make it more probable or less probable that plaintiff’s injuries arose from the use or operation of a motor vehicle.” Thus, it would not be relevant. Likewise, this evidence “would not tend to show that plaintiff incurred reasonable charges for reasonably necessary services for her care, recovery, and rehabilitation.” As to plaintiff’s reliance on Morales, even if the evidence was not directly relevant to her “recovery of PIP benefits under MCL 500.3105 or the payment of allowable expenses under MCL 500.3107(1)(a), under Morales, it was arguably relevant to the limited issue of the recovery of interest under MCL 500.3142(2).” But the jury never reached the no-fault penalty interest issue because it found that her injuries did not arise out of the accidents. Thus, any error was harmless. Further, given the evidence of her pre-accident history of neck and back problems, “and that these conditions were degenerative in nature, the overwhelming weight of the evidence at trial did not preponderate against the jury’s verdict to the extent that it would be a miscarriage of justice to allow the verdict to stand.” Plaintiff also failed to show the COVID-19 protocols, which “complied with administrative orders, local administrative orders, and guidelines promulgated by” the Michigan Supreme Court, undermined her right to a fair trial.

    Full Text Opinion

  • Litigation (2)

    Full Text Opinion

    This summary also appears under Negligence & Intentional Tort

    e-Journal #: 77646
    Case: Estate of Sliger v. Bonno
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Borrello, Jansen, and Murray
    Issues:

    Premises liability; “Special relationship” between a landlord & tenant; Bailey v Schaaf; Duty; Williams v Cunningham Drug Stores, Inc; Criminal acts; MacDonald v PKT, Inc; Ordinary negligence; Jahnke v Allen; Appellate jurisdiction; Appeal of right; Applicability of Begin v Michigan Bell Tel Co; Raising issues on appeal related to prior orders; “Aggrieved party”; Personal representative (PR); Edge of the Woods (EOW)

    Summary:

    Concluding that it had jurisdiction over plaintiff-PR’s appeal, the court held that the trial court did not err in granting defendants-apartment complex owners and operators summary disposition of plaintiff’s premises liability claim. Further, he did not show that it erred in granting them summary disposition by failing to consider his claim as an ordinary negligence claim. The case arose from the fatal stabbing of plaintiff’s decedent by another tenant in the apartment complex, defendant-Bonno. As to the court’s jurisdiction, the sole focus of the appeal was the trial court’s 2019 order granting defendants summary disposition of the premises liability claim, which was not a final order appealable by right. The stipulated 2021 order dismissing Bonno from the case and dismissing plaintiff’s breach of contract claim indicated “it was a final order disposing of all the claims.” Defendants asserted plaintiff could not appeal from that order because he did not specifically preserve the right to do so. However, because his “appellate arguments are not directed at any issue encompassed within the consent judgment, the rule in Begin” did not bar the court’s jurisdiction. As to the premises liability claim, plaintiff argued “that because of the incident between Bonno and the decedent on the night before Bonno stabbed the decedent, and a history known to EOW residents of ‘tension and conflict’ between” the two going back at least 2014, “defendants should have involved the police before Bonno physically attacked and stabbed the decedent on [7/31/15]. However, imposing such a duty would be akin to requiring defendants to anticipate Bonno’s criminal acts before he actually committed them and to preemptively prevent Bonno’s criminal conduct. Defendants had no such duty.” The court noted the absence of record evidence they “had ‘notice of a specific situation occur[ring] on the premises that would cause a reasonable person to recognize a risk of imminent harm’ to plaintiff’s decedent and failed to respond by reasonably expediting police involvement.” In light of the lack of “evidence of an ongoing situation of physical violence between Bonno and the decedent that was occurring on the premises between the” prior altercation and the fatal stabbing, “the prior night’s incident would not cause a reasonable person to recognize an imminent risk of harm to plaintiff’s decedent.” Affirmed.

