Facts – Plaintiff was injured in a collision with Defendant while skiing at Boyne Mountain on December 30, 2002. The Plaintiff was the downhill skier and the Defendant was the uphill skier while the parties were skiing on the same run. Plaintiff heard someone yell: "Watch out" and she was struck from behind by Defendant and suffered injuries. Following discovery, Defendant moved for Summary Disposition arguing Plaintiff’s claims were barred by the SASA and the Trial Court agreed.

The Court of Appeals held that under the plain language of MCL 408.342(2), Plaintiff assumed the risk of being injured by a collision with another skier. However, the Court of Appeals noted that in cases where a Plaintiff can establish that a Defendant violated one of the specific duties imposed by SASA, Plaintiff could still recover damages to the extent that Defendant’s violations caused Plaintiff’s injuries. Therefore, the Court remanded the case for further proceedings to determine whether such violation occurred. Rusnak v Walker, Michigan Court of Appeals Decision for Publication dated December 19, 2006, Docket No. 264671.

Recommendation – When a claim falls within the Ski Area Safety Act, consideration must be given as to whether the Defendant’s actions violated provisions of SASA. A cause of action is not automatically barred by the SASA.

Facts – At the time of this incident, Plaintiff was making a pick up from Defendant store. When she parked her vehicle, a large overhead rolling door for vehicles was open. As such, Plaintiff entered by foot through this opening although a pedestrian entrance directly adjacent to the door was available. After making her purchases, she turned to walk toward the open overhead rolling door which was not in motion. However, as she attempted to walk through the opening, the door was traveling down and struck her on the head. Defendant employee, who was assisting her, testified he used the pedestrian door due to the fact he heard the overhead door coming down. At that time, he was also holding the door for Plaintiff.

Plaintiff’s First Amended Complaint, was labeled as a premises liability claim. Following discovery, Defendant filed a Motion for Summary Disposition asserting that Plaintiff’s claim was based solely on premises liability and that the overhead door was open and obvious. The Trial Court subsequently granted leave to file an Amended Complaint in which Plaintiff added a claim of ordinary negligence. Defendant filed a Motion for Summary Disposition with respect to Plaintiff’s ordinary negligence claim arguing that the open and obvious defense remained applicable because the condition of the land could not be eliminated from consideration and, therefore, Plaintiff’s ordinary negligence claim sounded in premises liability. Plaintiff argued that because Defendant failed to keep the door raised until clear of pedestrian traffic, ordinary negligence was applicable. Defendant argued that Plaintiff’s ordinary negligence claim failed because Defendant’s conduct was not independent of the condition of the premises. Further, the doorway was not unavoidable given the fact the pedestrian door was directly adjacent. The Trial Court entered an Order Granting Defendant’s Motion for Summary Disposition as to all of Plaintiff’s claims.

On Appeal, the Court of Appeals noted that it is well established that the gravamen of an action is determined by reading the claim as a whole. The Court further noted that the open and obvious doctrine does not apply to actions for ordinary negligence. Analyzing the specific acts as they related to this case, the Court noted the door would not have come down unless and until a person pressed a button activating the door. Therefore, it was Defendant’s conduct which was the basis for the alleged liability. Although Plaintiff’s injury occurred on Defendant’s premises, her claim sounded in ordinary negligence. Therefore, the Court reversed and remanded the matter to the Trial Court for further proceedings. Nicaj v End-Lind Heat Treat, Inc., Michigan Court of Appeals Unpublished Decision dated December 21, 2006, Docket No. 270428.

Recommendation – In determining whether a Plaintiff’s claim is barred by the open and obvious doctrine, first, a determination must be made whether the claim sounds in ordinary negligence or premises liability.

Facts – On July 16, 2004, Plaintiff was a passenger in a stopped vehicle when a car backed up causing a collision. The accident report described minimal damage to both vehicles and estimated the speed at less than five miles per hour. At the time of the accident, Plaintiff was a healthy 17-year-old girl, several months into an uncomplicated pregnancy. Following the accident, Plaintiff complained of burning and cramping and was subsequently hospitalized. She later gave birth to twins, several weeks prematurely. Plaintiff filed suit asserting the accident caused her to suffer various soft tissue injuries and induced premature delivery. Following discovery, Defendant moved for Summary Disposition arguing Plaintiff exhibited no objective signs of injuries. The Trial Court noted a distinction between an injury that is medically measurable and an injury that is merely medically identifiable by a physician and has no physical basis. The Trial Court noted the accident had affected Plaintiff’s general ability to lead her normal life but that her claim did not satisfy the objective manifestation requirement because it merely arose to the level of being identifiable, not medically measurable. The Court subsequently granted Defendant’s Motion.

