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 Unpublished Decisions (or those which have not been published as of the date of newsletter distribution) will be cited by Appellate Slip Opinion number.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

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Facts – This appeal concerned Defendant’s duty to control his dog for the purposes of a negligent failure to control action; whether a dog’s barking may be considered an "abnormally dangerous propensity" for the purposes of a strict liability action; and whether the barking of a visibly leashed dog could proximately cause Plaintiff’s injuries.

While Defendant and his employer were painting Plaintiff’s house, Plaintiff fell and broke her arm when she ran from Defendant’s barking dog, which was tied by a leash to Defendant’s truck. All parties conceded that the dog and the truck were on an adjacent vacant lot and not on Plaintiff’s property at the time of her injury.

Michigan Courts have previously held that owners of domestic animals may be strictly liable for the animal’s actions if the owner knows or has reason to know it has dangerous propensities; these propensities are abnormal for a member of its class, and; Plaintiff’s injury results from that abnormal and dangerous propensity of which the possessor knows or has reason to know. This Court held that barking, approaching strangers, and tugging on a leash are all common dog behaviors and are not "abnormally dangerous". In addition, the lower Court record was devoid of evidence tending to show that this dog’s behavior was vicious or dangerous during the incident at issue.

The Court also held that Plaintiff’s reaction to the dog’s barking was unusual and unexpected. Because the barking was not dangerous, Defendant had no duty to prevent it. It was unforeseeable for a person to flee in a panic from a leashed dog as in the instant case. Giouroukos v. Jungling, Michigan Court of Appeals Unpublished Decision Dated September 27, 2005, Docket Number 255462.

Recommendation – The Court of Appeals indicated that because dogs are generally assumed to be safe domestic animals, for the purposes for determining breach of duty in a negligence action, it is reasonable to presume that persons will react to dogs as if they are safe animals. Given that fact, the Supreme Court has required a specific showing of evidence that the particular animal or its breed has displayed dangerous propensities of which the Defendant/owner was aware or should have been aware in order for the injury to be deemed foreseeable. As such, it is very important that the animal’s background be explored and that a determination is made as to foreseeability under the facts presented.

Facts – Plaintiffs entered into an agreement to purchase real estate from Defendants. They claimed that since closing, they discovered that the electrical and sprinkler systems were not in good working order and that various types of mold were present in the home. Various theories were alleged including breach of contract, fraudulent misrepresentation, negligent misrepresentation, and intentional infliction of emotional distress.

In analyzing this case, the Court of Appeals held that in order to establish a prima facie claim of fraudulent misrepresentation, a Plaintiff must prove that the Defendant made a material representation; the representation was false; at the time the Defendant made the representation, Defendant knew the representation was false or made it recklessly, without knowledge of its truth as a positive assertion; the Defendant made the representation with the intention that Plaintiff would act upon it; the Plaintiff acted in reliance upon it; and the Plaintiff suffered damage.

With respect to the intentional infliction of emotional distress claim, the Court held that Plaintiff must prove the following elements which include extreme and outrageous conduct; intent or recklessness; causation, and; severe emotional distress. The threshold for showing extreme and outrageous conduct is high and no cause of action will necessarily lie, even where a Defendant acts with tortious or even criminal intent. The test is whether the recitation of the facts to an average member of the community, would arouse his resentment against the actor, and lead him to claim, "outrageous!".  Nalepka v. Hnatio, Michigan Court of Appeals Unpublished Decision dated September 15, 2005, Docket Number 262000.

Recommendation – As a part of its analysis, the Dissenting Opinion reiterated the long-standing proposition that an "as is" clause is unenforceable where a seller makes fraudulent representations before a purchaser signs a binding agreement. When investigating claims of misrepresentation or intentional infliction of emotional distress, all documentary evidence which might raise an issue of fact as to whether Defendants actively concealed or knowingly failed to disclose a defect should be obtained and thoroughly reviewed.

Facts – Decedent and several of her friends spent the evening consuming alcohol. One of the Defendants ended up driving Decedent’s vehicle with the Decedent and another individual as passengers. At some point, the vehicle crashed, Decedent was killed and the other passenger was seriously injured. Plaintiff’s estate filed a wrongful death action claiming negligence on the part of the driver, and violation of the Michigan Liquor Control Code on the part of the last bar frequented.

The trial court eventually concluded that reasonable minds could not differ that Decedent had voluntarily given the driver the keys to Decedent’s vehicle while the driver was visibly intoxicated, thereby contributing to Decedent’s own death. As such, the court granted summary disposition on the basis of the "Wrongful Conduct Rule".

The Wrongful Conduct Rule bars a claim where Plaintiff’s action is based in whole or in part on his or her own illegal conduct.

At the time of the accident, MCL 257.625(2) provided that the owner of a vehicle (or a person in charge or in control of a vehicle), shall not authorize or knowingly permit the vehicle to be operated by a person who is under the influence of intoxicating liquor or a controlled substance. Violation of that statute is a felony punishable by up to five years imprisonment if the intoxicated driver caused the death of another person. The degree of harm involved and the severity of punishment presented, take this kind of illegality outside the scope of a mere safety statute. Accordingly, a violation of that statute is of the magnitude to invoke the Wrongful Conduct Rule.

