Jennifer Dukarski Fishman Stewart Matthew W. Frank Cynthia Haffey Michael D. Hanchett Mary Massaron Megan Mitchell Ryan C. Washburn
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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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The Elliott-Larsen Civil Rights Act (ELCRA) (MCL 37.2101 et seq.); Race & sex discrimination; Hecht v. National Heritage Acads., Inc.; MCL 37.2202(1)(a); Adverse employment action; Chen v. Wayne State Univ.; Suspension reduced to a written reprimand; Sexual harassment; MCL 37.2103(i); Hostile work environment; Haynie v. State; Respondeat superior liability; Radtke v. Everett; Distinguishing Weberg v. Michigan (Unpub.)
Concluding that plaintiff offered no evidence that her suspension reduced to a written reprimand was a materially adverse employment action, the court held that her failure to show an adverse action precluded relief on her race and sex discrimination claims under the ELCRA. As to her sexual harassment claim, while it found that she could show the existence of a hostile work environment, the claim failed because she could not establish respondeat superior liability. Thus, the court affirmed summary disposition for defendants-employer (the city) and supervisor (Cashion). It determined that there was “no evidence that plaintiff’s discipline altered the circumstances and conditions [of] plaintiff’s employment at all—let alone materially.” Viewing the evidence in the light most favorable to her, the record showed that her “job duties were altered due to plaintiff’s continuing mental health problems as a result of Cashion’s actions on [4/16/16]. Plaintiff was not able to continue her full job duties shortly after the incident and had restricted work capacity. The disciplinary actions taken against plaintiff as a result of the 2017 Internal Affairs report did not alter these circumstances. Plaintiff provided no evidence that the ultimate reprimand she received changed her job duties in any way.” Further, she did not offer any “evidence that the reprimand resulted in her being overlooked for or denied a promotion or transfer, prevented her from going back to the job duties she had prior to the incident, decreased her wage or salary, or caused any other alteration in her employment that would not otherwise have occurred.” As to her sexual harassment claim, the court concluded that there were “triable issues of fact as to whether plaintiff met the second, third, and fourth prongs.” However, the claim failed on the fifth prong. While she told “the Internal Affairs’ investigators that Cashion touched her arm and leg/thigh, she admitted that she did not inform them that Cashion touched her vaginal area or sexually assaulted her. She only described the incident as such in the documents provided after the litigation commenced. Therefore, the city could not have taken any remedial action based on the single extreme incident that arguably caused the hostile work environment because it had no notice of the specific sexual nature of” the alleged conduct during its investigation.
Breach of contract; AFT MI v. Michigan; Latent ambiguity; Shay v. Aldrich; Negligence; Composto v. Albrecht; Duty; Seldon v. Suburban Mobility Auth. for Reg’l Transp.; Nonperformance of a contractual obligation; Fultz v. Union-Commerce Assoc.
The court held that plaintiff received the benefit of his bargain with defendants (PH Transfer Company and its employee, Carpenter) thus, the trial court did not err when it granted defendants summary disposition as to his breach-of-contract claim. It also did not err when it granted them summary disposition on his negligence claim. Plaintiff contended “the contract required installation of a 5-ton geothermal unit, and defendants installed a 4-ton unit, thereby breaching” their contract. The court noted that “the trial court concluded the contract was ambiguous with respect to whether the notation in the contract to a 5-ton size referred to the NVV048A’s heating or cooling capacity. With reference to extrinsic evidence, [it] found that the parties intended to install a geothermal unit that produced a 5-ton heating capacity, which is, in fact, what defendants installed.” The court detected no error in the trial court’s finding, or in the trial court’s determination that “plaintiff intended to contract for a geothermal unit with a 5-ton heating capacity, and that plaintiff did, in fact, receive that unit.” As to plaintiff’s negligence claim, the court held that under Fultz, “Carpenter’s decision to install a 4-ton unit instead of a 5-ton unit could only give rise to a breach-of-contract claim and not a negligence claim. Because any duty owed by Carpenter regarding the installation of the geothermal unit was not separate and distinct from Carpenter’s contractual duty to install the unit, plaintiff did not have a valid negligence claim.”
