Facts – Plaintiff was bitten by a dog owned by Defendant's tenant. Another child had been bitten by the same dog approximately two months earlier. Plaintiff brought this action alleging that Defendant knew of the vicious nature of the dog and failed to exercise reasonable care to prevent an unreasonable risk of harm. The Trial Court granted Summary Disposition to Defendant finding that he owed no duty to Plaintiff.

The Court found that Defendant landlord had relinquished control over the property to his tenant. The tenant did not own a dog at the time she began renting the property, and the oral rental agreement did not address dog ownership. A landlord's power to evict a tenant does not establish control over the dog. While the owner of a dog who has knowledge of its dangerous propensities would be strictly liable (or liable under the dog bite statute), this liability is not extended to a person who neither owns nor possesses the animal (Stout v Carver, Michigan Court of Appeals Unpublished Decision dated March 15, 2002, Docket Number 228373).

Recommendation – When investigating a dog bite claim, it is very important to determine ownership as well as possession and control over the animal. As in this case, mere ownership of the property upon which the dog resides may not be enough to establish a prima facie case of negligence.

Facts – Plaintiff had filed a multi-count complaint. Defendant moved for Summary Disposition on Count IV, which was granted. Plaintiff did not appeal that decision. The action was then submitted to Case Evaluation. Both parties accepted the award. Defendant then requested an Order dismissing the entire case with prejudice under MCR 2.403(M)(1) (Which indicates that if all parties accept, judgment will be entered. The judgment or dismissal shall be deemed to dispose of all claims). Plaintiff responded that it had reserved its right to appeal the Summary Disposition on Count IV, arguing that the Case Evaluation had focused on the remaining claims in Counts I-III. Plaintiff further asserted that the Case Evaluation Award covered only that portion of the case.

The Michigan Supreme Court reiterated the long-standing proposition that the entry of a judgment pursuant to acceptance of a Case Evaluation Award is, in essence, a consent judgment. One may not appeal from a consent judgment, order or decree. The Court indicated that the unambiguous language of MCR 2.403(M)(1), evidences the Court's desire to avoid bifurcation of civil actions submitted to Case Evaluation. To the extent that prior case law has been read to suggest that parties may except claims from Case Evaluations under the current rule, those cases are overruled. If all parties accept the Panel's evaluation, the case is over (Cam Construction v Lake Edgewood Condominium Association, Michigan Supreme Court Opinion dated March 12, 2002, Docket Number 116751).

Recommendation – There should now be no question but that an acceptance by all parties of a Case Evaluation Award, will bring litigation to a final conclusion, notwithstanding the presence of an appealable issue. If an appeal is to be taken, then a stay of proceedings should be obtained from the Trial Court and Case Evaluation should be adjourned.

Facts – Plaintiff's purchased a Chevrolet dealership. Later, they learned that it was woefully undercapitalized and doomed to fail. Plaintiff's filed a lawsuit asserting two counts of fraud. Defendant's filed a Motion for Summary Disposition asserting that Plaintiff's claims were barred by the Statute of Limitations. Defendants argued that the Discovery Rule does not apply to a fraud action unless Defendant conceals the cause of action.

The pivotal issue presented was whether the limitations period for Plaintiff's fraud action began running when the alleged fraud occurred or, under the Common Law Discovery Rule, when Plaintiffs discovered it. The Court held that in this case, the Statute of Limitations was extended and that Common Law did apply.

The Common Law Discovery Rule provides that in certain circumstances, the limitations period does not begin to run until the Plaintiff discovers or should have "by the exercise of reasonable care" discovered the cause of action. The purpose of the Statute of Limitations is to provide a Plaintiff with a reasonable opportunity to commence suit. The Discovery Rule is not available to claims of ordinary negligence (Boyle v General Motors Corporation, et al., Michigan Court of Appeals Published Decision dated March 22, 2002, Docket Number 225536).

Recommendation – When investigating a claim where the "Discovery Rule" may operate to extend the Statute of Limitations, one should determine whether the cause of action could have been discovered earlier by the use of reasonable care. This rule will be applied in appropriate instances, and only where there is objective and verifiable evidence so that there is some indicia of assurance or reliable fact finding.

