Facts – Plaintiff contended that Defendant’s careless cleaning of a kitchen exhaust system permitted a fire to spread and cause the loss. Defendant argued that the Trial Court erred by not dismissing Plaintiff’s Complaint based on spoliation of evidence. Specifically, Defendant argued that Plaintiff did not timely notify Defendant of Plaintiff’s Subrogation claim, depriving Defendant of an opportunity to inspect the fire scene before it was disturbed. Defendant also argued other evidence was lost or destroyed, depriving it of a fair Trial.

The Court held that to dismiss a case because evidence has been lost is a drastic measure that should be imposed only rarely, and only after the Trial Court determines that other lesser sanctions cannot remedy the unfair advantage arising from the failure to preserve evidence. Whether sanctions are necessary to ensure a fair playing field is a function of how important the lost evidence was to the party’s claims or defenses.

In this case, the Trial Court determined that there were several compelling reasons not to grant the extraordinary relief of dismissal. A serious question existed as to whether spoliation of material evidence occurred, and if it did occur, the degree of spoliation. Several pieces of critical evidence had been preserved. It was felt that a Jury could determine what weight, if any, should be given to the assertion that there was spoliation, and whether the Defendant was treated unfairly. The Trial Court did not abuse its discretion by denying Defendant’s Motion to Dismiss. Travelers Property Casualty, Subrogee of Sinbad’s, Inc., v Sani Vac Service, Inc., et al, Michigan Court of Appeals Unpublished Decision dated June 24, 2004, Docket No. 242966.

Recommendation – When investigating an accident or fire loss scene a concerted effort should be made to preserve critical evidence. The failure to do so could result in fairly severe sanctions limiting one’s ability to recover the full nature and extent of damages claimed owing.

Facts – Plaintiff lost control of his pickup truck after he left the roadway and attempted to bring his vehicle back onto the paved surface. He collided with a tree on the side of the roadway resulting in injuries to himself and a passenger. There was a dispute over whether these individuals were wearing their safety belts during the accident.

A lawsuit was filed against the road commission alleging that the accident was caused by a defect in the road. Defendant sought to offer testimony at Trial of a bio-mechanical expert that the vehicle occupants were not wearing safety belts at the time of the accident and that they would have escaped with minor superficial injuries had they been wearing seat belts.

In this particular case, if the Safety Belt Statute’s cap were to apply, then Plaintiffs’ negligence in failing to wear a seat belt could reduce their damages by no more than 5%. Defendant sought to have Plaintiffs’ damages reduced by more than that amount under common law comparative negligence.

The Michigan Supreme Court found that the Safety Belt Statute’s cap on the reduction of damages is applicable only to tort action brought under the No-Fault Act. In this case, Plaintiffs did not allege that their damages arose out of the ownership, maintenance or operation of a motor vehicle. Rather, they alleged that the accident and their damages were caused by Defendant’s failure to keep the roadway in reasonable repair. Mann, et al v St. Clair County Road Commission, 470 Mich 347 (2004).

Recommendation – When investigating an automobile accident-related claim, one should make a specific determination as to whether the claimant is seeking damages for the "operation of a motor vehicle" rather than an act which arguable may not fall within the purview of the Michigan No-Fault Statutes [such as in this case, failure to maintain a highway in a condition reasonably safe and fit for travel, or as in Klinke v Mitsubishi Motors Corp., 219 Mich App 500 (1996), damages allegedly caused by a product defect.]

Facts – Plaintiff gave a ride to a stranded motorist who, without warning, attacked with a knife and permanently injured Plaintiff before taking her car. She sought personal injury benefits from Defendant No-Fault insurer who denied payment on the ground that Plaintiff’s injuries did not arise out of her ownership, operation, maintenance or use of a motor vehicle as a motor vehicle [MCL 500.3105(1)].

The Court of Appeals held that in order to be compensable under the No-Fault Act injuries must be caused by the inherent nature of the use of a motor vehicle. Injuries inflicted by a carjacker are personal and the presence of the motor vehicle only incidental. Therefore, the injuries are not compensable because they are not sufficiently related to the use of the motor vehicle. Parcell v Auto-Owners Insurance Company, Michigan Court of Appeals Unpublished Decision dated June 10, 2004, Docket No. 246134.

Recommendation – This was a particularly tragic case which occurred in Saginaw County. However, the Courts will be reluctant to award benefits where an individual’s injury is not closely associated with the transportational function of a vehicle.

Facts – After leaving a bar, Plaintiff, who was visibly intoxicated and had a blood alcohol content of 0.25% sustained injuries when he slipped and fell on ice and snow that had accumulated in Defendant’s parking lot during a blizzard. Plaintiff filed a premises liability cause of action against Defendant, claiming that the ice and snow had not been removed within a reasonable time after it accumulated.

The Michigan Supreme Court agreed that Plaintiff’s action was based on the claim that Defendant did not sufficiently protect him as an invitee from a dangerous condition on the premises. Accordingly, this was not an action arising from the unlawful selling, giving or furnishing of alcohol contrary to the Michigan Dram Shop Statutes.

In analyzing Plaintiff’s claim from that perspective, the Court also determined that the visibly intoxicated person is held to the same standard of reasonable conduct as a sober person. Although Defendant served Plaintiff alcohol and was apparently aware that Plaintiff was intoxicated, Defendant did not owe Plaintiff any heightened duty of care. Rather, the fact finder must decide only whether a reasonably prudent person would have slipped and fallen on the ice and snow in Defendant’s parking lot.

In reaching the above conclusion, the majority also found that Michigan Standard Jury Instructions 19.03 and 19.05 constitute inaccurate statements of law given the Court’s prior holding in Lugo v Ameritech Corp., Inc., 464 Mich 512, 520 (2001). Those particular instructions lack any reference to "special aspects" which under Lugo make a condition unreasonably dangerous. Mann v Shusteric Enterprises, Inc., et al, 470 Mich 320 (2004).

Recommendation – This opinion is significant from the standpoint that the precise application and scope of the majority’s "special aspects" analysis under Lugo had been unclear. The majority opinion in this case now ends that debate. As such, when investigating or analyzing a premises liability claim, one should attempt to determine whether "special aspects" as defined by Lugo existed at the time of the occurrence. If not, the claim should be denied.

Facts – The issue in this case was whether Plaintiff’s Complaint was barred by the Statute of Limitations. Whether the cause of action survived was wholly dependent on the date that Letters of Authority were "issued". As indicated, Letters of Authority are issued on the date that they are signed by the Probate Judge. This promotes a speedy and efficient system for liquidating a Decedent’s Estate. Lentini v Urbancic, et al, Michigan Court of Appeals Published Decision dated June 22, 2004, Docket No. 246323.

Recommendation – As always, one of the first determinations to be made on any new lawsuit, is whether the claim is barred by virtue of the Statute of Limitations. If necessary, a review of the original Court file can be made in order to verify important filing dates.