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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
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Professional discipline action; General duty negligence under the Public Health Code; MCL 333.16221(a); In re Sangster; Standard of care; Failure to visualize/document pressure ulcers; Negligent supervision of a physician assistant (PA); MCL 333.17047, MCL 333.17049(2); Competent, material, & substantial evidence; Procedural due process; Adequate notice of charges; Hardges v Department of Soc Servs; History & physical (H&P); Board of Medicine’s Disciplinary Subcommittee (DSC); Administrative law judge (ALJ)
Holding that competent, material, and substantial evidence showed respondent-physician failed to discover and document a patient’s pressure injuries and negligently supervised a PA, the court affirmed the sanctions imposed by the DSC. Respondent, serving as medical director at a skilled nursing facility, examined an elderly patient (AH) admitted after hospitalization for sepsis. Nursing records at admission documented coccyx and left-heel pressure wounds, but respondent’s H&P stated, “No rashes or ulcers,” and a PA’s progress notes misidentified a heel wound and lacked detailed descriptions. After a hearing, the ALJ found violations of general duty under MCL 333.16221(a) for failing to visualize/document the wounds and for negligent supervision of the PA, but no “incompetence,” and recommended sanctions. The DSC adopted the proposal. On appeal, the court rejected respondent’s argument that the evidence did not support a standard-of-care violation, concluding that the testimony of Dr. K “and the documentary evidence clearly constituted ‘competent, material, and substantial evidence’ supporting the conclusion that respondent violated the standard of care.” It likewise rejected the challenge to negligent supervision, finding the progress notes, along with Dr. K’s “testimony and report, constituted competent, material, and substantial evidence supporting the ALJ’s conclusion that respondent failed to properly supervise the PA.” Addressing due process, the court rejected the claim of inadequate notice, explaining that “any reasonable person would know that petitioner was advancing a claim of negligent supervision in its complaint,” and noting the ALJ correctly concluded negligent supervision was properly raised.
Eighth Amendment excessive force claim by a prisoner under 42 USC § 1983; Whether the prison misconduct hearing officer’s factual findings had preclusive effect; Peterson v Johnson; Roberson v Torres; Full & fair opportunity to litigate a factual dispute; Adequacy of access to the evidence; Effect of plaintiff’s lack of an attorney at the prison hearing; Whether plaintiff had “sufficient incentives to litigate” a key factual finding made by the hearing officer; Comparing the video evidence & the testimony; Qualified immunity; Subjective & objective components of an Eighth Amendment claim; Clearly established right; Corrections officers (COs)
[This appeal was from the ED-MI.] Because plaintiff-Nash lacked adequate access to the evidence presented at his prison misconduct hearing, was unrepresented by an attorney during the hearing, and did not have sufficient incentives to litigate the relevant factual dispute, the court held that the district court erred by ruling that the prison hearing officer’s findings should have preclusive effect in this case. It also held that Nash raised a genuine dispute of material fact as to whether defendants-COs (Bryce and Turner) violated his Eighth Amendment rights. Thus, it reversed the district court’s grant of qualified immunity to defendants and remanded. A prison misconduct hearing officer, relying on security video tapes, “found that Nash had assaulted Bryce and Turner by lunging away from them before their decision to take him down.” Nash filed this suit “under § 1983, arguing that the takedown violated his Eighth Amendment right to be free from excessive force.” The district court granted defendants summary judgment based on qualified immunity. On appeal, the court first held that it erred by ruling that the prison hearing officer's findings should have preclusive effect on this case. Citing Peterson, the court noted it has “held that factual findings from Michigan prison major misconduct hearings can, in some circumstances, have preclusive effect in a prisoner’s federal litigation.” But it emphasized in Roberson “that courts must closely examine the ‘particular circumstances’ of a prisoner’s case and consider whether the prisoner in fact had a ‘full and fair opportunity’ to litigate.” It concluded “that Nash did not have such a full and fair opportunity here.” The limits on his access to the evidence “were substantially greater than” those in Peterson. He was not permitted to view the videos or the memo “that provided time-stamped details regarding what was shown in the video and still images from the videotape (along with other relevant pieces of evidence).” The court held that these facts provided “adequate reason to decline to afford preclusive effect to the hearing here.” It further noted that “the factual question at issue here—whether Nash also resisted Bryce and Turner as they walked him into the prison yard—was not necessary to the hearing officer’s ultimate determination.” Thus, the court found that he “lacked ‘sufficient incentives to litigate’ the particular factual issue of what happened when [he] exited the prison yard with Bryce and Turner.” Next, after viewing the “far from clear” video evidence, it held “that the district court erred in disregarding [Nash’s] testimony[,]” and further that defendants were “not entitled to summary judgment on their qualified immunity defense.”