Hearsay; MRE 803(4) (exception for statements made for the purpose of medical diagnosis or treatment); People v. Mahone; People v. Duenaz; People v. Yost; Hearsay within hearsay; People v. Hawkins; Right of confrontation; U.S. Const. amend. VI; Const. 1963, art. 1, § 2; People v. Garland; Ineffective assistance of counsel; People v. Chambers; MRE 803(2) (excited utterance hearsay exception); People v. Smith; Prosecutorial misconduct; People v. Bahoda; People v. Lane; Presumption jurors are impartial; People v. Miller; Jury voir dire; People v. Tyburski; People v. Bailey; Opinion testimony; People v. Dobek; Shifting the burden of proof; People v. Fyda; People v. Fields; Cumulative effect of errors; People v. LeBlanc; People v. Taylor; People v. Mayhew; Sentencing; Consecutive sentences; MCL 750.520b(3); Judgment of sentence (JOS); Sexual assault nurse examiner (SANE)
Finding that victim-A’s statements were admissible under MRE 803(4), and rejecting defendant’s prosecutorial misconduct claims, the court affirmed his CSC convictions and sentences. But it remanded for modification of his JOS to specify that the CSC I sentences were to be served consecutively to each other, but concurrently with the CSC III sentences. He argued that he was denied a fair trial by the admission of hearsay statements from A and A’s mother to M, a SANE who examined A the day after defendant’s alleged sexual abuse. He argued that A’s statements during the exam were hearsay and not admissible under MRE 803(4), the “exception for statements made for the purpose of medical diagnosis or treatment, because the examination was intended primarily for investigative purposes, not for the purpose of medical diagnosis or treatment.” The court disagreed. “The fact that an examination is initiated in part to investigate a sexual assault is not dispositive.” The relevant question was “whether the declarant’s statements were reasonably necessary for medical diagnosis or treatment.” M described examining A “for physical injuries and to determine what medical treatment might be necessary. [M] explained that when examining a patient, she needs to ask the patient what happened to determine what type of examination to conduct and to determine what treatment or procedures might be necessary.” When she examined A, no physical injuries were apparent, but A “complained of pain in her pelvic area. [M] found some redness or irritation to tissue above the clitoris.” While the exam was conducted after A’s “mother contacted the police to report a sexual assault, the record discloses that a purpose of [M’s] examination was to diagnose a possible injury, and to determine whether [A] required treatment and what treatment was appropriate.” Thus, A’s statements were admissible under MRE 803(4). As to the statements by A’s mother during the exam, the court concluded that because her “statements were made in the context of assisting [M’s] medical diagnosis and treatment, they too qualified for admission under MRE 803(4).” Defendant further complained that her “statement included a statement from an aunt who described seeing defendant in the hallway with a telephone.” He asserted that this “should have been excluded because it was double hearsay.” The court found there was “no reasonable basis for concluding that the aunt’s limited statement affected” the trial’s outcome.
Whether a prosecution witness’s testimony was contrary to People v. Smith, People v. Peterson, & People v. Thorpe; Whether the admission of the testimony was prejudicial; People v. Carines; Harmless error; People v. Whittaker; Presumption that jurors follow their instructions; People v. Bruner; Presumption that jurors are capable of assessing an expert’s testimony; People v. Kowalski
Holding that a witness’s (pediatrician-M) diagnosis was unlikely to have had such an overwhelming effect on the jury—especially compared to the victim’s own testimony and in light of the other witnesses and the obvious weaknesses brought out in the rest of M’s testimony—that it affected the outcome of the proceedings, the court concluded that its admission did not so unfairly prejudice defendant as to require reversal. He was convicted of CSC I and II. In a prior appeal, the court rejected his hearsay challenges and his argument that another witness’s testimony constituted improper vouching. The Supreme Court found that M’s testimony was improper and remanded on the issue of prejudice. On remand, the court began by addressing the dissent, noting that “if reversal was necessary simply because [M’s] testimony was erroneous, there would be no need to analyze whether it was actually prejudicial, and our Supreme Court would not have remanded the matter to us.” It then held that admission of M’s testimony was not so unfairly prejudicial as to require reversal. The court noted that the effect of the victim’s own testimony was “highly significant” to whether M’s testimony was prejudicial in addition to being improper, and that M “was simply one out of several individuals who corroborated what the victim had said, and the jury was aware that her diagnosis was based entirely on her assessment of the consistency of the victim’s statements.” In addition, M “had also been impeached by vigorous and competent cross-examination drawing out serious deficiencies in the basis for her diagnosis, such as the fact that she did not personally interview the victim and did not even know who did, internal inconsistency in how she described her diagnosis, and her obvious evasiveness when asked about what evidence—if any—underlay her diagnosis.” Thus, the jury was aware that the victim’s “consistency was of critical concern, and it was well-situated to make its own determination of just how consistent her statements had actually been.” It declined to follow the dissent’s “logic for concluding that the jury would somehow give more weight to [M’s] testimony after being informed that [M] had less of an opportunity to observe the victim than had the jury itself.” The court presumed “the jury followed their instructions and weighed the credibility of each witness as directed when reaching their verdict.” Affirmed.
