Author(s): John J. Gillooly, Jami E. Leach

From the Editor

by John J. Gillooly

Record Retention & Management
Did you know that all of the records of your governmental agency must be listed on an approved Retention and Disposal Schedule? These schedules determine the amount of time that your records must be preserved before they can be sent off to the shredder. Here are some retention and disposal schedules for some common governmental records:

  • Accident Reports . . . . . . . . . . . . . . . . . . . . . 3 years
  • Arrest Cards & Logs . . . . . . . . . . . . . . . . . 75 years
  • Background Checks . . . . . . . . . . . . . . . . . . . . 1 year
  • Freedom of Information Requests (FOIA) . . . 1 year
  • Non-Criminal Photographs . . . . . . . . . . . . . 3 years
  • Subpoenas . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 year
  • Tickets/Citations . . . . . . . . . . . . . . . . . . . . . 2 years
  • American Disability Act Files . . . . . . . . . . . 3 years
  • Building Plans . . . . . . . . . . . . . . . . . . . permanently
  • Committee Records . . . . . . . . . . . . . . . . . . . 2 years
  • Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 years
  • Job Applications/Interviewed/Not Hired . . . 2 years
  • Job Applications/Not interviewed/Not Hired 1 year
  • Litigation Files . . . . . . . . . . . . . . . . . . . . . . 10 years
  • Personnel Files . . . . . . . . . . 7 years after separation

Keep in mind that records exist in a wide variety of formats which include photos, videos, maps, electronic mail, and other databases. For more information on how Garan Lucow Miller can help your public entity with record retention issues, please call me directly at 313-446-5501.

LEGAL UPDATE

by Jami E. Leach
Clark-Murphy v Foreback, F3d (C.A.6, Mich, 2/6/06). The Sixth Circuit Court of Appeals affirmed the denial of qualified immunity as to 11 employees of the Bellamy Creek Correctional Facility, and reversed as to 4 others. The deceased plaintiff was a prisoner at Bellamy. In the six days leading up to his death, a “heat alert” was in effect for the prison due to extremely high temperatures. The deceased passed out while waiting in line to enter the mess hall. He was taken to an observation cell and was noted to be exhibiting odd behavior such as talking to himself and crying. Over the next five days, the deceased continued to exhibit odd behavior. He did not sleep, eat or drink any water. Some of the officers on duty thought the decedent was faking, while others just assumed that he was being seen by an on-site psychologist because a Roberta-R form had been filled out. At several times over the five-day period, the water in the deceased cell was turned off. The unit chief of the outpatient mental health unit observed the deceased and informed the deputy warden that the deceased needed intense psychiatric treatment. No such treatment was given and the deceased was essentially left in his cell unattended for five days. On the sixth day he was found dead of dehydration.

The Court found that the deprivation of water and medical care, including psychological services, would be sufficiently serious to satisfy the objective aspect of deliberate indifference. As to the subjective aspect - whether the defendants ignored the deceased’s medical and safety needs – the Court divided the defendants into the two who witnessed the deceased’s passing out and brought him to the observation cell, and the thirteen defendants who were responsible for the deceased in the days that followed. As to the two, the Court found that they were not deliberately indifferent. As to the thirteen, the Court found that two did not have sufficient exposure to the deceased to make out a triable issue of fact that they acted with deliberate indifference to his care. The other eleven, however, repeatedly perceived sufficient facts to infer that the deceased faced serious risks to his health and safety. The matter was remanded as to the eleven for further proceedings.

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Rakowski v Sarb, Mich App (2/7/06). A municipal building inspector does not owe a duty of care in common law negligence to protect a homeowner’s invitee from personal injury sustained by the invitee because of an allegedly defective structure inspected and improved by the building inspector. In this case, the inspector was only required to do a visual inspection of the structure to determine whether it met the local building code requirements. There was no relationship between the inspector and the homeowner’s invitee out of which a duty might arise. While plaintiff’s fall after leaning against a defective railing was foreseeable, any risk of an injury occurring because of faulty construction stemmed directly from – and was more closely related to - the action or inaction of the builder or homeowner than to the conduct of the inspector, especially where the injury did not occur until six months after the inspection.

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Georgia v Randolph, US (3/22/06). The United States Supreme Court recently issued an opinion regarding consent as an exception to the warrant requirement. In Georgia v Randolph, the Court held that a police search conducted with the consent of one residential occupant over the objection of the other occupant was not reasonable under the Fourth Amendment. The majority opinion (5/3) announced a bright line rule that “if a potential defendant with a self-interest in objecting is in fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable search.” The Court pointed out that while police officers may not be able to enter and search in this situation, nothing prevents the ”consenting occupant” from, of his own initiative, delivering evidence to the police. The officers are still free to leave and secure a warrant, or if exigent circumstances exist, to enter and search without a warrant.