Search & seizure; Qualified immunity; Good cause; Jurisdiction; Plumhoff v Rickard; Whether the issues on appeal constituted “factual” or “legal” disputes; Roberson v Torres; Whether defendant violated the plaintiff’s child’s rights by searching him for a gun; Whether the child’s constitutional rights were violated by placement in a “breakdown room”
[This appeal was from the ED-MI.] The court held that defendant-teacher (Russell) was entitled to qualified immunity where his decision to search plaintiff’s (Johnson) child (XM) by having him pull down his trousers did not violate the child’s constitutional rights because he had “good cause” to believe XM may have had a gun at school. Russell is a special-education teacher for defendant-school district. After his assistant principal was told that XM, a 6th grade special education student, brought a handgun to school, the assistant principal sought out Russell and they searched XM’s locker, which was completely empty, before removing him from class. After he denied having a gun, they asked him to pat himself down and turn out his pockets. Satisfied that he had no weapon, they sent him back to class. Another search took place the next day after a teacher heard XM utter what she perceived to be a gun threat. Again, they found no gun. Russell became concerned that XM may have brought a gun to school and secreted it in the school, and that the gun could be used for violent purposes. XM accused Russell of making him pull down his pants and then Russell lifted up XM’s shirt, where no gun was found. A few days later, XM arrived at the school to serve a suspension, and claimed Russell locked him in the windowless “breakdown room” for 20 minutes. However, the door did not have a lock. He then called Johnson. A year later, she sued the school, teachers, and school officials on his behalf, claiming they violated his constitutional rights. The district court granted all defendants except Russell summary judgment and denied him qualified immunity, ruling that “certain disputed facts—namely, whether Russell strip-searched XM while looking for the gun, and whether he locked XM in the breakdown room—required a decision by a jury.” After the court determined it had jurisdiction to hear the appeal of “legal” questions under Plumhoff, it noted it was not empowered to review a district court’s determinations regarding “factual disputes.” However, when legal and factual disputes are intertwined or confused, the court must try to separate them to determine what is reviewable. After declining to review the factual disputes, the court addressed Johnson’s attempt to prevent Russell from receiving qualified immunity. However, to do so, she would have to establish a constitutional violation. The court held that the search “was justified at its inception” based on XM’s documented history of violence to other students and the gun threat he made to a student within a teacher’s hearing. Thus, “Russell reasonably believed he had a ‘moderate chance of finding evidence of wrongdoing’” when he had XM take down his trousers for a search. Also, having XM take down his trousers has not been found outside the proper scope when there is a possibility that a gun may be found. Neither did placement in the breakdown room constitute a constitutional violation where XM had just been suspended for a violent act and where several days before, there was an “alarming suspicion” that he had brought a gun to school. Russell was entitled to qualified immunity. Reversed.
Consecutive sentencing; People v Snow
Finding that the trial court did not abuse its discretion by imposing a consecutive sentence, the court affirmed. Defendant was convicted of assaulting a prison employee, as a fourth-offense habitual offender. He was sentenced to 36 months to 5 years “to be served consecutively to his sentences for charges arising from an unrelated case.” Defendant argued that the trial court “failed to provide particularized reasons for imposing a consecutive sentence for his” conviction. The record demonstrated “that the trial court’s rationale for imposing a consecutive sentence was focused on facts specific to defendant, including the circumstances of the instant offense and defendant’s extensive and violent criminal history.” It also expressly considered the factors outlined in Snow when fashioning his sentence.