The Court noted that the Wrongful Conduct Rule might not apply if the decedent did not know, or had no way to know, that her driver was under the influence of liquor at the time. However, Plaintiff’s cause of action was premised on the fact that Decedent’s driver was visibly intoxicated. Barth v. Goal Tender Sports Pub and Grill, et al., Michigan Court of Appeals Unpublished Decision Dated September 22, 2005, Docket Number 262605.

Recommendation – This particular decision will be of help where there exists no genuine dispute of material fact that a Claimant allowed a visibly intoxicated individual to drive the Claimant’s vehicle. When investigating, one should especially determine whether any coercion was involved and whether Plaintiff knew or reasonably should have known of the visible intoxication.

Facts – Plaintiff was involved in an automobile accident which resulted in a diagnosis of "traumatic cervical myositis". Injuries included chronic neck pain, whiplash syndrome, neck and parascapular myofascial pain, and cervicogenic headaches. Treatment included nerve blocks, muscle relaxers, pain medication, and physical therapy. As a result, Plaintiff was out of work for a total of approximately 6-7 months, required assistance from coworkers because of pain, had foregone recreational activities she once enjoyed, significantly curbed her household chores, and limited her gardening activities. Plaintiff testified that her injuries interfered with sleep habits and decreased her ability to be intimate with her husband. In short, she claimed that all aspects of her life had been significantly impacted with no meaningful relief in sight.

Plaintiff’s treating physicians suspected that she had suffered a ligamentous injury of the neck, which was not healing. At least one doctor felt that Plaintiff’s neck pain and headaches were going to be more of a permanent injury. The illness was not subject to cervical correction. The prognosis for eventual recovery was poor.

In reversing the lower court’s grant of summary disposition based upon lack of serious impairment of body function, the Michigan Court of Appeals held that although self-imposed restrictions based on real or perceived pain do not establish the existence of a serious impairment of a body function, physician imposed restrictions that are based on real or perceived pain, can establish the extent of a residual impairment.

The Court found it significant that Plaintiff’s physician had limited her activities based upon her complaints of pain, and that Plaintiff’s physician had pinpointed a physiological basis for the pain (ligamentous injury).  McDanield v. Hemker, 268 Mich App 269 (2005).

Recommendation – This is a significant decision with respect to the serious impairment of body function threshold. The Court took it upon itself to interpret footnote 17 of the Kreiner v. Fischer decision (471 Mich 109 [2004]). In that footnote, the Michigan Supreme Court allegedly "inferred" that if a physician imposes restrictions based upon real or perceived pain, that fact can establish the extent of a residual impairment. In other words, if a physician believes that a patient is having pain and indicates to the patient that he or she should limit activities, the doctor need not offer a medically identifiable or physiological basis for imposing the restrictions.

Taken to its logical conclusion, this case would allow any Plaintiff to secure a written restriction on activities based solely upon a complaint of pain or discomfort. Notwithstanding the above, the trial court must make its ruling by utilizing the non-exhaustive list of objective factors enumerated within the Kreiner decision, which includes such inquiries as the nature and extent of the impairment, the type and length of treatment required, the duration of the impairment, the extent of any residual impairment and the prognosis for eventual recovery.

We suspect that the Supreme Court may well have more to say with respect to this decision and we will keep you updated.

Facts – Plaintiff was an employee of a company that sold and delivered hot tubs. While delivering a hot tub, Plaintiff allegedly slipped and injured himself. Plaintiff sued the owners of the residence for damages based on premises liability, alleging negligence in maintaining their residence and not warning Plaintiff of known dangers.

Defendants filed a notice identifying Plaintiff’s employer as a non-party at fault and alleging that the employer failed to properly train Plaintiff in the delivery of hot tubs. The trial court granted Plaintiff’s motion to strike the notice, reasoning that a duty must exist before fault can be apportioned. Plaintiff’s employer did not owe the employee a duty because of the exclusive remedy provision of the Workers’ Disability Compensation Act.

In reversing the trial court’s decision, the Michigan Court of Appeals held that a plain reading of the Comparative Fault Statutes, does not require proof of a duty before fault can be apportioned and liability allocated. The statutes only require proof of proximate cause. The employer’s alleged failure to train Plaintiff may have contributed to Plaintiff’s injury. Thus, the employer could be a proper non-party at fault, even though the employer could not be sued for negligence in its training or failure to properly train Plaintiff because of the exclusive provision of the Workers’ Disability Compensation Act. Kopp v. Zigich, et al., 268 Mich App 258 (2005).

Recommendation – This case is significant from the standpoint that the Michigan Court of Appeals has now clearly ruled that the Defense need not prove that a potential non-party at fault owes a specific duty before fault can be apportioned. In other words, any potential party who may have been a proximate cause of Plaintiff’s injury, can be identified for comparative fault purposes. In theory, this could include employers, treating physicians and governmental entities.

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