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

From the Editor

by John J. Gillooly

School’s In – Liability Claims to Follow

Shortly after the school bells begin to ring in another year early next month, liability claims are, unfortunately, soon to follow. As tort reform continues to reduce the number of product liability, medical malpractice and auto negligence cases, plaintiff attorneys have set their sights on public entities. Public entities are often viewed as “deep pockets”, with endless resources and little willingness to proceed to trial.

To combat the ever-increasing number of claims and the costs associated with defending these claims, please consider these helpful hints:

  • If your claim arises under federal law, make sure the case is properly removed to federal court. Federal judges know federal law and their dockets are far less crowded than the average state court docket which translates to a more efficient resolution.
  • Insist on a comprehensive litigation plan and budget within 30 days of a new suit being filed. The preparation of a plan can help focus the attention of your legal team and your employees.
  • Communication is the key to success. Every 30- 45 days, you should be provided with a comprehensive written update on the status of each and every matter in litigation. These monthly reports help keep your entire team focused.
  • Use a variety of techniques to investigate those bringing claims against you. With the exploding popularity of the internet, we are able to find a wealth of information on those who are suing you.

These are only a few ideas that can help you and your organization successfully defend a lawsuit. Garan Lucow Miller has many more great ideas that can work for you. Give us a call at 313.446.5501.

COMPLIMENTARY SEMINAR

On Thursday, October 5, 2006 Garan Lucow Miller will present a free seminar to review and discuss the essential tenants of the employment relationship and to offer practical advice on how to reduce the risk of liability. Specific topics will include:

  • An overview of current changes in the laws affecting a municipality’s relationship with its employees;
  • Employee record keeping;
  • Bargaining to impasse;
  • Immigration and Homeland Security; and
  • Returning employees to work after injury.

Reserve your seat now!!

Employment Law Seminar for Municipalities & Court Administrators
Thursday, October 5, 2006
9:00 am to 1:00 PM
Location: Automation Alley
2675 Bellingham
Troy, MI 48083
R.S.V.P. to dsedman@garanlucow.com

MUNICIPAL LAW UPDATE

by Jami E. Leach

Freedom of Information Act

Initial and future uses of information requested under the Freedom of Information Act (FOIA) are irrelevant in determining whether the information falls within an exemption, as is the identity of the person seeking the information. Taylor v. Lansing Board of Water and Light, Unpublished Court of Appeals No. 265533, issued June 27, 2006. ‚ Under the Freedom of Information Act (FOIA), there is no exemption for personnel files in general, with the exception of personnel files of law enforcement. Personnel documents of other public employees which contain performance appraisals, disciplinary actions, and complaints are generally not exempt from disclosure. Taylor v. Lansing Board of Water and Light, Unpublished Court of Appeals No. 265533, issued June 27, 2006.

Search and Seizure

The 6th Circuit Court of Appeals joins other federal circuits in reading Payton v. New York, 445 U.S. 573 (1980), as permitting forcible entry into the home to search for and arrest a suspect pursuant to a valid arrest warrant, regardless of whether the arrest is for a misdemeanor or a felony. Shreve v. Jessamine County Fiscal Court, ___ F.3d ___ (July 7, 2006).

Highway Exception

The highway exception to governmental applied to a case where plaintiff was injured when he tripped over the remnants of a stop sign that had previously been posted in the sidewalk. The sign was removed a year earlier by sawing it off. However, a “stump” from the post remained in the sidewalk and protruded slightly above the sidewalk. The Court rejected the City’s argument that the case fell outside the highway exception because it concerned traffic control devices, i.e. a stop sign. Rather, the Court agreed with plaintiff that the case involved an alleged defect in the sidewalk itself. Naji v. City of Dearborn, Unpublished Court of Appeals No. 264712, issued July 6, 2006. ‚ Under the highway exception to governmental immunity, a sidewalk is a walkway for pedestrian traffic that runs alongside of or parallel to a roadway. In this case, the plaintiff fell just several feet from the roadway on a walkway that was perpendicular to the street. Even though it was very close to the street, it was not “adjacent” to the street because it did not run parallel to or alongside the street. Therefore, the walkway did not fall within the exception and the City of Saline was immune. Carmody v. City of Saline, Unpublished Court of Appeals No. 259939, issued July 13,2006.