On Appeal, the Court noted a claim for non-economic loss under the No-Fault Act is principally governed by the Michigan Supreme Court in Kreiner v Fischer. As such, if the Trial Court can decide the issue as a matter of law, it must determine if Plaintiff’s injury impaired and "important body function." It must then determine if the impairment is objectively manifested. Lastly, the Trial Court must determine if the impairment affects the Plaintiff’s general ability to lead his or her normal life. In determining whether the course of Plaintiff’s life has been affected, the Trial Court must engage in an objective analysis regarding whether any differences between Plaintiff’s pre- and post-accident life had actually affected Plaintiff’s general ability to conduct the course of their life.

In this case, Plaintiff denied any neck or back pain post-accident. An MRI obtained September 2004 revealed no measurable abnormalities. However, Plaintiff’s medical records reflected a diagnosis of lumbar radiculopathy along with cervical, dorsal and trapezius myositis. Plaintiff underwent physical therapy in August 2004 for dorsal myositis. November 2004, she was diagnosed with cervical myofascial pain syndrome secondary to cervical strain injury. Plaintiff was given a disability certificate which declared her disabled from housework, caring for her children and caring for her own personal needs dating back to the accident. She was discharged from physical therapy in December 2004 for non-compliance.

The Court of Appeals noted that movements of one’s back and neck are important body functions. The Court found the Trial Court’s conclusion that because Plaintiff’s soft tissue injuries were not subject to precise medical measurement, they could not satisfy the threshold requirement of an objectively manifested injury, in error. The Court of Appeals noted that if it were not for the fact that the Plaintiff’s general ability to lead her normal life was unaffected, the case would have been remanded for further findings on the objective nature of Plaintiff’s injuries. The Court of Appeals found that the Trial Court’s conclusion that Plaintiff’s general ability to lead her normal life was impaired was incorrect. Plaintiff failed to show that the course or trajectory of her normal life was affected due to her relatively brief six-month recuperation. Although different reasoning was utilized, the Trial Court’s decision resulted in a correct result. Therefore, the decision of the Trial Court was affirmed. Netter v Bowman, 272 Mich App 289 (2006).

Recommendation – When determining whether a Plaintiff has suffered a serious impairment of body function, Plaintiff’s injury must be capable of objective verification by a qualified medical person either because the injury is visually apparent or because it is capable of detection through the use of medical testing.

Facts – On August 18, 1994, Plaintiff and Defendant entered into a lease agreement. Subsequently, Plaintiff initiated a Breach of Lease action against Defendant on May 14, 2003. Shortly before Trial, the parties’ attorneys engaged in settlement negotiations. On March 18, 2005, Plaintiff’s attorney sent an e-mail to Defendant’s attorney stating: "I confirmed with Mr. Kloian that he will accept the payment of $48,000 in exchange for a dismissal with prejudice of all claims and a release as [sic; of] all possible claims". In a response Defendant’s attorney wrote: "Domino’s accepts your settlement offer… ".

Documents reflecting the agreement were prepared by Defendant’s attorney and sent to Plaintiff. Plaintiff’s attorney sent an e-mail stating: "I reviewed your documents and find them to be in order. However Mr. Kloian would like the protection of a mutual release." Approximately two months later, the Defendant moved to enforce the settlement agreement which was reached on May 18, 2005. The Trial Court found the parties had entered into a binding settlement agreement and issued an Order enforcing same, dismissing Plaintiff’s claims with prejudice.

In affirming the Trial Court, the Court of Appeals looked to both the Uniform Electronic Transactions Act and the Michigan Court Rules. According to the UETA, "If the law requires a signature, an electronic signature satisfies the law." MCL 450.837. Pursuant to MCL 450.832(h), an electronic signature is "an electronic sound, symbol or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record." The Court noted, however, that MCR 2.507(H) does not require a signature. It only requires a "writing, subscribed" to by the party against whom enforcement is sought. The Court noted in the original agreement, the e-mail containing the terms of the settlement offer was "subscribed" by Plaintiff’s attorney since he typed or appended his name at the end of the e-mail message. Likewise, Defendant’s e-mail containing acceptance of the offer was subscribed, because it contained the Defendant attorney’s name at the end of the e-mail message. The subsequent attempt to modify the settlement agreement was not subscribed by the party to whom the agreement was offered. In that e-mail, the Plaintiff’s attorney’s name was at the top in a heading of the e-mail and not at the bottom as required. Therefore, the original settlement agreement and not the attempted modified settlement agreement complied with MCR 2.507(H) and was enforceable. Kloian v Domino’s Pizza, LLC, Michigan Court of Appeals Decision for Publication dated December 28, 2006, Docket No. 263882.

Recommendation – An offer and acceptance of a settlement agreement is enforceable through e-mail if both the offer and acceptance comply with MCR 2.507(H). Specifically, the offer and the acceptance must be subscribed by parties or counsel at the bottom of the e-mail.

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