Author(s): Nathan A. Dodson

From the Editor by Nathan A. Dodson

ANNOUNCING OUR NEW INDIANA OFFICE Garan Lucow Miller, P.C., a full-service law firm since 1948, providing quality representation to a national clientele from the Great Lakes Region, is pleased to announce that it has opened an office in Merrillville, Indiana, to further facilitate your claim and litigation needs in Indiana and Illinois.

Garan Lucow Miller, P.C. 8401 Virginia Street Merrillville, Indiana 46410 Phone: 219.756.7901 Fax: 219.756.7902 Toll Free: 877.804.2801 www.garanlucow.com

Garan Lucow Miller, P.C., is also pleased to announce that Gregory M. Bokota, Jennifer L. McCloskey and David A. Wilson have joined the firm as Shareholders in our new Merrillville, Indiana office.

Gregory M. Bokota was founding partner at Bokota Wilson McCloskey & Long, P.C. In 1985, Mr. Bokota earned his B.A. from the University of Chicago with honors, and in 1991, he received his J.D. from Indiana University School of Law. Mr. Bokota concentrates his practice in the areas of insurance defense litigation and appellate law. Mr. Bokota is licensed in the State of Indiana and State of Illinois.

Jennifer L. McCloskey was founding partner at Bokota Wilson McCloskey & Long, P.C. In 1992, Ms. McCloskey earned her B.A. from Hillsdale College, and in 1995, she received a J.D. from Valparaiso University School of Law. Ms. McCloskey concentrates her areas of practice in the field of insurance defense, criminal law and premises liability. Ms. McCloskey is licensed in the State of Indiana.

David A. Wilson was founding partner at Bokota Wilson McCloskey & Long, P.C. In 1990, Mr. Wilson earned his B.A. from University of Central Florida, and in 1996, he received a J.D. from Valparaiso University School of Law. Mr. Wilson concentrates his areas of practice in the field of insurance defense litigation, commercial trucking and transportation defense, and is a member in TIDA. Mr. Wilson is licensed in the State of Indiana and State of Illinois.

Robert D. Goldstein of our Grand Blanc office, Timothy J. Jordan of our Detroit office, and Kelly M. Kluting of our Grand Rapids office, are licensed in the State of Indiana. They are also available for assignments in both the Indiana and Michigan offices.

DECISIONS, DECISIONS Highlighting recent court decisions that affect your business BRACE YOURSELF

Two roller skating plaintiffs crash and burn after they collide with the Michigan Court of Appeals In the first of two roller rink cases recently decided by the Michigan Court of Appeals, Hines v. Skateland Arena, _____ Mich App _____, 2009 WL 3837361, the minor plaintiff alleged he was injured in a collision with an employee of defendant, while skating at its roller skating rink. The defendant moved for summary disposition alleging the claim was barred by the Roller Skating Safety Act (RSSA)(MCL 445.1721 et seq.). In support of its motion, the defendant relied on the plaintiff’s deposition testimony where he stated the collision occurred during a game of dodge ball. According to the plaintiff, the defendant’s employee, a floor guard, was on the rink floor monitoring the dodge ball game. The plaintiff testified he saw the employee and noticed the employee was focused on the game. The plaintiff further testified that he stopped paying attention to the employee and turned to watch

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the game. At that point, the two collided. The trial court denied the motion concluding there was an issue of fact whether the defendant’s employee was negligent in causing the collision.

On appeal, the defendant contended that the plaintiff assumed the risk of a collision with another roller skater and thus, his claim was barred under the RSSA. The Court of Appeals agreed, holding that the plaintiff assumed the risks of obvious and necessary dangers inherent in the sport of roller skating, which included the possibility he might be injured in a collision with other roller skaters. The Court also concluded that there was no evidence that the defendant’s employee failed to use good judgment while supervising the dodge ball game. Thus, the plaintiff could not establish a violation of the duties prescribed by the RSSA.