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Insurance

    e-Journal #: 77633
    Case: Pellegrino v. State Farm Mut. Auto. Ins. Co.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Letica, K.F. Kelly, and Riordan
    Issues:

    First-party action under the No-Fault Act; Exclusion of evidence related to defendant-insurer’s handling of plaintiff’s claims; Relevance; MRE 401 & 402; MRE 403; Morales v State Farm Mut Auto Ins Co; Threshold “causation requirements” for liability to pay PIP benefits; Liability for a particular expense; MCL 500.3107(1)(a); Great weight of the evidence; Finding that plaintiff’s injuries did not arise out of the motor vehicle accidents; Right to a fair trial; Reetz v Kinsman Marine Transit Co; Precautions & protocols implemented due to the COVID-19 pandemic

    Summary:

    The court held that the trial court’s exclusion of evidence of or reference to defendant-insurer’s claims handling “in general, or plaintiff’s claims specifically, did not fall outside the range of reasonable and principled outcomes.” Further, the jury’s finding that her injuries did not arise out of the motor vehicle accidents at issue was not against the great weight of the evidence. Finally, she was not denied a fair trial by the precautions and protocols implemented due to the COVID-19 pandemic. Thus, the court affirmed the judgment of no cause of action entered after a jury trial. Plaintiff was involved in two accidents, one in 2016 and the other in 2017. She sought PIP benefits from her no-fault insurer, defendant. While she asserted the excluded evidence was “relevant to (1) whether her injuries arose from the use or operation of a motor vehicle, or (2) the recovery of PIP benefits for allowable expenses,” the court agreed with the trial court that evidence about “how defendant processed plaintiff’s claims for PIP benefits would not have a tendency to make it more probable or less probable that plaintiff’s injuries arose from the use or operation of a motor vehicle.” Thus, it would not be relevant. Likewise, this evidence “would not tend to show that plaintiff incurred reasonable charges for reasonably necessary services for her care, recovery, and rehabilitation.” As to plaintiff’s reliance on Morales, even if the evidence was not directly relevant to her “recovery of PIP benefits under MCL 500.3105 or the payment of allowable expenses under MCL 500.3107(1)(a), under Morales, it was arguably relevant to the limited issue of the recovery of interest under MCL 500.3142(2).” But the jury never reached the no-fault penalty interest issue because it found that her injuries did not arise out of the accidents. Thus, any error was harmless. Further, given the evidence of her pre-accident history of neck and back problems, “and that these conditions were degenerative in nature, the overwhelming weight of the evidence at trial did not preponderate against the jury’s verdict to the extent that it would be a miscarriage of justice to allow the verdict to stand.” Plaintiff also failed to show the COVID-19 protocols, which “complied with administrative orders, local administrative orders, and guidelines promulgated by” the Michigan Supreme Court, undermined her right to a fair trial.

    Full Text Opinion

  • Negligence & Intentional Tort (2)

    Full Text Opinion

    This summary also appears under Litigation

    e-Journal #: 77646
    Case: Estate of Sliger v. Bonno
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Borrello, Jansen, and Murray
    Issues:

    Premises liability; “Special relationship” between a landlord & tenant; Bailey v Schaaf; Duty; Williams v Cunningham Drug Stores, Inc; Criminal acts; MacDonald v PKT, Inc; Ordinary negligence; Jahnke v Allen; Appellate jurisdiction; Appeal of right; Applicability of Begin v Michigan Bell Tel Co; Raising issues on appeal related to prior orders; “Aggrieved party”; Personal representative (PR); Edge of the Woods (EOW)

    Summary:

