Facts – Plaintiff was injured when a small step ladder slipped out from under her. At trial, she claimed invitee status because she was an independent contractor who provided babysitting services to other employees. Based on the evidence presented, the trial court found that Defendant did not receive any benefit from Plaintiff's services and was thus a licensee. Because she was aware of the dangerous condition and the risk presented, Defendant did not have a duty to protect her against it.

On Appeal, Plaintiff "shifted ground" and argued that she was an invitee because she was a social guest of her boyfriend (who was also Defendant's tenant), and was injured in an area under Defendant's control. The Michigan Court of Appeals held that when a cause of action is presented for Appellate review, a Party is bound to the theory on which the case was prosecuted or defended in the court below. In addition, Plaintiff failed to address the basis of the trial court's ruling. Thus she failed to establish any right to relief (Hochschild v W.G. Wade Shows, Inc., Michigan Court of Appeals Unpublished Decision dated April 9, 2002, Docket Number 228450).

Recommendation – If faced with an appeal after the successful defense of an underlying claim, one must keep the appellant "honest" by objecting to any arguments which could have been asserted in the lower court but were not. Appellate Courts may address an unpreserved issue if it is one of law and if all facts necessary for its resolution were presented.

Facts – The trial court granted summary disposition based upon an "open and obvious" defense. In response, Plaintiff argued that such doctrine should not apply because of the Plaintiff's age (he was two years old at the time). On appeal, Plaintiff merely asserted that Defendant's argument was "absurd" and "defied logic". Plaintiff cited no case law to support that contention.

In dismissing the appeal, the Court reiterated the fact that it is not enough for an appellant to simply announce a position or assert an error and then leave it up to the Court to discover and rationalize the basis for such claims. In other words, the appellant himself must first "adequately prime the pump." Only then does the "appellate well begin to flow" (Ashford v Lloyd, Michigan Court of Appeals Unpublished Decision dated April 9, 2002, Docket Number 222119).

Recommendation – In this particular case, Plaintiff merely asserted that the defect was unreasonably dangerous. Counsel failed to set forth a description of any "special aspects" which made the risk of harm unreasonable (as required by Lugo v Ameritech Corp., Inc., 464 Mich 512 [2001]). When faced with arguably defective pleadings, Defense counsel should file a Motion for Summary Disposition. At the very least, the court should require Plaintiff to plead specific facts to support the claim asserted.

DAMAGES

Facts – Plaintiff's Complaint was filed, basically claiming wrongful pregnancy. One element of damages included the costs of child rearing. The Court of Appeals noted that allowing the costs of raising a child as an element of damages, logically requires the conclusion that the non-existence of that child would be a benefit. Thus, a claim for these types of damages would be inappropriate under any legal theory (Reyes v Kay-Jan, Inc. et al., Michigan Court of Appeals Unpublished Decision dated April 5, 2002, Docket Number 226079).

Recommendation – Often times, Plaintiff's counsel will try to be "creative" with respect to damages. When appropriate, questionable claims should be challenged via Motion for Summary Disposition in order to preserve the issue for Appeal.

DISCOVERY

Facts – Defendant moved to dismiss the action asserting that Plaintiff had failed to answer Interrogatories and had failed to appear at three scheduled Depositions. The trial court had instructed Plaintiff to be deposed on a certain date. Plaintiff did not appear for his Deposition. The court granted Defendant's Motion to Dismiss.

The Michigan Court of Appeals indicated that although it is within the trial court's discretion to sanction a party for violating Discovery rules, severe sanctions are generally appropriate only where a party flagrantly and wantonly refuses to facilitate Discovery. The Court looked at various factors which should be considered in determining an appropriate sanction, including willfulness, the history of refusing to comply with requests, prejudice to the other party, degree of compliance with other Discovery Orders, etc. In this particular case, the Appellate Court found that dismissal was proper (Boatwright v City of Detroit, Michigan Court of Appeals Unpublished Decision dated April 16, 2002, Docket Number 229573).

Recommendation – If Plaintiff and/or Plaintiff's counsel does not cooperate with Defense Discovery requests, a Motion to Compel or in the Alternative to Dismiss Plaintiff's Claim should be filed pursuant to MCR 2.313.

As a reminder, please note that the Michigan Standard Jury Instruction regarding use of Statutory Mortality Tables in a personal injury case (SJI2d 53.01) was previously deleted. In the absence of a stipulation as to the Mortality Table to be used, actual testimony regarding life expectancy may be necessary. Life expectancy information for Michigan residents is available from the Michigan Department of Community Health, Division for Vital Records and Health Statistics. The Tables may be accessed electronically at www.mdch.state.mi.us/.

Life expectancy tables for the United States and individual states are available from the United States Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Health Statistics. Those tables may be accessed electronically at www.cdc.gov/nchs/ . The United States Department of Health and Human Services also publishes US Decennial Life Tables containing information for the various states. Life expectancy tables can also be found in the Statistical Abstract of the United States published by the United States Department of Commerce.