Facts – Five physicians testified at Trial, that at the time they examined and treated Plaintiff he was unable to return to his job as a truck hauler due to his injuries. One of Plaintiff's treating physicians referred him to an aggressive work conditioning program. After Plaintiff had successfully completed that therapy, the doctor felt that the patient could return to his regular job. Based on that opinion, Defendant insurer terminated Plaintiff's benefits.

One of the issues presented to the jury involved Plaintiff's claim for replacement services. The Court found that Plaintiff had failed to sustain his burden of establishing that any product, service or accommodation was reasonably necessary for Plaintiff's care, recovery or rehabilitation. It was found that Plaintiff had also failed to establish that replacement services were incurred. Apparently, there was only vague testimony with regard to services rendered. Plaintiff admitted that he could perform some cooking, vacuuming and cleaning. One of the treating physicians testified that Plaintiff might not be able to use a lawn mower or perform heavy lifting for a prolonged period of time, but that Plaintiff should be encouraged to do as much as he could around the home. Defendant's claim specialist testified that Plaintiff had failed to submit information regarding individuals allegedly performing replacement services such as Social Security Numbers, nature of services provided or the dates services were rendered.

This Court again reviewed the burden of proof which will be required of a Plaintiff seeking these types of benefits:

1. The expense must have been incurred;

2. The expense must have been for a product, service or accommodation reasonably necessary for the injured person's care, recovery or rehabilitation; and

3. The amount of the expense must have been reasonable.

(Williams v Continental Insurance Company, Michigan Court of Appeals Unpublished Decision, dated March 12, 2002; Docket Number 223991, 225901).

Recommendation – When reviewing a claim for replacement services, one should insist that the claimant (or claimant's attorney) provide detailed information regarding benefits allegedly owing. The burden of proof is on the claimant to establish the right to benefits.

Facts – Plaintiff purchased tickets to attend a circus at the Joe Louis Arena. Although Plaintiff claimed to be handicapped, she never requested handicapped accessible seating. When the circus began, the lights in the arena were turned down. During intermission, Claimant took her son to use the restroom and to visit the concession stand. When they were ready to return to their seats, the show had already started and the house lights were down. There were no aisle lights or foot lights on the second flight of stairs leading to Plaintiff's seat. On her way up, she missed a step and fell backwards into a cement guardrail.

Plaintiff's Complaint alleged negligence in failing to adequately illuminate the stairway, failing to assist Plaintiff in returning to her seat, and in failing to reseat Plaintiff in appropriate handicapped seating. The Complaint also claimed that Defendant violated the Persons With Disabilities Civil Rights Act (MCL 37.1101 et. seq.).

The Court found that Plaintiff was aware of the condition of the stairs and of the lighting which existed at the time of her accident. Plaintiff did not claim that the steps themselves were defective. Any claimed danger was open and obvious to the average user of ordinary intelligence. The "special aspects" necessary to remove an ordinarily observable condition from the open and obvious dangerous doctrine were not present in this case (i.e. – those conditions that create a high risk of harm or severity of harm if not avoided, Lugo v Ameritech Corp, Inc, 464 Mich 512 [2001]).

Applying previously annunciated principles, the Court did not find that the danger which allegedly existed in this case was unavoidable or that it presented a uniquely high likelihood of severe harm or death. Plaintiff failed to present any evidence that the unlit stairway to her seat was an unavoidable risk. Rather, Plaintiff had several other available options.

With respect to the Persons With Disabilities Civil Rights Act claim, this Court noted that the statute simply requires that Defendant, as a place of public accommodation, must provide an "equal opportunity" for disabled individuals to use and enjoy its services and facilities. Defendant in this case did provide seating for disabled individuals. Plaintiff was aware of that fact but never asked if she could be seated in a more accessible area. Thus, there was no violation by Defendant because it did not deny Plaintiff the opportunity to use or enjoy the facilities (West v Olympia Entertainment, Inc, Michigan Court of Appeals Unpublished Decision dated March 19, 2002, Docket Number 229044).

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