    Concluding that it had jurisdiction over plaintiff-PR’s appeal, the court held that the trial court did not err in granting defendants-apartment complex owners and operators summary disposition of plaintiff’s premises liability claim. Further, he did not show that it erred in granting them summary disposition by failing to consider his claim as an ordinary negligence claim. The case arose from the fatal stabbing of plaintiff’s decedent by another tenant in the apartment complex, defendant-Bonno. As to the court’s jurisdiction, the sole focus of the appeal was the trial court’s 2019 order granting defendants summary disposition of the premises liability claim, which was not a final order appealable by right. The stipulated 2021 order dismissing Bonno from the case and dismissing plaintiff’s breach of contract claim indicated “it was a final order disposing of all the claims.” Defendants asserted plaintiff could not appeal from that order because he did not specifically preserve the right to do so. However, because his “appellate arguments are not directed at any issue encompassed within the consent judgment, the rule in Begin” did not bar the court’s jurisdiction. As to the premises liability claim, plaintiff argued “that because of the incident between Bonno and the decedent on the night before Bonno stabbed the decedent, and a history known to EOW residents of ‘tension and conflict’ between” the two going back at least 2014, “defendants should have involved the police before Bonno physically attacked and stabbed the decedent on [7/31/15]. However, imposing such a duty would be akin to requiring defendants to anticipate Bonno’s criminal acts before he actually committed them and to preemptively prevent Bonno’s criminal conduct. Defendants had no such duty.” The court noted the absence of record evidence they “had ‘notice of a specific situation occur[ring] on the premises that would cause a reasonable person to recognize a risk of imminent harm’ to plaintiff’s decedent and failed to respond by reasonably expediting police involvement.” In light of the lack of “evidence of an ongoing situation of physical violence between Bonno and the decedent that was occurring on the premises between the” prior altercation and the fatal stabbing, “the prior night’s incident would not cause a reasonable person to recognize an imminent risk of harm to plaintiff’s decedent.” Affirmed.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 77645
    Case: Zeliasko v. Al-Dorough
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Borrello and Jansen; Dissent – Murray
    Issues:

    Auto negligence; “Serious impairment of body function”; MCL 500.3135(5); McCormick v Carrier; Objectively manifested impairment; Patrick v Turkelson

    Summary:

    The court concluded that genuine issues of material fact existed as to whether plaintiff’s left shoulder instability and back spasms were caused by the motor vehicle accident, and whether this “impairment affected her ability to complete” work tasks. Thus, it vacated summary disposition for defendants and remanded. Plaintiff’s vehicle was struck in the rear by a truck driven by one defendant and owned by the other. They contended she "could not establish a threshold injury pursuant to MCL 500.3135.” The court noted the Michigan Supreme Court emphasized that the inquiry under the first prong of McCormick “looks at an objectively manifested impairment, not an objectively manifested injury. . . . Our Supreme Court differentiated between ‘injury’ and ‘impairment’ by noting that ‘while an injury is the actual damage or wound, an impairment generally relates to the effect of that damage.’” The court concluded in Patrick that while “mere subjective complaints of pain and suffering are insufficient to show impairment, evidence of a physical basis for that pain and suffering may be introduced to show that the impairment is objectively manifested.” It determined here that such a physical basis existed in the records from an exam by a doctor (B), who found that plaintiff had an unstable shoulder joint “with likely recurring episodes of subluxation” and periscapular muscle spasms. This constituted an objectively manifested impairment. Defendants noted B’s diagnoses “occurred eight months after the accident, and after plaintiff had been examined by several other doctors who did not provide such a diagnosis. Additionally, the medical record does not explicitly state that this impairment was a result of the vehicle accident. But it is a reasonable inference that” it was given that “plaintiff complained of left shoulder and back issues on a regular basis from the time of the accident to the time of” B’s exam. As to her general ability to lead her normal life (an issue the trial court did not reach), the court found any “suggestion that, as a matter of law, there is a certain minimum period or minimum amount of affect that must be met to satisfy the third prong of the McCormick analysis does not have a basis in either McCormick or” MCL 500.3135. It concluded a reasonable fact-finder could determine “that plaintiff’s impairments affected her general ability to live her normal life.”

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  • Termination of Parental Rights (3)

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    e-Journal #: 77658
    Case: In re Schall
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Letica, K.F. Kelly, and Riordan
    Issues:

    Termination under §§ 19b(3)(g) & (j); Children’s best interests; Placement with the father; “Relative”; Domestic violence (DV)

    Summary:

    Concluding that grounds for termination of respondent-mother’s parental rights to the children (CS and GS) existed under §§ (g) and (j) and the trial court did not err by finding that termination was in their best interests, the court affirmed. The evidence showed that “respondent made little to no progress in addressing her proclivity for domestic violence. She refused to admit that she has a problem with domestic violence, let alone admit that she committed such an act.” Thus, with her “not being truthful and forthright with her mental-health treatment providers with respect to domestic violence, there was no evidence with which the trial court could conclude respondent was making progress with her” DV issues. Considering her lack of progress as to her issues with DV, the trial court did not clearly err by holding that clear and convincing evidence supported termination under § (g). The same rationale applied to the trial court’s other ground for termination under § (j). Because respondent was not making progress as to DV, it was not clear error to determine there was “a reasonable likelihood that such violence will arise again. And although there was no evidence that either child had been a direct target of respondent’s violence, the lack of physical harm is not dispositive of the issue.” The court noted that the trial court “heard testimony that children can be emotionally harmed if they view one parent commit violence against another parent. Indeed, there was evidence that CS had witnessed at least one of respondent’s assaults on the father. The trial court, therefore, did not clearly err by finding that the there was a reasonable likelihood that the children would be harmed if returned to respondent’s home.”