Facts – Plaintiff had a history of mental illness and alcoholism. On the date in question, he was being transported by ambulance to a hospital for a mental health evaluation. During the ride to the hospital, Plaintiff sustained serious closed head and other injuries when he stepped out of the back door of an ambulance. There had been testimony that Plaintiff was threatening suicide earlier that day. Plaintiff had been drinking and had not been taking his medications.

Plaintiff sued Defendant seeking first-party No-Fault benefits. Defendant had denied the claim pursuant to §3105 of the No-Fault Act which indicates that bodily injury is accidental as to a person claiming personal protection insurance benefits unless suffered intentionally by the injured person or caused intentionally by the claimant.

In reversing the denial of Defendant's Motion for Summary Disposition, the Court of Appeals held that suicidal intent does not negate the intent to injure even where there is proof of mental illness. In this particular case, Plaintiff was coherent at all times. There was nothing in the facts which vitiated the conclusion that Plaintiff acted intentionally as that term has been interpreted in the context of insurance policy exclusionary clauses (Crouch v Citizens Insurance Company of America, Michigan Court of Appeals Unpublished Decision dated March 26, 2002, Docket Number 227418).

Recommendation – When investigating a claim for personal injury protection benefits which may involve an intentional act, one should obtain as much information as possible with respect to the claimants background, events leading up to the loss in question and prior medical treatment. Do not assume that an individual's impaired judgment will allow for a valid claim for benefits.

Facts – Plaintiff sustained bilateral carpal tunnel syndrome and cervical radiculopathy after an automobile accident with Defendant. Defendant moved for Summary Disposition based on lack of serious impairment of body function. The trial court granted the motion, finding that Plaintiff had failed to show that her injuries affected her general ability to lead a normal life.

In upholding the trial court's decision, the Michigan Court of Appeals noted that Plaintiff was able to return to work performing her same job duties. Plaintiff had testified that her daughter did household chores such as laundry, cooking and cleaning. There was no evidence that the accident changed Plaintiff's recreational life. The trial court properly granted Summary Disposition where the record did not show a significant alteration in Plaintiff's life (Hughey v Amaral, Michigan Court of Appeals Unpublished Decision dated April 12, 2002, Docket Number 228650).

Recommendation – Where possible, a Motion for Summary Disposition based upon lack of serious impairment of body function should be filed. A significant number of soft tissue cases have been dismissed given stringent standards which are being imposed by the Appellate Courts.

Facts – Plaintiff filed a declaratory judgment action against its employee, claiming that such individual operated a company van without consent. The Defendant had returned to his place of employment in the company vehicle and then drove it home when he left work for the weekend. That night, the employee got drunk and was involved in an accident while driving the van.

There was no question that the employee had permission to use the van while in the course of business on the day of the accident. The trial court found that when Defendant completed his business errands and returned to the employers premises, the previously granted consent ended. In reversing the trial court's decision, the Court of Appeals found that there was no evidence that the employee was aware that company vehicles were to be used strictly for business. Defendant testified that no one had ever told him that he could not use the van for personal purposes, and that he had done so in the past.

The Court found that while the employee might have violated the terms of the original consent to drive the vehicle, same was not sufficient to overcome the presumption that a motor vehicle taken with permission of the owner was thereafter being driven with the owner's express or implied consent or knowledge (citing Roberts v Posey, 386 Mich 656 [1972]). The Court further indicated that this case does not involve circumstances of a thief or borrower who never had consent to drive the vehicle in the first instance (Bundy Corporation v Wenzel, et al., Michigan Court of Appeals Unpublished Decision dated March 26, 2002, Docket Number 223922).

Recommendation – When determining whether permission and consent exists for purposes of applying the owner liability statute, most courts will take the position that when an owner willingly surrenders control of his vehicle to others, he "consents" to assumption of the risk attendant to his surrender of control regardless of admonitions which would purport to delimit his consent. As such, testimony must be developed which would strongly show that permission/consent was either revoked or had not been given.

Facts – It would appear as if prior to trial, Defendant admitted liability. Medical records as well as medical Deposition testimony referred to the Defendant as a "drunk driver." The trial court excluded such reference. In upholding that decision, the Michigan Court of Appeals indicated that to be relevant, evidence must bear on a fact of consequence to the case. The only questions submitted to the jury were whether Plaintiff suffered a serious impairment of body function and if so, what were her damages. Plaintiff presented no argument as to how Defendants characterization as a "drunk driver" was probative of whether Plaintiff suffered a serious impairment of body function. Rather, whether Defendant was drunk related solely to liability issues.

Plaintiff had also argued that this testimony was relevant to damages. The Court found that this argument was moot inasmuch as the jury's verdict of No Cause For Action was not against the great weight of the evidence. Therefore, there was no damage issue to address (Payne v Gill, Michigan Court of Appeals Unpublished Decision dated April 5, 2002, Docket Number 224873).

Recommendation – This particular decision left open the issue as to whether the fact that Plaintiff was hit by a drunk driver, might somehow be germane to issues of Plaintiff's damages (presumably mental anguish, emotional distress, etc.). Unless there was some conduct by the intoxicated Defendant after the collision occurred which would have caused Plaintiff additional worry, concern and "upset", evidence of drunkenness should be excluded. Ultimately however, such a decision is entirely within the discretion of the trial judge.