PIP benefits under the No-Fault Act; Due diligence to identify insurer; Griffin v Trumbull Ins Co; Stanley v Detroit; Statute of limitations; MCL 500.3145(1); Priority; MCL 500.3114; Benefits through the Michigan Assigned Claims Plan (MACP); MCL 500.3172(1); Duty to pay benefits
The court concluded that (1) plaintiff did not exercise due diligence in attempting to identify defendants/appellees-Knight and Progressive and notify them of his claims, (2) he could not maintain a claim against defendant/appellee-Citizens as the assigned MACP insurer, and (3) the court did not “agree with plaintiff that Citizens was required to pay within 30 days of being presented with” his proofs. Thus, it affirmed summary disposition for these defendants. The case involved the interplay between “the limitations period for claims against insurers, MCL 500.3145(1); the conditions under which a person may seek benefits through the MACP, MCL 500.3172(1); and the order of priority in which one must pursue a claim, MCL 500.3114.” The court held that plaintiff’s direct claims against Knight and Progressive were “barred by the statute of limitations because they did not have notice of his injuries or claims within one year after the accident as required by MCL 500.3145(1). Accordingly, the trial court correctly granted summary disposition as to the claims plaintiff asserted directly against them in his amended complaint.” As to the claims under the MACP, he argued “that subsections (b) and (c) support his claims.” Regarding subsection (b), the court disagreed “with plaintiff that no PIP coverage applicable to the injury could be identified. Although plaintiff did not actually identify Knight or Progressive before the statute of limitations expired, they were identifiable.” Applying Griffin and Stanley in this case, the court concluded that he “did not exercise due diligence in attempting to identify them and notify them of his claims.” Plaintiff argued “that he was misled into thinking that [defendant-]Great American provided coverage because proof of insurance from Great American was in the truck’s glove compartment at the time of the accident. However, the ‘onus’ is on the claimant to exercise due diligence in identifying the highest-priority insurer,” and there was no evidence that he “made any inquiries until [1/16/21], to verify whether Great American provided coverage.” Plaintiff also contended “that it would have been impossible for him to learn about Knight’s coverage.” However, he had not contested defendants’ representation to the contrary “in the trial court or on appeal.” Thus, he could not “proceed against Citizens under MCL 500.3172(1)(b).” The court concluded that even if Progressive was “the higher-priority insurer, plaintiff’s lack of due diligence to identify and file a claim with Progressive dooms his claim against Citizens.” As to subsection (c), the court did “not agree that a claim can be sustained under MCL 500.3172(1)(c) by what is essentially a contingent priority dispute between two potential insurers when the claimant did not exercise due diligence in the first place to timely notify either one.”
Policy cancellation notice requirement under MCL 500.3020(1)(b); Nowell v Titan Ins Co; Assigned-claims ineligibility when applicable PIP exists; MCL 500.3114(1); MCL 500.3172(1)(a); Esurance Prop & Cas Ins Co v Michigan Assigned Claims Plan
Holding that defendant-insurer’s (USAU) cancellation notice did not satisfy MCL 500.3020(1)(b), leaving its policy in force and making it the priority PIP insurer, the court reversed and remanded with instructions to enter summary disposition for defendant-Allstate. Plaintiff-Thompson was insured by USAU under a no-fault policy that required installment payments. She missed her first payment, and USAU mailed a cancellation notice on 12/9/22, setting a 12/19/22 cancellation date. She was injured in a 1/5/23 motor vehicle accident. She applied to the MAIPF, and the MACP assigned the claim to Allstate. The trial court granted USAU summary disposition and dismissed plaintiff’s claims against it, reasoning that although the notice was not within ten days “as prescribed,” it was sent within a reasonable period before the accident. On appeal, the court rejected USAU’s position and applied Nowell to MCL 500.3020(1)(b), explaining that because the notice was mailed exactly ten days before the purported cancellation date and mailed from California to Michigan, it was not mailed “so as to reasonably ensure that the notice would arrive at Thompson’s residence and provide Thompson with the potential to have 10 days’ notice of the cancellation,” and therefore “the notice did not comply with MCL 500.3020(1)(b).” The court held that “because the notice of cancellation was not effective in this case, Thompson’s USAU insurance policy was in effect at the time of the motor vehicle accident, and Thompson must seek PIP benefits from USAU,” and further that “a person injured in a motor vehicle accident cannot seek PIP benefits through the assigned claims plan if there is a personal protection insurance policy that is applicable to the injury.”