In the second case, Kline v. Skatemore, Inc, _____ Mich App _____, 2009 WL 4985026, the plaintiff attended a class at the defendant’s rink to receive lessons in the sport of roller derby. During the lessons, a fellow skater crashed into the plaintiff, causing the plaintiff to fall and strike her head on the floor. The plaintiff filed a cause of action against the defendant rink, alleging various negligence claims. The defendant moved for summary disposition pursuant to the RSSA. Same was granted by the trial court.

On appeal, the plaintiff contended the trial court erred in dismissing her complaint under the RSSA because she was not “truly engaged in the activity of mere roller skating” at the time of her injury, as contemplated by the RSSA. The Court of Appeals found to the contrary. The Court, relying on § 1722(c) of the RSSA, which defines “roller skater” as “a person wearing roller skates while that person is in a roller skating center for the purpose of roller skating,” found that the evidence established the plaintiff fit the statutory definition. The plaintiff also argued that while she knew the sport itself involved physical contact, she said she had no idea the first day of lessons would involve actual drills leading to potential physical contact. Again, the Court found no merit to the plaintiff’s position. The Court held that the plaintiff understood she was taking lessons to learn the sport of roller derby, which is a contact sport, and voluntarily chose to participate in a drill before the accident occurred. As a result, the Court could not conclude the contact during the class drill went beyond that ordinarily permissible in the context of roller derby.

COUNT ME IN

Michigan Court of Appeals considers the meaning of “participant” in a recreational activity The case, Willford v. Thorington, _____ Mich App _____, 2009 WL 4342520, arose from an injury to the plaintiff, a high school freshman, which occurred during a gym class soccer game at her school. The class was divided into several teams and the plaintiff was on the field with her team when her classmate, the defendant, ran onto the field to kick the ball away from her. The classmate missed the ball and connected with her knee, breaking her femur. The plaintiff sued for ordinary negligence and reckless misconduct. The defendant moved for summary disposition arguing ordinary negligence did not apply because he and the plaintiff were participating in a recreational activity and the injury she received was a risk inherent in the game.

In response to the motion, the plaintiff contended that her classmate was not a participant because his team was not part of the game. In denying the motion, the trial court held that the only participants were the players from the two opposing teams, including those on the field playing, and possibly those waiting to be called as substitutes. The trial court held that the defendant was not a participant because he was not a member of either team playing on the field. The trial court further held that even if the defendant could be considered a participant, a reasonable trier of fact could have concluded it was reckless misconduct to charge onto the field of play, to go for the ball, and then to collide with the plaintiff when he had no right to be on the field. The defendant appealed the trial court’s decision. The Michigan Court of Appeals gave careful consideration to the trial court’s definition of “participant.”

In doing so, the Court found the trial court’s interpretation to be overly narrow. The Court determined even under a narrower definition, the plaintiff was a participant because she was on the field playing soccer and the defendant, despite whether he was supposed to be playing at that time, was on the field playing in the soccer game. Therefore, the defendant was a participant as well. As for the issue of reckless misconduct, the Court held that the defendant was not on the field to randomly attack or harm anyone, as the plaintiff had argued. The defendant was on the field to get the ball away from the plaintiff. One of the risks inherent in soccer is getting kicked by another player who misses the ball. Accordingly, the defendant’s conduct of charging out onto the field of play, going for the ball, and colliding with the plaintiff was typical for a soccer game. Ultimately, the Court reversed the decision of the trial court.

PUT ON ICE

Plaintiff’s suit against university for injuries sustained during college hockey game gets a chilly reception from the Michigan appellate courts In Ward v. Michigan State Univ, _____ Mich App _____, 2010 WL 45832, a spectator brought a negligence action against Michigan State University, alleging that in March of 2004, she was struck in the head and injured by a hockey puck during a college hockey game at the University’s arena. She contended a defect, specifically the lack of Plexiglas protecting one section of spectators, caused the incident. In December of 2004, the plaintiff’s counsel mailed a letter addressed to “Sir/Madam” at “MSU Munn Ice Arena, East Lansing, MI, 48823.” In the letter, counsel advised he represented the plaintiff “in the matter of personal injuries she sustained as a result of an automobile accident” on March 12, 2004. Counsel then mailed a second similar letter in January 2005. Eventually, the plaintiff brought a lawsuit against the University under the proprietary function and public building exceptions to governmental immunity. The University filed a motion for summary disposition. The trial court granted the University’s motion as to the plaintiff’s claims under the proprietary function exception and denied the University’s motion as to the plaintiff’s claims under the public building exception. The University appealed by right and the plaintiff cross-appealed.

