Facts – Michigan State Police Trooper Janicki was responding to a reported breaking and entering in progress when he collided with a vehicle driven by the decedent. According to the factual allegations contained in the Complaint and the facts revealed during deposition testimony, the trooper was driving at a high rate of speed when the decedent pulled out in front of him from a side road. The trooper was unable to avoid impact.

The Court discussed various statutes which applied to this particular lawsuit. An emergency vehicle is permitted to exceed the speed limit provided that it complies with certain requirements. MCL 257.603. A driver confronted by an approaching emergency vehicle is required to stop and yield the right-of-way. MCL 257.653. A driver approaching a stop sign is required to stop and yield the right-of-way to a vehicle which has entered the intersection from another highway or which is approaching so closely on the highway as to constitute an immediate hazard during the time when the driver would be moving across or within the intersection. MCL 257.649(6). MCL 257.633(2) provides that speed limitations shall not be construed to relieve the Plaintiff in a civil action from the burden of proving negligence on the part of the Defendant as the proximate cause of an accident. Moreover, police officers are exempt from speed limits when traveling in emergencies, provided that the driver of the vehicle while in motion sounds an audible bell, siren or exhaust whistle as may be necessary or when the vehicle is equipped with at least one lighted lamp displaying a flashing, oscillating or rotating red or blue light. This exemption does not protect the driver of the vehicle from the consequences of a reckless disregard of the safety of others. MCL 257.632.

The Court concluded that an officer’s physical handling of a motor vehicle during the course of responding to an emergency can constitute negligent operation of a motor vehicle. It was determined that there were multiple issues of material fact for Jury determination as to the manner in which the trooper was operating his vehicle immediately prior to the collision. Newton v Michigan State Police, et al, Michigan Court of Appeals Published Decision dated August 10, 2004, Docket No. 247482.

Recommendation – When dealing with emergency vehicle accidents, one should make specific note of the statutory duties of all drivers involved.

Facts – A severe rainstorm caused substantial erosion damages at Plaintiff’s golf course. A lawsuit was filed, claiming that the general contractor was responsible for the damage because it failed to maintain the drainage system. Defendant argued that the rainstorm was so severe that it was an "Act of God", which as a matter of law, relieved it of liability.

The Michigan Supreme Court has previously described an "Act of God" as "those events and accidents which proceed from natural causes and cannot be anticipated and provided against, such as unprecedented storms, or freshets, lightning, earthquakes, etc. The definition of an "Act of God" requires an unusual, extraordinary, and unexpected manifestation of the forces of nature, and requires the entire exclusion of human agency from the cause of the injury or loss." RVP Development Corp. v Furness Golf Construction, Inc., et al, Michigan Court of Appeals Unpublished Decision dated August 3, 2004, Docket No. 241125.

Recommendation – This holding is self-explanatory. A careful investigation surrounding the manner in which damages occurred may be warranted however.

Facts – In August 1996, Daniel Cameron (a minor) was struck by an automobile and suffered a closed head injury. Defendant refused to pay for certain expenses resulting from this injury, allegedly in violation of the applicable no-fault provisions and the insurance contract. Plaintiffs brought this action, seeking payment of the contested expenses.

In reversing the Trial Court’s grant of Summary Disposition in favor of Plaintiffs, the Michigan Court of Appeals held that the saving provision by its terms, applied only to persons entitled to bring an action under that act. In other words, it was found to be non-applicable to the statute of limitation requirements of the No-Fault Act. As such, Plaintiff minor did not have one year after the date that his disability was removed through death or otherwise to file his cause of action. Cameron v Auto Club Insurance Company, 263 Mich App 95 (2004).

Recommendation – As always, one of the first inquiries which should be made after a lawsuit is filed, is whether the cause of action is barred by the applicable statute of limitations. In first-party actions involving a minor, the provisions of Section 3145 will control.

Facts – Plaintiff (an 11-year-old boy) was injured at Defendant’s facility. Defendants moved for Summary Disposition claiming that the condition was open and obvious. Plaintiff contended that a child could not be expected to appreciate such a danger. It was also argued that Defendants owed a special duty of care inasmuch as the ladder from which Plaintiff fell, was created for Defendant’s child business invitees.

In reversing the Trial Court’s grant of Summary Disposition, the Michigan Court of Appeals held that minors are required only to exercise that degree of care which a reasonably careful minor of the age, mental capacity and experience of other similarly situated minors would exercise under the circumstances. Likewise, reasonable care requires a person to exercise greater vigilance when he knows or should know that children are nearby because children act upon childish instincts and impulses.

The reasonable expectation is for a child to be held to a lesser standard of forseeability than an adult. Child invitees are entitled to greater protection due to their inability to understand or appreciate danger, or to protect themselves against it. In conclusion, the Court believed that it did not necessarily follow that this Plaintiff (or other child invitees) would have appreciated the risk of injury present under the circumstances at issue. As such, a question of fact existed for Jury determination. Bragan v Symanzik, et al, 263 Mich App 324 (2004).

Recommendation – As the Court of Appeals noted, the Michigan Supreme Court has yet to address the open and obvious doctrine as it relates to children. We suspect that this case may well give it the opportunity to do so. When investigating a claim which involves a minor, one should carefully document the conditions which existed and attempt to determine whether the claimed defect should have been recognizable to a reasonably careful minor of that particular age group.

Facts – In these consolidated cases, both insuring agreements contained a provision that no legal action against the insurer could be commenced more than one year after the date of accident. (The Trial Courts had previously determined that the one-year limitation periods were invalid under MCL 500.2254 which disallows provisions in an insurance contract which prohibit a member or beneficiary from commencing and maintaining suits).

Under MCL 600.5807(8) the statute of limitations for filing an action to recover damages or sums due for breach of contract is six years unless another period is specified. The Court of Appeals held that the limitation period must be tolled from the time the insured gives notice of the claim until the insurer formally denies liability for the claim. A counter-offer is not a formal denial of liability. Robinson, et al v Allied Insurance Company, et al, Michigan Court of Appeals Unpublished Decision dated August 3, 2004, Docket Nos. 247375; 251003.

Recommendation – A formal denial should always be made when a final decision has been made that benefits are not payable. We would note that there is currently a split of authority with respect to whether an insurer can properly shorten the statute of limitation period in an insurance contract. We will continue to address this issue as further appellate decisions dictate.