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This newsletter has been compiled utilizing the latest reported Michigan Court of Appeals and Supreme Court Decisions. Case citations (if published at the time this newsletter is distributed) will reference the specific reporter, volume and page number. Unpublished Decisions (or those which have not been published as of the date of newsletter distribution) will be cited by Appellate Slip Opinion number. Copies of all Decisions summarized within this newsletter are available for your review upon request. Questions and comments are welcomed.

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This new procedure will apply to appeals filed on and after January 1, 2005, arising solely from Orders Granting or Denying Motions for Summary Disposition under MCR 2.116. The goal of this Administrative Order is to dispose of these types of appeals within approximately six months from the date of filing. It applies to all appeals from Orders Granting or Denying Summary Disposition. Deadlines to file claims and applications remain essentially unchanged. Deadlines for briefing and transcript production will be expedited.

These appeals will have priority review by the Court of Appeals Research Division. A case may be removed from the Expedited Track via a Motion from either party, or on the Court’s own Motion. This project has a "sunset" date of December 31, 2006. By that date, the Supreme Court will determine whether to discontinue, change or continue the Expedited Track for Summary Disposition appeals.

Facts – Plaintiff was a passenger in a car being operated by Defendant Williams, when it collided with a car being driven by Defendant Edwards. Plaintiff testified that as he and Williams were approaching the intersection, he told Williams to slow down. Williams did not stop at the intersection stop sign and a collision with Edwards followed. Defendant Edwards testified that he had been traveling not more than five miles per hour over the speed limit.

In upholding the Trial Court’s grant of Summary Disposition in favor of Defendant Edwards, the Court of Appeals held that legal cause normally involves examining the foreseeability of consequences, and whether the Defendant should be held legally responsible for such consequences. While the issue of proximate cause is usually a factual question to be decided by the Jury, the Trial Court may dismiss a claim for lack of proximate cause where there is no issue of material fact.

In this case, the Trial Court held that going five miles over the speed limit under the circumstances presented (that is, when another vehicle ran a stop sign and entered into the alleged speeder’s lane of travel), was not a cause in fact of the collision. In other words, even if Defendant was not exceeding the speed limit by five miles an hour, the collision and Plaintiff’s injuries would have occurred and no reasonable Jury could infer otherwise. Walker v Edwards and Williams, Michigan Court of Appeals Unpublished Decision dated November 16, 2004, Docket No. 249776.

Recommendation – As illustrated above, the cause in fact element requires a showing that "but for" the Defendant’s actions, the Plaintiff’s injury would not have occurred. Where investigation reveals that a Plaintiff has failed to establish the elements necessary for a negligence claim, a Motion for Summary Disposition should be filed.

Facts – Plaintiff argued that the Jury’s finding of a serious impairment of body function mandated a finding of non-economic damages under MCL 500.3135. The Michigan Court of Appeals disagreed. That statute provides only that a Defendant is "subject to" liability if a person shows a serious impairment of body function. Even if a person’s ability to lead his life has been affected, a Plaintiff must nevertheless prove that he suffered non-economic damages as a result.

A Jury’s determination of the amount to allow for pain and suffering will normally not be disturbed. Although there was evidence that Plaintiff suffered non-economic damages, there was also evidence that she could resume normal function within weeks after her injury. Nault v Webb, et al, Michigan Court of Appeals Unpublished Decision dated November 2, 2004, Docket No. 251225.

Recommendation – This is an unusual result which does illustrate that not every accident necessarily produces a compensable injury.

Facts – A falling tree limb killed Plaintiff’s decedent after she exited a truck to help its driver remove fallen tree branches from the road. The Estate sought no-fault PIP survivor’s loss benefits. The Trial Court granted Defendant’s Motion for Summary Disposition, finding that although the truck was not parked, the Estate failed to establish that the injuries arose out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle.

In upholding the Trial Court’s grant of Summary Disposition, the Michigan Court of Appeals held that incidental involvement of a motor vehicle does not give rise to coverage. An injury must be closely related to the transportational function of a motor vehicle. Here, there was no traffic accident. Decedent was outside of the vehicle when she was killed by the branch and as such, her death was unrelated to the use of the motor vehicle as a motor vehicle. Slater v State Farm Mutual Automobile Insurance Company, Michigan Court of Appeals Unpublished Decision dated October 26, 2004, Docket No. 248782.

Recommendation – When attempting to make a determination as to whether PIP benefits are payable for any given incident, one must always keep in mind that there must be an accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle. (MCL 500.3105). Where there is a "separate occurrence" not closely related to the transportational function of a motor vehicle, no benefit may be owing.

Facts – Plaintiff went to work at his office located in a building owned and managed by the Defendants. Although Plaintiff did not notice any ice or snow on the ground that morning, he was aware that it had rained or sleeted during the remainder of the day while he worked. When he left the building that evening, he believed that the concrete outside was dry. Plaintiff walked along the sidewalk to return to his car. Along the way, he slipped on black ice, asserting that the ice was nearly invisible and was only noticeable when he closely inspected the site of his fall.

In reversing the Trial Court’s grant of Defendants’ Motion for Summary Disposition, the Court of Appeals held that courts must examine whether a danger is open and obvious, and whether special aspects render an open and obvious condition unreasonably dangerous, from the perspective of a reasonably prudent person. Although Michigan courts have often determined that icy conditions on a winter day are open and obvious, the ice in those prior cases was always noticeable. By its very nature, black ice is not noticeable.

The Court of Appeals felt that whether the black ice may have been open and obvious as a matter of law, was a factual question reserved for the trier of fact. Kantner v Ann Arbor Tower Plaza Condominium Association, et al, Michigan Court of Appeals Unpublished Decision dated November 16, 2004, Docket No. 250202.

Recommendation – In his dissenting Opinion, Judge Hoekstra, observed that any reasonable prudent person living and working in Michigan during the winter months, understands that rain and sleet during the daylight hours can result in the formation of black ice, particularly as temperatures drop during the nighttime. Thus, Plaintiff had sufficient knowledge to foresee the possibility of ice forming and should have been on the lookout for it. Additionally, no covering of snow, nor any other circumstances prevented Plaintiff from discovering the icy situation. As we have previously advised, where possible, photographs, weather records and other materials which would document the condition which existed at the time of the accident, may be extremely valuable for use in a Motion for Summary Disposition under the "open and obvious" doctrine.