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Jackson County Drain Comm’r v Village of Stockbridge, Mich App (1/19/06). The Court of Appeals reiterated that there is no trespass-nuisance exception to governmental immunity and cited Pohutski v City of Allen Park, 465 Mich 675 (2002). In the instant case, plaintiffs argued that Pohutski did not apply because they were only seeking equitable relief. The Court of Appeals noted that Pohutski did not specifically address whether a trespass-nuisance action that merely seeks abatement of a nuisance is barred by governmental immunity. Instead, the Court clearly stated that MCL 691.1407 did not permit a trespass-nuisance exception to governmental immunity. The plain language of the Governmental Tort Liability Act does not limit the immunity from tort liability to liability for damages. Governmental immunity is to be broadly construed, and therefore, unless an exception to immunity is found in the act itself, the nuisance claim (even if only equitable in nature) must fail.

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Safeco Property & Casualty Ins Co v City of Detroit, Michigan Court of Appeals #258977 (03/16/06). In another case involving an alleged trespass-nuisance, the Court again held that there is no such exception to the broad grant of governmental immunity. This case involved a fire that started at a vacant home owned by the City of Detroit.

The fire spread to a neighboring home insured by Safeco. Plaintiff sought damages based upon trespass-nuisance and inverse condemnation. The Court held that governmental immunity barred the trespass-nuisance claim. Inverse condemnation requires a plaintiff to prove that the government’s actions were a substantial cause of the decline of its property and that the government abused its legitimate powers in affirmative actions directly aimed at the plaintiff’s property. Merely alleging a negligent failure to abate a nuisance does not establish an affirmative governmental action directed at the plaintiff’s property.

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Snorton v. Mount Clemens School District, Michigan Court of Appeals #257615 (3/28/06). This case arose from alleged physical and sexual assaults of three second grade plaintiffs by another second grade boy in the classroom and gymnasium. The classroom teacher, gym teacher and principal were named defendants, along with the school district. The plaintiffs alleged gross negligence in failing to supervise and discipline the boy. The Court granted summary disposition to all defendants, finding that their conduct did not amount to gross negligence that was the proximate cause of the injuries. The Court pointed out that regardless of whether the individual defendants were grossly negligent, the “one most immediate, efficient, and direct cause” preceding plaintiff’s injuries was the assault by the boy, not the conduct of the defendants.

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Manuel v. Gill, Mich App (3/23/06). Plaintiffs were confidential informants who brought suit against several law enforcement agencies and officers under 42 USC §1983 alleging liability under “the state-created danger theory of liability”. Liability under this theory may be imposed if a plaintiff shows all of the following: 1) an affirmative act by the state which either created or increased the risk that the plaintiff would be exposed to an act of violence by a third party; 2) a special danger to the plaintiff wherein the state’s actions placed the plaintiff specifically at risk, as distinguished from a risk that affects the public at large; and 3) the state knew or should have known that its actions specifically endangered the plaintiff. The Court held that defendants were not liable because the plaintiffs voluntarily assumed the risks inherent in participating in an undercover investigation and none of the plaintiffs ever sought to terminate their participation in the operation.

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Cooper v. Washtenaw County, Mich App (4/4/06). This case arose out of the suicide of plaintiff’s decedent while confined in a holding cell at the 15th District Court. Summary disposition was properly granted to the individual defendants because their conduct was not the proximate cause of the death. Plaintiff argued that causation in such a situation was intertwined with foreseeability and that if the decedent’s actions were foreseeable, then those actions are not a superseding cause, and thus, defendants’ conduct may be deemed “the proximate cause”. The Court of Appeals refused to adopt that argument, pointing out that foreseeability of an intervening cause is not relevant to whether it may be deemed “the proximate cause” under the statute.

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Lloyd v. Croom, Michigan Court of Appeals #265763 (4/6/06). The motor vehicle exception to governmental immunity did not apply to this case where a vehicle swerved to avoid a city owned bus and struck the plaintiff’s vehicle. The exception allows liability only for injuries “resulting from” the negligent operation of a government-owned vehicle, as opposed to a lesser “but for” standard. Because there was no physical contact between the bus and the plaintiff’s car, or the bus and the other car, the city was immune.
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