Author(s): John J. Gillooly, Sarah Robertson

From the Editor

by John J. Gillooly

Alternative Dispute Resolution
There is absolutely no doubt but that all types of public entities need to proceed to trial on more cases. Proceeding to trial often sends a clear and convincing message that you are not going to settle a claim and pay money to someone simply because you have been sued. More often than not, trials result in victories.

Assume for a moment, however, that you wish to settle a claim in advance of the litigation process. Alternative Dispute Resolution (ADR) is a mechanism that can help you achieve a wide variety of goals in a very short period of time.

For instance, a private mediation or facilitation can be scheduled in short order which benefits you in countless ways. Confidentiality, cost savings, evaluating the strengths and weaknesses of your opponent’s case all weigh heavily in favor of getting a claim into mediation as soon as possible.

There are any number of highly qualified former judges and practicing attorneys who specialize in trying to resolve pre-litigation claims in the most effective and efficient manner possible. The next time you are confronted with a claim that may result in litigation, consider an early mediation or facilitation.

For more information on how these and other types of ADR can benefit your public entity, please call me directly at 313.446.5501.

Municipal Law Update

by Sarah Robertson

Qualified Immunity
Plaintiff-decedent had been issued three protective orders against the father of her son because he had abused her. The abuse continued until finally the father broke into plaintiff-decedent’s home, killed her and two of her friends, and then killed himself. Plaintiff sued the father’s sister, who drove him to plaintiff-decedent’s house on the day of the murder, and the Memphis Police Department and individual officers for violating plaintiff’s 14th Amendment rights. The district court denied the officers’ motions for summary judgment based on qualified immunity finding that their actions were not discretionary under Tennessee law. The officers appealed. The 6th Circuit Court of Appeals found that, because police officers retain some discretion when enforcing protective orders under the Tennessee statute, the officers could avail themselves of the qualified immunity defense. In determining whether the officers were entitled to qualified immunity, the Court noted that state actors cannot be liable for private acts of violence under a substantive due process theory unless the state has a special relationship to the victim, and the state creates the danger that led to the victim’s harm. Here, the Court found that a protection order does not create a special relationship between the state and the individual who petitioned for the order, and that the officers’ alleged inaction could not satisfy the state-created danger exception. Finally, the Court held that plaintiff could not establish a procedural due process claim where the enforcement of Tennessee protective orders does not create a property interest protected by the Due Process Clause of the 14th Amendment. Hudson v Memphis Police Officer Owen (6th Cir No. 05-6575, 1/26/07).

Governmental Tort Liability Act Plaintiff filed a lawsuit seeking a writ of mandamus to compel defendants to comply with a statute so that he could dispose of unclaimed vehicles that were accumulating on his property. Plaintiff also sought damages for defendants’ failure to comply with the statute in the past. The trial court denied defendants’ motion for summary disposition finding a question of fact as to whether the defendants acted in good faith. Defendants appealed. The Court of Appeals found that damages in a mandamus action are specifically permitted by statute. The Court also found that a mandamus action is not subject to the governmental tort liability act (“GTLA”) so that the statutory grant of damages in mandamus actions is not subject to the GTLA. Where mandamus addresses a claim of governmental inaction, the GTLA provides for immunity when a governmental agency is taking action. Therefore, governmental tort immunity is inapplicable to any suit in which mandamus may be granted. Finally, the Court also noted that a mandamus action is an equitable action, not a tort action, so it would fall outside the provisions of the GTLA. Mercer v City of Lansing, ___ Mich App ___; ___ NW2d ___ (2/22/07).

FOIA Plaintiff brought suit against defendant under the FOIA. Plaintiff had presented defendant’s supervisor and FOIA coordinator with a FOIA request on January 29, 2005. That request was denied, in writing, on February 2, 2005. Plaintiff then presented defendant’s board with an appeal of the denial on March 14, 2005. The board met that same night and decided to continue its discussion on plaintiff’s request at a special meeting to be held on April 7, 2005. Plaintiff then filed a motion for trial hearing in September of 2005 in which she alleged that defendant denied her the right to copy and inspect the requested records. The trial court found that plaintiff had failed to comply with the statute of limitations governing FOIA causes of action. Plaintiff appealed. The Court of Appeals found that the FOIA requires that any action commenced in the circuit court must be commenced within 180 days of the “final determination” made by the “public body.” The public body’s final determination is the “written notice denying a request for a public record in whole or in part. Therefore, in this case, defendant’s final determination to deny plaintiff’s FOIA request occurred on February 2, 2005, when plaintiff was informed in writing that her request was denied. Plaintiff had 180 days from that date to file suit. She did not do so, and her suit was subsequently barred by the statute of limitations. Loud v Lee Township (Unpub, COA No. 269256, 1/30/07).

