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Facts - As a part of its claim, Plaintiff's Estate argued that it was entitled to damages based on the decedent's loss of enjoyment of life. The Federal Court correctly noted that in Michigan, there is no common law right to recover damages for a wrongfully caused death. As a Statute in Derogation of the common law, the Wrongful Death Act must be narrowly construed so that only those damages explicitly provided for in the Act are recoverable.

The Court noted that the Wrongful Death Act provides for three categories of damages:

(1) Reasonable medical, hospital, funeral, and burial expenses for which the estate is liable;

 

(2) Reasonable compensation for the pain and suffering, while conscious, undergone by the deceased person during the period intervening between the time of the injury and death; and

 

(3) Damages for the loss of financial support and the loss of society and companionship of the deceased.

The first and third categories embrace only losses incurred by a decedent's estate or survivors. They do not authorize recovery for the decedent's enjoyments of life. Although the second category addresses the decedent's own losses, pain and suffering are compensable under the Wrongful Death Act only if they were experienced consciously between the time of injury and death. If hedonic damages are recoverable therefore, they are recoverable only to the extent that the decedent experienced a loss of enjoyment of life before dying. Frontier Ins Co v Blaty, et al, United States Court of Appeals Sixth Circuit, Decided July 24, 2006, Docket Numbers 04-1043/1630/1686, Case Name 06a0258p.06.

Recommendation - When evaluating a claim of this type, be mindful of the fact that any claimed loss of enjoyment caused by death is not actual, because it is not consciously experienced by the decedent. The basic purpose of the act is to compensate injured persons for their actual harm. The actual harm suffered by the decedent does not include the loss of enjoyment of life rendered unavailable by death.

Facts – Plaintiff and his partner worked for a subcontractor of Comcast, a local cable service provider. The partner had made a prior service call at Defendant's home, where he encountered a very aggressive dog. On the date of the incident at issue in this case, Plaintiff and his partner installed a cable converter at Defendant's home and then left for another service call. The two gentlemen returned to Defendant's home later that day. Defendant's dog was in the front yard, barking and growling. It was tied to a long leash which was secured in the back yard.

As Plaintiff approached Defendant's front porch, the dog repeatedly jumped and lunged, and was constantly barking and snarling.

It was determined that Defendant's outside cable line was in need of replacement. Defendant was asked to make sure that the dog could not get into the back yard where the cable line needed to be accessed. As Plaintiff and his co-worker walked around the side of Defendant's garage and into the back yard, the dog came charging toward them. Plaintiff began to run, tripped or slipped on the soft muddy ground and ruptured his Achilles tendon. Plaintiff brought this action asserting claims of common law-strict liability and negligence.

Defendant argued, in part, that the Open and Obvious Doctrine barred Plaintiff's action because he should have known of the soft, muddy ground on which he tripped or slipped. The Court found, however, that Plaintiff's claim was based on Defendant's failure to reasonably control the dog and not the alleged hazard presented by the muddy condition of the ground. While there is some support for the proposition that a premises liability action may be founded on a dog's presence on the land, the duty owed by a landowner is separate and distinct from the duty owed by the dog's owner. Hiner v Mojica, Michigan Court of Appeals Published Decision dated July 20, 2006, Docket Number 267521.

Recommendation – When deciding what particular defenses may apply to a case of this type, a detailed reading of Plaintiff's Complaint must be made. If the claim is based on premises liability principles, the Open and Obvious Doctrine will apply. If the action is based on a separate duty which derives from ordinary negligence principles, rather than a premises liability theory, alternative defenses may be available.

Facts – This case presents an issue of first impression to decide whether the assumption of risk provision of the SASA (MCL 408.342(2)), as a matter of law bars a skier injured in a collision with another skier from filing a claim against the other skier. Although the Court of Appeals did not feel that the skier should be immune, precedent required a conclusion that the Defendant was entitled to immunity for the skiing collision, regardless of whether he violated his duty under the SASA to ski safely. Rusnak v Walker, Michigan Court of Appeals Published Decision dated July 20, 2006, Docket Number 264671.

Recommendation – We suspect that we have not heard the last of this issue. This Appellate Panel urged the Supreme Court to clarify, and if necessary, the legislature, to reconcile the dilemma presented by established precedent under the SASA with regard to absolute immunity. Stay tuned.

Facts – Plaintiff was a passenger in a truck driven by Defendant Werth, owned by Defendant Colmus. Werth was towing a trailer when he lost control of the truck. Plaintiff complained of pain and some numbness in his fingers after the accident. He was taken to the emergency room and admitted to the hospital, where he was diagnosed with an avulsion fracture of his C2 neck vertebra with no displacement, a chest contusion and lumbar sprain. A MRI revealed a herniated disk between his C5 and C6 vertebra. Plaintiff also suffered an injury to his left eye.

The defense moved for Summary Disposition arguing that Plaintiff's injuries did not meet the serious impairment threshold necessary for recovery. In granting the motion, the Trial Court found that Plaintiff had failed to demonstrate that his general ability to lead his normal life had been affected by the injury.

The Michigan Court of Appeals upheld the lower Court decision for the reason that although Plaintiff had arguably shown an objective manifestation of an injury, Plaintiff failed to show that his initial injuries, when coupled with any residual effects, changed his general ability to lead his normal life. Basner v Werth, et al, Michigan Court of Appeals Unpublished Decision dated June 27, 2006, Docket Number 267236.

Recommendation – This case was handled by our office. Through discovery, it was determined that Plaintiff had returned to work in some capacity. That fact, coupled with inconsistent testimony and lack of objective evidence to support his claim that his injuries substantially impacted his ability to work, assisted in reaching this favorable result.

Should you have any questions or comments regarding this or any of our newsletters, please feel free to contact us by voice 989.799.3033, e-mail jtc@saginaw-law.com or write to Collison & Collison, P.C., 5811 Colony Drive, North, P.O. Box 6010, Saginaw, MI 48608-6010.

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