Auto negligence; Comparative fault; MCL 500.3135(2)(b); The “assured clear distance ahead” rule (MCL 257.627(1)); Cole v Barber; Exceeding the speed limit; MCL 257.627(16) & 257.628(9); Inferring negligence from evidence of a motor vehicle statute violation; Gould v Atwell; Impeding traffic (MCL 257.676b); Intentional infliction of emotional distress (IIED); Doe v Mills; Motion in limine to preclude an officer’s testimony about a vehicle’s speed; Lay witness opinion testimony; MRE 701; Miller v Hensley; Whether a written order accurately reflected the trial court’s bench ruling
The court held that the trial court properly denied defendant summary disposition on plaintiff’s negligence claim and properly granted plaintiff’s motion in limine but erred in denying defendant summary disposition of the IIED claim. As to plaintiff’s cross-appeal, it disagreed that the trial court’s written order on the motion in limine should be vacated on the basis it failed to accurately reflect the trial court’s ruling from the bench. A vehicle driven by defendant struck and killed plaintiff’s wife, Valinda, a pedestrian. Defendant first argued that the trial court erred by denying his summary disposition motion as to the negligence/gross negligence claim. The court disagreed, concluding there was “evidence from which a reasonable jury could find that defendant operated his vehicle negligently.” A police officer who is certified in accident reconstruction “testified that defendant exceeded the posted speed limit of 25 miles per hour when his vehicle struck Valinda, and that he never engaged his brakes. Indeed, the vehicle does not appear to slow down in the video footage of the incident.” The video showed that while “it was dark, streetlights illuminated the area, and defendant’s headlights illuminated the path ahead of him. This evidence could support a finding that [he] failed to exercise due care, . . . and violated statutes concerning speeding and the assured clear distance ahead rule, such that the jury may infer negligence.” The court also found that there was evidence allowing a jury to “conclude that Valinda was negligent.” It noted that neither “party presented any evidence that pedestrians had a right-of-way at that intersection. Circumstantial evidence suggests that Valinda did not see the vehicle, and therefore did not look to see whether a vehicle was approaching. A jury could therefore find that she did not exercise due care before or while crossing, . . . or that she impeded traffic under MCL 257.676b.” Thus, the court concluded there was “evidence from which a jury could determine that both defendant and Valinda shared fault for the accident.” But as to the IIED claim, the court found that no evidence supported the first element. As to the motion in limine, it held that the trial court did not abuse its discretion by precluding another police officer from testifying about the speed of defendant’s vehicle where his “testimony was not made on the basis of [his] personal observations and analysis of the accident scene.” Affirmed in part, reversed in part, and remanded.
Appointment of a conservator & a guardian for a legally incapacitated adult; Sufficiency of the evidence; “Incapacitated individual”; MCL 700.1105(a); MCL 700.5401(3)(a) & (b), In re Estate of Schroeder; In re Conservatorship of Bittner; Right to an independent medical evaluation; MCL 700.5406(2) & 700.5304(2); Admission of a doctor’s report; MCL 700.5304(1) & (3); MCR 5.405(A)(1); Lack of cross-examination; Lesser remedy than full conservatorship & guardianship; MCL 700.5306(3); MCL 700.5407(1)
The court held that the probate court did not err in admitting a doctor’s report or deprive appellant (AS) of her right to secure an independent medical evaluation. Further, it was not responsible for her “failure to avail herself of the right to secure an independent medical evaluation or to call the doctor as a witness.” It also did not clearly err in “finding clear and convincing evidence that AS suffered from serious cognitive and behavioral limitations that necessitated appointment of a guardian and a conservator.” Finally, it “appropriately considered and rejected the possibility of lesser remedies.” AS was 86 years old when she was hospitalized after she ran out of her home “in a state of undress. She was discharged to a skilled nursing facility that” successfully petitioned for the appointment of a guardian and a conservator for her. On appeal, the court agreed with her that she had “a right to secure an independent medical evaluation, but” disagreed with her assertion that the probate court deprived her of it. The “probate court granted an adjournment so that AS could obtain an evaluation, then granted another adjournment for unrelated reasons, and finally granted a third adjournment of 56 days, which was longer than the 45 days that AS requested, so that AS could obtain another evaluation from a different evaluator.” These accommodations protected her “right to secure an independent evaluation[.]” The court also rejected her evidentiary challenges. As to the sufficiency of the evidence that she needed a guardian and a conservator, she dismissed “the evidence as merely suggesting a propensity for clutter and the kind of orneriness that might be expected of advanced age, but AS in fact hoarded rotten food, which goes beyond mere clutter, and accused various people of conspiring against her, which goes beyond mere orneriness. Therefore, the probate court did not clearly err by finding clear and convincing evidence that AS was an ‘incapacitated individual’ under MCL 700.1105(a), or by finding that appointment of a guardian was ‘necessary as a means of providing continuing care and supervision’ of AS under MCL 700.5306(1).” As to the conservatorship, the evidence also showed she “was ‘unable’ to perform the tasks necessary to ‘effectively’ care for her assets.” Affirmed.