Plaintiff filed a FOIA request with defendant for a copy of a police incident report related to an assault that occurred on defendant’s premises. Defendant denied plaintiff’s request under the FOIA’s privacy exemption and the law enforcement purpose exemption. The trial court agreed that the report was exempt from disclosure under those provisions and dismissed plaintiff’s complaint. Plaintiff appealed. The Court of Appeals found that, under FOIA, defendant was required to provide a complete particularized justification as to why each public record was exempt and should separate all exempt materials from nonexempt materials making the nonexempt materials available for copying and examination. Where defendant failed to specifically justify its claimed exemptions, the trial court erred in determining that defendant had met its statutory burden to sustain its claim of exemption. The Court further found that the police report could be separated into exempt and nonexempt material so that portions of the report could be released. Therefore, the Court remanded the matter back to the trial court and ordered the trial court to conduct an in camera review of the report to determine what, if any, portion of the report was exempt. State News v Michigan State University, ___ Mich App ___; ___ NW2d ___ (3/6/07).

Highway Exception Plaintiff suffered injuries when he tripped and fell over a guardrail protruding over the sidewalk on which he was speed walking. Plaintiff sued defendant, the City of Flint. Defendant argued that the guardrail is not an improved portion of the highway so that the highway exception to governmental immunity does not apply and governmental immunity precludes plaintiff’s claim. The trial court denied defendant’s motion for summary disposition. The Court of Appeals found that defendant’s argument that the guardrail is an installation outside the improved portion of the highway had merit. However, the focus in this case should be on the area in which plaintiff actually tripped, not just the guardrail. Plaintiff fell in an area that meets the definition of a sidewalk and therefore, defendant had a statutory obligation to actively perform necessary repairs to maintain the sidewalk in reasonable repair. The Court of Appeals found that a genuine issue of material fact existed regarding whether defendant undertook the necessary repair work to maintain the sidewalk in a reasonably safe condition. The Court of Appeals further found that a question of fact existed as to whether defendant had notice of the condition where a police report noting the damage to the guardrail had been generated several weeks before plaintiff’s fall. Hovanec v City of Flint (Unpub, COA No. 273509, 2/13/07).

Plaintiff fell in the parking lot of defendant’s airport and sued defendant under the highway and proprietary function exceptions to governmental immunity. The trial court denied defendant’s motion for summary disposition. The Court of Appeals found that the highway exception to governmental immunity cannot be extended to public parking lots which are owned or operated by governmental entities so that defendant is entitled to summary disposition on that issue. The Court of Appeals also found that, regardless of whether defendant had a secondary purpose of making some pecuniary profit from the parking operation, it is still apparent that the primary purpose of the parking operation is to directly facilitate practical use of the airport for its function as an airport. Therefore, as a matter of law, the parking operation did not constitute a proprietary function and plaintiff’s claim under the proprietary function exception to governmental immunity so that defendant is entitled to summary disposition on that issue as well. Isaac v Standard Parking Corp (Unpub, COA No. 272539, 2/15/07).

Helpful Tips

We can’t emphasize enough the importance of documenting everything, either in writing, by video, audio, or photograph. For example:

  • Injuries caused by defective conditions on sidewalks or on buildings – photograph the alleged defects up close, show measurements and the surrounding area.
  • In police situations, if restraint is required in jail, document the exact reason and exact times and video tape the entire restraint if possible.
  • If someone complains of a need for medical attention while in police custody, inform a supervisor and document it. Better to err on the side of caution and get some medical attention than to end up with a lawsuit later for failing to do anything.
  • In most cases, statutes of limitation expire in 3 years, so if there is any chance of a lawsuit, save photos, tapes and documentation at least that long.