Before the Court of Appeals, the University argued that the trial court erred by failing to grant its motion for summary disposition because the plaintiff failed to serve the University notice of the occurrence of the incident as required by MCL 691.1406 as a precondition to bringing suit under the public building exception to governmental immunity. In that regard, the Court found the plaintiff completely failed to comply with the notice requirement of the statute. The letters that the plaintiff’s counsel mailed were not sent certified, return receipt requested; they were not mailed to persons who could lawfully receive civil process on the University’s behalf; they did not contain the information the statute requires; and finally, the letters were mailed more than nine months after the incident, well beyond the 120-day notice period MCL 691.1406 requires. Accordingly, the trial court erred by not granting the University’s motion for summary disposition regarding plaintiff’s claim under that exception to governmental immunity.

As it pertained to the plaintiff’s cross-appeal of the proprietary function issue, the plaintiff contended that the University intended to financially profit from its athletics department. In rebuttal, the University proffered an affidavit stating the ice hockey program specifically has been operating at a loss for the past 20 years. The Court, relying on Harris v. Univ of Michigan Bd of Regents, 219 Mich App 679, 716 NW2d 1 (1996), held that the University could conduct activity on a self-sustaining basis without being subject to the proprietary function exception. The Court further held, regardless of Harris, that the plaintiff failed to show that the University operated its ice hockey program primarily to generate a profit. For those reasons, the Court affirmed the trial court’s ruling on the proprietary function claim .

KEEPING UP WITH THE JONES’

A look at recent decisions from other jurisdictions that could affect your Michigan case TO BE, OR NOT TO BE… A SPORT. THAT IS THE QUESTION New York’s highest court limits primary assumption of risk to athletic participation Very recently, the New York Court of Appeals published Trupia v Lake George Central School Dist, _____ NE2d _____ , 2010 WL 1286414, a case involving a student, who fell off a stairway banister he was attempting to slide down and sued his school district under a negligent supervision claim. The school district filed a dispositive motion, relying on primary assumption of risk.

In its review of the case, the New York Court of Appeals narrowed the availability of primary assumption of risk significantly, suggesting that, in the aftermath of the state’s move to comparative fault, it should only be available in athletic injury claims. According to the Court:

“The doctrine of assumption of risk does not, and cannot, sit comfortably with comparative causation. In the end, its retention is most persuasively justified not on the ground of doctrinal or practical compatibility, but simply for its utility in facilitating free and vigorous participation in athletic activities.”

With that in mind, the Court found no justification to permit an assertion of assumption of risk defense in the case at bar. In the words of the Court, “The injury-producing activity here at issue, referred to by the parties as “horseplay,” is not one that recommends itself as worthy of [such] protection.”

The Court, however, went on to indicate that it was not ruling, as a matter of law, that children may never assume the risks of activities, such as athletics, in which they freely and knowingly engage.

Remember that Garan Lucow Miller, P.C. has nine offices throughout the State of Michigan to serve all of your legal needs:

Wayne County Office. . . . . . . . . . 1-800-875-1530
Washtenaw County Office. . . . . . 1-800-878-5600
Ingham County Office. . . . . . . . . . 1-888-910-0300
St. Clair County Office. . . . . . . . . 1-800-875-4400
Oakland County Office. . . . . . . . . 1-800-875-7600
Genesee County Office. . . . . . . . . 1-800-875-3700
Kent County Office. . . . . . . . . . . . 1-800-494-6312
Northern Michigan Office.. . . . . . 1-888-923-1611
Upper Peninsula Office. . . . . . . . . 1-888-841-7772

And again, Garan Lucow Miller is pleased to announce its newest office in Merrillville, Indiana, to further serve your legal needs:

Merrillville, Indiana Office . . . . . . . 1-877-804-2801
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