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    e-Journal #: 77657
    Case: In re Shockley-Wagner
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Gleicher, Sawyer, and Garrett
    Issues:

    Termination under § 19b(3)(f)(ii); Failure to “regularly & substantially” visit, contact, or communicate with the child

    Summary:

    The court held that the trial court properly terminated respondent-mother’s parental rights to the child (KSW) where she “could present no evidence countering that she ‘regularly and substantially failed or neglected, without good cause’ to visit, contact, or communicate with KSW during the relevant period.” The trial court terminated both parents’ parental rights but only respondent appealed. It found termination supported under § (f), and she contested “only the second part of that factor—that she regularly and substantially failed or neglected, without good cause to visit, contact, or communicate with KSW for a two-year period.” DHHS filed the initial petition on 1/9/18. Thus, the relevant period was 1/9/18 to 1/9/20. Even viewing the evidence in the light most favorable to her, the trial court did not err. In respondent’s view, the trial court “improperly focused on whether there were regular and substantial successful or attempted contacts, rather than whether there were regular and substantial failures to contact.” However, looking at the inverse of the trial court’s finding—that she “failed to contact KSW for 564 days or 77.3% of the statutory period—revealed that her challenge was unfounded.” Record evidence supported the trial court’s calculations and the court found no clear error. Thus, “respondent maintained the ability to visit, contact, or communicate with her child, but failed to do so.” Moreover, she “could have enforced her legal right to visit, contact, or communicate with KSW.” Also, no evidence supported that a petition for a parenting-time order would have been required, since DHHS never disallowed in-person visits. “Though not dispositive on the question of whether respondent failed to ‘regularly and substantially’ visit, contact, or communicate with KSW,” the court also noted the quality of the contacts between them. “Given KSW’s diagnoses, KSW did not truly engage in the video chats. He was often distracted and lost interest quickly. Respondent often grew frustrated with KSW and hung up on him on several occasions. Even knowing these limitations, respondent made no effort to visit her child in-person more often. As a result, mother and son did not cultivate their relationship or preserve their bond.” The purpose of § (f)(ii) “is to ensure a parent maintains a relationship with the child. Respondent did not meet that goal here.” Affirmed.

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    e-Journal #: 77654
    Case: In re Thornton
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Gleicher, Sawyer, and Garrett
    Issues:

    Termination under §§ 19b(3)(c)(i), (g), & (j); Children’s best interests; Reasonable reunification efforts

    Summary:

    The court held that statutory grounds existed for termination of respondents-parents’ parental rights to the children. Also, the trial court properly found that termination was in the children’s best interests. Finally, the DHHS made reasonable effort to reunify them with their children. “The circumstances that led to the adjudication included the deplorable condition of the home, poor parenting skills, failure to meet the children’s educational, medical, and physical needs, and substance abuse.” These same circumstances supported that they “had not provided proper care and custody for their children and that the children would be at risk if returned to their parents’ home yet again. Respondents were offered a treatment plan designed to address the barriers to reunification. The services were intensive, hands-on, and frequently home-based. Despite these efforts, the circumstances that precipitated the children’s removal continued to exist. Every time respondents made some progress, they then significantly regressed.” Once cleaned, their “home would revert to its unsanitary condition and the children’s hygiene would suffer. After showing progress during parenting time, respondents would fall back into old patterns of neglecting the children’s educational, medical, and day-to-day needs when the children were returned to their care.” They also “continued to abuse illegal substances, all the while denying their use. This pattern was repeated over and over. Respondents simply could not sustain any forward momentum.” The court held that their “failure to benefit after more than four years of services supports that respondents would not be able to rectify these conditions within any reasonable timeframe to provide proper care and custody and a safe home for their children.” Affirmed.

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