Monday, January 7, 2008

Injury cases dominate MSC's Jan. oral argument calendar

Plaintiff-side and insurance defense lawyers have a lot to look forward to when the Michigan Supreme Court hears its January calendar of oral arguments.

The high court's docket is top-heavy with personal injury cases this month. The court's crack public information staff, led by Michigan Lawyers Weekly alumna Marcia McBrien, has prepared a comprehensive case guide.

Some selected highlights:

Estate of Buckner v. City of Lansing: Three Lansing children, on their way to a fast-food restaurant, found the sidewalk blocked by ice and snow, at least partially the result of the city's snowplowing efforts. They walked in the street instead of crossing over to another sidewalk, which was cleared. Two were hit by a car. One died. Two suits were filed. The first alleged that the city's failure to remove an unnatural accumulation of ice and snow from the sidewalk forced the children to use the street. The second suit theorized that the sidewalk was physically defective and that the city was negligent by not properly closing the sidewalk. The city said the highway exception to governmental immunity did not apply to either case. The Court of Appeals dismissed the second suit but let the first one go forward. COA decision here. Parties' MSC briefs here.

Allison v. AEW Capital Mgt.: A tenant slipped and fell on snow and ice in the apartment complex parking lot and sued the landlord for violating MCL 554.139(1), which require a landlord to keep "the premises and all common areas" fit for "the use intended by the parties" and to "keep the premises in reasonable repair during the term of the lease. The bone of contention in this case is a footnote in Teufel v. Watkins, 267 Mich. App. 425 (2005), which stated that snow and ice are not premises defects, so a landlord has no statutory duty to deal with snow and ice removal. The Court of Appeals, in ruling that the landlord violated the statute, said the footnote was ignorable dicta. The landlord argues the footnote is binding precedent. COA decision here. Parties' MSC briefs here.

Rodriguez v. A.S.E. Indus.: A factory worker's scalp was ripped from her head by an unguarded machine roller. In the resulting product liability litigation, a jury awarded her $10 million and found the machine manufacturer 30 percent at fault. The jury also found the manufacturer was not grossly negligent. This finding would normally trigger a statutory cap on damages but in this case, the trial court refused to apply the cap after making independent factual determinations that the manufacturer knew about the defect, willfully disregarded that knowledge and that injury was likely to occur. The COA affirmed after ruling that a trial court may make factual findings inconsistent with the jury's findings, and may independently determine that the non-economic damages cap does not apply. COA decision here. Parties' MSC briefs here.

Mintner v. City of Grand Rapids.: A police car struck a pedestrian while she crossed the street. Toe and neck injuries, a closed head injury and a forehead scar were the basis of her no-fault complaint. The trial court tossed the suit but the COA saved the closed-head and scar claims. There should be lots of tangling with Kreiner v. Fischer, 471 Mich. 109 (2004), in this one. COA lead opinion here. COA concurring opinion here. COA concurring/dissenting opinion here. Parties' MSC briefs here.

Arguments begin Jan. 8 and 9 at 9:30 a.m. at the Hall of Justice in Lansing. Michigan Government Television will broadcast live, joining the court in progress at 10:00 a.m. each day. MGTV has a handy station locator for your local cable system. There are replays throughout the month, and tapes can be ordered. More information here.

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