The recent Michigan Supreme Court opinion in Grimes v. Dept of Transportation, 475 Mich 72 (2006) which held that the shoulder is not part of the improved portion of the roadway designed for vehicular travel, and therefore, not within the highway exception to governmental immunity, will be applied retroactively. Therefore, Grimes barred the instant plaintiff’s lawsuit even though it was decided after Mr. Paul’s accident occurred. Paul v. Wayne County Dept of Public Svs., ___ Mich App ___ (July 20, 2006).

Gross Negligence

Plaintiff was injured in a collision with a drunk driver. In this gross negligence case against defendant police officers, plaintiff claimed the officers allowed or ordered the drunk driver to leave a premise. Summary disposition should have been granted because the officers owed no duty to the plaintiff. The officers’ duty is to the general public, and was not specifically to the plaintiff in this case. In addition, because plaintiff was injured by a third party who was driving drunk, the officers’ conduct was not “the” proximate cause of plaintiff’s injuries. Koulta v. City of Centerline, Unpublished Court of Appeals No. 266886, issued July 6, 2006. ‚ A prison inmate was killed by a branch of a falling tree while working on a prison work crew with the Road Commission. Plaintiff failed to establish gross negligence on the part of road commission employees. Plaintiff established only ordinary negligence. A plaintiff must show “almost a willful disregard of precautions or measures to attend to safety and a singular disregard for substantial risks.” Simply alleging that an actor could have done more is insufficient under Michigan law, because, with the benefit of hindsight, a claim can always be made that extra precautions could have influenced the result. Grecheski v. Newaygo County Bd of Road Comm, Unpublished Court of Appeals No. 263291, issued July 18, 2006. ‚ Plaintiff was enrolled in a boot camp after convictions for various burglaries. He was part of a work crew supervised by defendant when he was injured. The evidence presented indicated that plaintiff’s foot was injured by a lawn roller when he and other inmates decided to momentarily stop and rest. There was no evidence to indicate that defendant caused plaintiff to place his foot in a position to be run over. There was no question that defendant was not grossly negligent. Moreover, the proximate cause of plaintiff’s injury was not anything the defendant did or failed to do. Ricord v. Murphy, Unpublished Court of Appeals No. 268837, issued July 27, 2006.

Motor Vehicle Exception

Where plaintiff was injured while exiting a city owned shuttle bus when she slipped on ice on the step, the motor vehicle exception to governmental immunity did not apply and her claim was barred. Plaintiff’s allegations of negligence for failure to remove ice and snow or to install a step heater pertain to improper maintenance rather than to functions necessary for actual driving. Martin v. City of Grand Rapids, Unpublished Court of Appeals No. 259228, issued July 11, 2006. ‚ A city owned front end loader left running but parked and unoccupied in the street was not being “operated” for purposes of the motor vehicle exception to governmental immunity. Therefore, Garden City was immune from liability when the plaintiff suffered injuries and subsequently died after rear-ending the parked front end loader. Turner v. City of Garden City, Unpublished Court of Appeals No. 266610, issued July 13, 2006. ‚ This case can proceed to a jury based upon the motor vehicle exception to governmental immunity. Plaintiff collided with the rear of a road maintenance truck which was traveling 25-35 mph in the high-speed lane of a divided highway (where the speed limit was 55 mph) at night and without any lights or warnings. After the collision, plaintiff’s vehicle was physically forced off the road. The Court concluded that the use of appropriate lighting and signals are directly related to the operation of a motor vehicle. Hence, failure to use them can constitute negligent operation for purposes of the motor vehicle exception. Hardge v. Wayne County, Unpublished Court of Appeals No. 266780, issued August 1, 2006.

Other Exceptions to Governmental Immunity

The MISS-DIG Act does not create an exception to governmental immunity. State Farm v. City of Detroit, Unpublished Court of Appeals No. 267266, issued July 11, 2006. ‚ Pursuant to MCL 691.1417(2), a governmental agency is immune from tort liability for the overflow or backup of a sewage disposal system unless the overflow or backup was caused by a defect in the system of which the agency was aware or should have been aware and failed to take reasonable steps within a reasonable time to correct the defect. A “defect” is defined as “a construction, design, maintenance, operation, or repair defect.” MCL 691.1416(e). “Substantial proximate cause” is defined as “a proximate cause that was 50% or more of the cause of the event and the damage.” MCL 691.1416(1). In this case, plaintiff could not establish a “defect” and therefore, the City was immune. Nosal v. City of Potterville, Unpublished Court of Appeals No. 268647, issued July 20, 2006.