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   Copies of all Decisions summarized within this newsletter are available for your review upon request. Questions and comments are welcomed.

APPEALS

Plaintiff's failure to present legal authority in support of their arguments is considered an abandonment of issues on appeal.

Facts – This particular case rose by virtue of a claim for damages which involved an easement across the Plaintiff's property to an adjacent rear parcel owned by Defendant. Although Plaintiffs presented numerous arguments in support of their claim that Summary Disposition should not have been granted, the Michigan Court of Appeals found that failure to present legal authority in support of said arguments will be treated as an abandonment of the issues on appeal. A party may not leave the Appellate Court to search for authority to sustain a party's position (Sochocki v Transamerica Title Insurance Company, et. al., Michigan Court of Appeals (Unpublished) decided August 14, 2001, Docket #220043).

Recommendation – As obvious as it may seem, it is incumbent upon Plaintiff's counsel to present legal evidence in support of his or her position both in the lower and Appellate Courts. Failure to do so should result in dismissal. Appellate defense counsel should specifically review Plaintiff's position on every issue in order to determine whether there has been a failure to present adequate authority.

Facts – Plaintiff dealership loaned Defendant a vehicle while hers was undergoing repair. The parties signed a "courtesy car agreement" which included a provision that the renter would agree to assume all responsibility for damages while the vehicle was in her possession. While driving the rented vehicle, Defendant was involved in an accident. The dealership absorbed its deductible. Universal Underwriters paid the remainder of the collision loss. Recovery was sought from Defendant.

In finding in favor of Universal Underwriters, the Supreme Court held that §3135 of the Michigan No-Fault Act does not reflect an intent to abolish contractual liability for collision damages (same being an optional form of insurance not required by the No-Fault Act).

This decision distinguished the prior Supreme Court case of Universal Underwriter's Insurance Company v Vallejo, (436 Mich 873 [1989]), where it was held that the Defendant renter was entitled to summary disposition on the insurer's claim for collision damages to a rented vehicle. The Court stated that the insurer in Vallejo was relying on a common-law bailment theory. That decision prevents a party from converting a possible Tort claim into a "contract" claim by simply alleging bailment and thereby subverting Subsection 3135(2). Those concerns do not arise where parties have expressly agreed in writing to allocate their respective duties (Universal Underwriters v Kneeland, 464 Mich 491, [2001]).

Recommendation – The foregoing situation arose by virtue of Defendant's personal contractual agreement with the dealership at issue. It is recommended that where such a claim is presented, the complete policy (including endorsements in effect on the date of incident at issue) be reviewed so as to determine whether an exclusion exists as to voluntary assumption of payment by the insured. In other words, most policies will provide that an insurer cannot be bound by an insured without express approval and consent.

Facts – Plaintiff suffered an acromioclavicular separation as well as mild tendonitis. She initially underwent physical therapy. That treatment ceased and she began seeing an orthopedic surgeon. At the time of Deposition, Plaintiff was taking prescription pain medication on a daily basis.

The Court held that even assuming that Plaintiff's injury was objectively manifested, she had not suffered a serious impairment of body function because her general ability to lead a normal life was not altered by the injury. During her Deposition, Plaintiff admitted that she was able to perform all the same activities that she did before the accident. She had been able to work 40 hours per week and was able to perform household tasks. Plaintiff did not demonstrate that any aspect of her day-to-day activities had been curtailed. Furthermore, it appeared from the record that Plaintiff's injury was minor. She did not have to undergo a significant amount of medical treatment and there was no indication that her prognosis for recovery was anything but favorable (Plaintiff had argued that her inability to knit and having to type one handed at times was evidence of a serious impairment) (Miller v Purcell, 246 Mich App 244 [2001]).

Recommendations – Once in a position to do so, Defense counsel should obtain the Deposition of Plaintiff with a view toward determining whether an objectively manifested impairment of an important body function which affects the person's general ability to lead his or her normal life exits (MCLS 500.3135[7]). If not, the appropriate motion should be filed.

Facts – In these consolidated premises liability cases, Plaintiffs sought to recover for injuries they suffered when fellow concert goers at the Pine Knob Music Theatre began pulling up and throwing pieces of sod. Pine Knob was aware of this practice and had asked various bands to stop performing in the event it occurred. Multiple acts of negligence were alleged. Pine Knob moved for Summary Disposition arguing that it did not have a duty to protect its patrons from criminal acts of third parties.

The Court held that a property owner's duty to respond is limited to reasonably expediting the involvement of the police. There is no duty to otherwise anticipate and prevent the criminal acts of third parties. Property owners are not required to provide security personnel or otherwise resort to self-help in order to deter or quell such occurrences.

The dissenting Opinion found that the majority had created an unprecedented formulation of the duty a property owner has to protect its invitees from criminal acts of third parties. It was felt that the majority conclusion ignored an entire category of criminal acts arising solely because of the character of a property owner's business and the invitees purpose on the premises (MacDonald v P.K.T, Inc., 464 Mich 322 [2001]).

Recommendations – This decision appears to suggest that similarly occurring prior incidents are irrelevant. Because Pine Knob already had police present at the concert, it had fully discharged its duty to respond. Given the conservative nature of Appellate Court decisions in the area of premises liability, it is strongly suggested that all potential defenses be vigorously pursued.

Facts – This action arose from a fall in Defendant's parking lot. Plaintiff apparently stepped into a pothole. She testified at Deposition that she was not watching the ground where she was walking. Plaintiff also testified that nothing would have prevented her from seeing the pothole if she had chosen to gaze downward.

The Court concluded that with regard to claims of open and obvious dangers, the critical question is whether there is evidence which creates a genuine issue of material fact that "special aspects" exist which would differentiate the risk from the typical open and obvious condition (so as to create an unreasonable risk of harm). Generally, a premises owner is not required to protect an invitee from open and obvious dangers. If special aspects of a condition make even an open and obvious risk unreasonably dangerous, the premises owner has a duty to undertake reasonable precautions to protect invitees from that risk. Lacking such special aspects, the open and obvious condition is not unreasonably dangerous.

The Supreme Court found that in this particular case, Plaintiff tripped and fell on a common pothole because she failed to notice it. Potholes in pavement are an everyday occurrence that ordinarily should be observed by a reasonable person (Lugo v Ameritech Corporation, Inc., 464 Mich 512 [2001]).

Recommendations – Counsel should take a proactive approach to the defense of premises liability claims. It is suggested that Plaintiff's Deposition be obtained as quickly as possible so as to determine whether special circumstances in fact existed. If not, a Motion for Summary Disposition should be considered. At a minimum, the filing of such a motion will force Plaintiff's counsel to reveal his or her position, thus allowing the Defense to explore key issues more efficiently.

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