Whether condo development units had reverted to general common elements; The former version of MCL 559.167(3) (old § 67); Whether the units were considered “developed” by definition as “site” condos; Saugatuck Dunes Coastal Alliance v Saugatuck Twp; “Structure” condos; Whether the units were considered “developed” on the basis the roads & utilities had been installed
Holding that the condo development units at issue were not “developed” for purposes of former MCL 559.167(3) (old § 67), the court affirmed summary disposition for defendant-condo association in this dispute over units plaintiff-township obtained via tax foreclosure sales. There was no question that the “units were not designated as ‘must be built,’ were in fact never built, and were not timely withdrawn under old § 67.” Plaintiff asserted the trial court erred in granting defendant summary disposition “because under old § 67, only ‘undeveloped’ units are subject to reversion to general common elements, plus the units at issue were considered ‘developed’ by definition as site condominiums and because the roads and utilities had in fact been developed.” The court disagreed. First, giving “effect to every word, phrase, and clause within the master deed, amendments to the master deed, and the project’s bylaws, the units at issue were not site” condos. Interpreting the condo “documents as creating both structure condominiums and site condominiums would render certain language in the condominium documents meaningless; it would also create an unmanageable situation for defendant and any traditional condominium co-owners regarding the maintenance, repair, and replacement of structural components.” Thus, it concluded the trial court did not err in ruling that the units were not site condos, and “not considered ‘developed’ on this basis.” The court also rejected plaintiff’s argument the trial court erred because the units “were considered ‘developed’ as the roads and utilities had in fact been installed.” The court noted the only evidence introduced as to “the common-elements’ construction was: (1) a brief statement in plaintiff’s answer to defendant’s motion for summary disposition, indicating that the roads and utilities were built; and (2) plaintiff counsel’s brief statement at the motion-hearing, indicating ‘All the roads are in. All of the utilities are in . . . .’ There are no pictures, graphs, affidavits, or the like proving the construction of any roads or utilities. Accordingly, the trial court did not err by determining that the units were not considered ‘developed’ on this basis.”
Order to take child into protective custody; Children’s Protective Services (CPS)
Holding that the trial court did not clearly err by issuing the order to take the child into protective custody, the court affirmed. The court found that “the referee had reasonable cause to believe that the conditions listed in MCL 712A.2(b)(1), MCL 712A.2(b)(2), and MCR 3.963(B)(1) existed because the petition for removal provided that it was contrary to the welfare of the child to remain in respondent-mother’s care due to ongoing and chronic domestic violence, substance abuse, and mental health issues. The petition detailed that respondent-father was injured in, and respondent-mother was arrested for, the recent domestic violence incident where the child was present. The petition also explained that at the time of the incident, both respondents had consumed alcohol, and respondent-mother had not been taking her court-ordered mental health medications.” The petition further detailed CPS prior involvement with the mother, including: (1) her “lack of compliance with mental health treatments; and (2) doctor’s statements indicating that respondent-mother ‘is very delusional and psychotic when she is not taking her medications’ and ‘would not be able to care for herself, let alone safely care for [the child] if she were not [sic] stop her medications.’ Furthermore, the referee clearly made the findings required by MCR 3.963(B) in the order to take the child into protective custody.” The court also noted that the “order also included that no remedy other than protective custody was reasonably available to protect the child and that consistent with the circumstances, reasonable efforts were made to prevent or eliminate the need for removal of the child, including ongoing services from CPS, law enforcement contact and investigation, safety planning, team decision making meetings, and Community Mental Health services.” Thus, the court held that because “the referee had reasonable cause to believe that the conditions required for removal existed, and the required findings were made, we are not left with a definite and firm conviction that a mistake was made.”
Termination under § 19b(3)(c)(i); Failure to participate in & benefit from services; In re White; Child’s best-interests; In re Moss
The court held that § (c)(i) was met and that termination of respondent-father’s parental rights was in the child’s best interests where he failed to benefit from the services offered and would be unable to rectify the conditions that led to the adjudication. In terminating his parental rights, the trial court noted his “history of combative, aggressive, and defiant conduct throughout the case.” On appeal, the court rejected respondent’s challenge to the finding that a statutory ground existed, noting that more than 540 days had elapsed since the initial disposition. Further, his partial participation in services did not translate into change as he “engaged in an extraordinary and persistent degree of combativeness, defiance, aggression, selfishness, and lack of accountability” throughout the case. He refused to sign various documents, disrupted parenting time to the point of suspension, and never provided the requested neurological or psychiatric evaluations. It noted that a “‘parent’s failure to participate in and benefit from a service plan is evidence that the parent will not be able to provide a child proper care and custody[,]’” and that “the ‘Legislature did not intend that children be left indefinitely in foster care, but rather that parental rights be terminated if the conditions leading to the proceedings could not be rectified within a reasonable time.’” As to best interests, the court acknowledged respondent’s bond but upheld termination given the child’s need for stability and the strong record of domestic violence and noncompliance. The record showed respondent “‘simply failing to work within the service plan, with his counsel, with the placement, with the [trial] court, or with anyone involved in this case.’” The child had been out of respondent’s care for 23 months, over half his life, was thriving in a relative placement, and needed permanency. Affirmed.