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 Unpublished Decisions (or those which have not been published as of the date of newsletter distribution) will be cited by Appellate Slip Opinion number.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.

To receive our newsletter, please call (989) 799-3033 or email sky@saginaw-law.com.

Facts – Plaintiff and Defendant were removing a section of chicken wire from a dog kennel. As Plaintiff stepped backward, she stepped on Defendant’s dog which yelped and bit her on the leg. An amended complaint was filed, alleging liability pursuant to the Michigan Dog-Bite Statute, or in the alternative, common law negligence. Before Trial, Defendants requested that the Trial Court instruct the jury that provocation could be either intentional or unintentional. The jury found in Defendants favor.

In upholding the lower Court’s instruction, the Michigan Court of Appeals noted that the term "provocation" is not defined in the Dog-Bite statute. The common definition of provocation does not take into account the intent of the actor; rather, the definition focuses on the nature of the act itself and the relationship between that act and an outcome. Thus, an unintentional act could constitute provocation within the plain meaning of the statute because some actions, regardless of intent, may be more than sufficient to relieve a dog owner of liability. The Court concluded that the intent of the victim of a dog bite is irrelevant as to whether provocation occurred. Brans v. Extrom, 266 Mich App 216 (2005).

Recommendation – As this decision illustrates, provocation may be attributable to many different factors. When defending a claim of this type, it may be advisable to retain the services of a veterinarian so as to establish the defense of provocation.

Facts – The Trial Court ruled that Defendants were entitled to review any medical charges and pay only those determined to be reasonable. It further ruled that even though a medical provider’s charge did not exceed the amount that providers customarily charged in cases not involving insurance, that fact alone did not establish that the charge was reasonable.

Plaintiffs had asserted it was unlawful for the Defendants to employ review companies to compare the insured’s providers fees to those of other providers in order to determine a reasonable charge. The Michigan Supreme Court disagreed. Advocacy Organization for Patients and Providers v. Auto Club Insurance Association, 472 Mich 91 (2005).

Recommendation – Although Plaintiffs asserted that it was unlawful for Defendant to employ review companies to compare provider fees in order to determine a reasonable charge (when Defendants were required by statute to compare healthcare provider fees for services with those provider fees for comparable services to an uninsured patient to determine a reasonable charge), the Supreme Court felt that such argument was without merit. As this holding indicates, where the reasonableness of an amount charged is in dispute, it becomes a question for the trier of fact. An appropriate expert should be retained for use at Case Evaluation and at Trial.

Facts – Plaintiff entered the single person restroom at a Wendy’s restaurant and noticed that the floor was "messy" with tissue paper and other objects. She did not notice that the floor was wet. After having used the toilet, she walked four steps toward the sink, slipped on the wet floor and fell backward, striking her head on the wall. Plaintiff was eight months pregnant at the time. Defendant’s manager had been notified of the condition approximately one half hour before Plaintiff’s fall.

Plaintiff argued that the condition of the floor had "special aspects" because the ladies restroom was the lone restroom available for use, thus placing her in an unavoidable predicament.

The Court of Appeals agreed, citing evidence that Defendant knew or should have known the condition of the restroom, and failed to respond to it within a reasonable time. The Court felt that this case was factually distinguishable from Sidorowicz v. Chicken Shack, Unpublished Michigan Court of Appeals Opinion, Docket Number 239627, issued January 17, 2003. The Court had affirmed the lower Court’s grant of summary disposition to the Defendant where the legally blind Plaintiff, who suffered from multiple sclerosis had slipped on a wet bathroom floor. In that case, Plaintiff had presented no evidence in regard to how long the unsafe condition had existed and failed to demonstrate that Defendant knew or should have known about the unsafe condition. Hamilton v. Wendetroit, LTD., Court of Appeals Unpublished Decision Dated May 3, 2005, Docket Number 251842.

Comment – This was a 2-1 decision. The dissent felt that the fact that the floor had been safely navigated at least once (and perhaps more) in the half hour before Plaintiff’s fall, established that a uniquely high likelihood of harm or severity of harm was not present. The majority opinion appears to be directly contrary to the Supreme Court’s prior holding in Lugo v. Ameritech Corp. Inc., 464 Mich 512 (2001). Motions for summary disposition should continue to be filed where the situation warrants. We suspect that the Supreme Court will further address the Michigan Court of Appeals continuing efforts to "water down" the open and obvious doctrine.

Facts – Plaintiff commenced a wrongful death action on October 4, 2002 alleging that Defendant was liable for the January 8, 1982 shooting death of Plaintiff’s decedent. Defendant first argued that the Trial Court erred in determining that Plaintiff’s action was not time barred by the statute of limitations.

The Fraudulent Concealment Statute (MCL 600.5855) provides that if a person who is or may be liable for any claim, fraudulently conceals the existence of the claim or the identity of any person who is liable for the claim, from the knowledge of the person entitled to sue on the claim, the action may be commenced at any time within two years after the person who is entitled to bring the action discovers, or should have discovered, the existence of the claim or the identity of the person who is liable for the claim, although the action would otherwise be barred by the period of limitations. Plaintiff argued (and the Trial Court agreed), that the statute was applicable and that the two year limitations period did not begin to run until November 19, 2001, which was the date that Defendant was convicted of Decedent’s murder.

The Court also addressed MCL 600.5852 which provides that if a person dies before the period of limitations has run or within thirty days after the period of limitations has run, an action which survives by law may be commenced by the personal representative of the deceased person at any time within two years after letters of authority are issued although the period of limitations has run. The Personal Representative satisfied the foregoing requirement. Smith v. Randolph, Michigan Court of Appeals Unpublished Decision Dated March 24, 2005, Docket Number 251066.

Recommendation – When presented with a factual scenario which appears to be barred by the general statute of limitations, one should carefully determine whether the statute may have been "tolled", or whether a saving statute (such as MCL 600.5852) applies.

Home] [Practice Areas] [Firm History] [Attorneys] [Service Area]

[Legal Updates] [Trial Results] [Presentations] [Support Staff] [Representative Clients]

[Search] [Office Location] [Legal Links]

Send mail to: jtc@saginaw-law.com with questions or comments about this web site.