Other acts evidence; Reference to the Michigan’s Offender Tracking Information System (OTIS) & defendant’s parolee status; MRE 404(b); People v. VanderVliet; Identity as a proper purpose; Relevance; People v. Crawford; MRE 403; Unfair prejudice; People v. Gipson; People v. Mills; People v. Watkins; Harmless error; People v. Lukity; Limiting jury instruction; People v. Kelly; People v. Mullins
Holding that the trial court did not abuse its discretion in allowing evidence related to OTIS and defendant’s parolee status, the court affirmed his CSC III and resisting or obstructing an officer convictions. The prosecution provided notice before trial that it would seek permission to admit other acts evidence under MRE 404(b), specifically the victim’s (JH) “discovery of defendant’s identity via her use of OTIS.” The court noted that her testimony showed she used OTIS to obtain a photo “of her attacker and information about him, which she reported to the police and his parole officer, leading to defendant’s arrest as the alleged perpetrator of the assault against her. The prosecution’s use of this evidence to prove identity was a proper purpose under MRE 404(b)(1).” Next, the court found that her “use of OTIS was probative of a material fact at issue in the trial—defendant’s identity as the person who sexually assaulted her.” The record made it clear that his “identity was a material fact at issue during the trial. JH testified that the afternoon preceding the sexual assault was the first time that she met the person who assaulted her. She also testified that she had not been provided with that person’s name during their interactions. Therefore, the jury was required to consider whether she actually identified the correct person as the one who had assaulted her, making that issue a material fact for the jury to decide.” The court concluded that without the evidence that she used OTIS to find him, “the jury would have been left to speculate about how JH was able to identify defendant as her attacker despite having only met him once and not having been introduced to him by name.” Finally, the court held that the evidence had significant probative value and the prejudice to defendant was relatively minor, if any. The method JH used to identify her attacker “was important for the jury to consider. Moreover, although the fact that defendant had been recently paroled was revealed, the jury was not made aware of the actual crimes of which defendant had been convicted. The fact that the jury was made generally aware that defendant had been convicted of a crime in the past, without more, does not suggest that the jury would have turned to passion or bias in deciding to convict defendant of the charged crimes.”
Trip & fall on uneven pavement; Immunity under the Governmental Tort Liability Act (MCL 691.1401 et seq.); Exceptions; MCL 691.1407(1); Johnson-McIntosh v. Detroit; Duty to maintain a sidewalk in reasonable repair; MCL 691.1402a(1); “Municipal corporation”; MCL 691.1401(d); Open & obvious defense; MCL 691.1402a(5); Buhl v. Oak Park; Price v. Kroger Co.; Premises liability; Buhalis v. Trinity Continuing Care Servs.; “Special aspects”; Hoffner v. Lanctoe; Weakley v. Dearborn Hts.; Lugo v. Ameritech Corp.; Principle that whether a statute is fair is not a proper consideration for the court; Ambs v. Kalamazoo Cnty. Rd. Comm’n; Brickey v. McCarver
The court held that the trial court did not err by granting defendant-city’s motion for summary disposition of plaintiff’s claim under the open and obvious doctrine. She sued defendant for injuries she sustained when she tripped and fell on uneven pavement. Defendant claimed it was entitled to summary disposition because the uneven sidewalk was open and obvious and no special aspects existed. Plaintiff responded that the open and obvious doctrine was not an applicable defense to defendant’s statutory duty to maintain the sidewalk. On appeal, the court rejected plaintiff’s argument that the trial court erred by granting defendant’s motion for summary disposition because the sidewalk was unreasonably dangerous. “[T]he risk presented by the raised slab of sidewalk was the risk of falling a short distance to the ground.” The court could not “conclude that the sidewalk posed an unreasonable risk of harm as that term of art has been decided in our case law.” Rather than the “30-foot open pit conjured up by our Supreme Court in Lugo, here, the record reveals that the sidewalk presented a typical hazard that is commonly confronted.” The court also rejected her claim that the trial court erred because its holding was tantamount to a negation of the duty to maintain public sidewalks in a condition safe for public travel, noting that “appellate courts wading into the waters of the ‘fairness’ of statutory language is no longer in vogue.” It is for the Legislature “‘to address the policymaking considerations that are inherent in statutory lawmaking.’” As noted by the trial court, “today’s judges are bound to follow this creed: ‘where the language of a statue is clear, it is not the role of the judiciary to second-guess a legislative policy choice; a court’s constitutional obligation is to interpret, not rewrite, the law.’” Affirmed.