On June 7, 2006, the Michigan Supreme Court reversed the judgment of the Court of Appeals in the case of Mallison v Scribner (269 Mich App 1 [2005]). In that case, the Michigan Court of Appeals found that when a Plaintiff chooses to drink and become intoxicated, and chooses to ride with an intoxicated driver, the Plaintiff is 50% or more the cause of any accident that occurs, and the Defendant is entitled to the absolute defense provided by MCL 600.2955a(1). The evidence had shown that Plaintiff voluntarily became intoxicated, had a blood alcohol level of 0.229, voluntarily chose to ride with the Defendant when she knew that she had been drinking, and voluntarily chose to participate in the "four-wheeling" that resulted in the accident.

In reversing that decision, the Michigan Supreme Court held that both the Michigan Court of Appeals and the Trial Court erred in finding, as a matter of law, that as a result of Plaintiff’s impaired ability to function due to the influence of intoxicating liquor, she was 50% or more the cause of the accident that resulted in her injuries.

This ruling is somewhat surprising considering the Court’s current makeup. Nonetheless, the issue of whether any particular Plaintiff was 50% or more the cause of the accident which resulted in his/her injuries, remains a question of fact.

Facts – Plaintiff brought a complaint against Defendant Hospital, alleging assault, battery, and intentional infliction of emotional distress. The Trial Court denied summary disposition on those counts, finding that there was a question of fact with regard to whether the employee’s agency relationship with the hospital, aided the employee in committing the tortuous acts alleged against the Plaintiff. The Court of Appeals reversed and remanded the case for entry of a judgment of dismissal, holding that the Trial Court erred in denying Defendant’s motion for summary disposition.

In upholding the Court of Appeals, the Michigan Supreme Court stated that under the doctrine of respondeat superior, the general rule is that an employer is not liable for the torts intentionally or recklessly committed by an employee when those torts are beyond the scope of the employer’s business. The question in this case was whether Michigan recognizes a certain exception to employer non-liability which allows a cause of action where the employee purported to act or speak on behalf of the principal and there was reliance upon apparent authority, or the employee was aided in accomplishing the tort by the existence of the agency relationship.

In a case of first impression, the Supreme Court declined to recognize the foregoing exception because it is not tied to the scope of employment, but rather, to the existence of the employment relation itself. It felt that the exception strays too far from the rule of respondeat superior employer non-liability. Further, the Court felt that if it were to adopt this exception, it would potentially be subjecting employers to strict liability. Zsigo v Hurley Medical Center, 475 Mich 215 (2006).

Recommendation – The foregoing decision appears to have been intended to eliminate the argument that an agent can subject his/her master to liability based upon the mere fact that an agency relationship exists. As such, traditional investigative techniques should continue to be utilized. Areas of inquiry regarding master/servant liability would include:

        (1) The master intended the conduct or the consequences;

        (2) The master was negligent or reckless;

        (3) The conduct violated a non-delegable duty of the master.

Facts – Plaintiffs appealed as of right, the Trial Court’s order granting Defendant’s motion for summary disposition. Plaintiffs alleged that Defendant negligently failed to obtain adequate or appropriate insurance coverage, which resulted in Plaintiffs’ insurance coverage falling short when a fire almost completely destroyed their hotel. The Trial Court ruled that Plaintiffs failed to produce evidence demonstrating the applicability of any exception to the general rule that insurance agents do not owe an affirmative duty to advise or counsel an insured about the adequacy or availability of coverage.

In affirming the lower court’s ruling, the Michigan Court of Appeals held that there are four exceptions to the general rule as follows:

        (1) The agent misrepresents the nature or extent of the coverage

             offered or provided;

        (2) An ambiguous request is made that requires clarification;

        (3) An inquiry is made that may require advice and the agent,

             although he need not, gives advice that is inaccurate; or

        (4) The agent assumes an additional duty by either express

             agreement with or promise to the insured.

Pressey Enterprises v Barnett-France Insurance Agency, Michigan Court of Appeals Unpublished Decision Dated June 8, 2006, Docket Number 258646.

Recommendation – The foregoing exceptions must be analyzed in light of the existing facts. A thorough investigation of all conversations and requests for specific coverages must be made.

Facts – Plaintiff was a passenger in a vehicle driven by her husband, which collided with a second vehicle as it was attempting to make a left-hand turn. Plaintiff filed a negligence action, alleging to have suffered a serious impairment of body function and permanent serious disfigurement.

In reversing the Trial Court’s grant of summary disposition with respect to the permanent serious disfigurement claim, the Michigan Court of Appeals held that whether a scar is serious, is a question to be answered by resorting to common knowledge and experience. A hardly discernible scar does not meet the statutory threshold. A Court, not a jury, determines whether a serious disfigurement exists unless there is an outcome-determinative factual dispute concerning the nature and extent of the person’s injuries. The nature of the injury, in the context of a claim of permanent serious disfigurement, relates to the requirement that it be serious and permanent. Taking into consideration the scar’s physical characteristics, along with common knowledge and experience, and viewing all of the documentary evidence in a light most favorable to Plaintiff, the Court held that reasonable minds could differ regarding whether this scar was serious. Therefore, a factual dispute existed. Lester v Castle, Michigan Court of Appeals Unpublished Decision Dated June 15, 2006, Docket Number 267640.

Recommendation – In this particular case, the Court found that there were material issues of fact which existed as to permanency. During the initial phase of investigation, it may be advisable to retain the services of a plastic surgeon to review photographs and medical records regarding the claimed permanent serious disfigurement. If the scar is subject to revision, it may not be a permanent, serious disfigurement.

Facts – Plaintiff’s decedent fell on a public sidewalk, adjacent to Defendant’s place of business. The Trial Court determined that the land owner took no affirmative action to alter the natural accumulation of ice and snow, thereby increasing the hazard of travel to the public. The Trial Court also determined that the land owner took no affirmative action to alter the underlying condition of the sidewalk itself, which then caused an artificial or unnatural accumulation of ice or snow. A premises owner must have both possession and control over the place where the hazard originated. Plaintiff offered no proof in that regard.

Plaintiff also argued that a City of Lansing ordinance imposing a duty upon a land owner to clear an abutting public sidewalk of snow and ice, created a public duty. The Court of Appeals disagreed, indicating that any such public duty does not create a private right of action. Maclachlan v Glidden Paint Co, Michigan Court of Appeals Unpublished Decision Dated June 13, 2006, Docket Number 266604.

Recommendation – When investigating a claim of this type, one must determine the precise area where the allegedly hazardous condition was located.  If it was located on a public sidewalk or other public area, there may be no cause for action unless an adjacent landowner "increased the hazard".

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