Author(s): John J. Gillooly, Karen Ludden

From the Editor by John J. Gillooly

All too often we begin our mornings by hearing about lawsuit abuse and how civil litigation against individuals, corporations and municipalities has replaced some of ourcountry’s favorite pastimes. Although some argue that fundamental concepts of personal responsibility continue to erode, there are several easy steps that your company or municipality can take to root out frivolous claims.

When served with a lawsuit that you believe to be frivolous, agree with your legal representatives to develop an effective and efficient legal strategy to put some heavy-duty pressure on those bringing the claims against your organization or municipality. Combating fraudulent lawsuits does not necessarily mean a major investment in attorney time or resources.

For instance, consider retaining the services of a qualified private investigator to conduct a discreet video surveillance of the person suing you. In retaining the services of a private investigator, you should only give them very limited monetary authority at the very beginning of an assignment, with assurances that additional authority might come to play if they uncover some interesting information about the person suing you. The internet has proven to be an absolutely fantastic tool to develop and obtain additional information about those suing you. Websites such as zabasearch.com, knowx.com, google.com and many others can get you very personal information about your courtroom adversary. Oftentimes, information obtained from credit searches, bank records, Social Security Administration and many other depositories of public information can give you information about your opponent that you never dreamed of.

Most importantly, we simply need to bring more cases to trial. The odds are stacked in favor of defendants when we proceed to trial. Juries continue to be very hesitant to award money to people who deliberately lie about the facts and circumstances of their alleged accident.

While paying a nominal settlement has the immediate impact of getting rid of a lawsuit, such a practice can really hurt you in the long run. Once attorneys realize that your municipality or organization does not simply pay nuisance type settlements every time a lawsuit is filed, you will see the number of lawsuits against your municipality or organization begin to decline.

Heads Up

Everyone involved in the litigation of §1983 claims is aware of how complicated the substantive law can be as it develops and is applied to the circumstances presented by the particular case at hand. In its August 5, 2008 published opinion in Ford v County of Grand Traverse, #07-1062, the Sixth Circuit has reminded us that there are also procedural complexities that must be understood and followed as a case moves from the summary judgment stage to trial, and on to post-judgment motions and appeal. The Ford opinion discusses the necessity of articulating issues (in this case the liability of the governmental entity in the event the officers are exonerated) in both the Rule 50(a) motion at the close of proofs, the Rule 50(b) motion following the verdict, and on appeal. It also points out the necessity of preserving these issues by the formulation of a proper jury verdict form. Moreover, the importance of properly formulating the notice of appeal so as to allow appellate consideration of all issues was discussed in Judge Clay’s dissent in the August 13, 2008 unpublished Sixth Circuit opinion of Kinkus v Village of Yorkville, #07-3483, where he objected to consideration of entity liability on the officer’s appeal because of the wording of the notice of appeal and the manner of briefing. These cases demonstrate that the failure to follow the technical requirements of the court rules can lead to anamolous results, including the imposition of liability which is not legally defensible.

[The Ford opinion also bears note with regard to its discussion of the causation element of a §1983 claim against an entity, pointing out that the relevant question is not simply whether a policy or custom of the entity caused the plaintiff's injury, but also whether there was a causal link between the policy and an injury of constitutional magnitude – in other words, whether the policy evidenced a deliberate indifference to constitutional rights.] This case serves as a timely reminder of how important it is to select legal counsel who are well versed in municipal and constitutional law and who are familiar with the technical procedural requirements involved in such matters. Our municipal litigation and appellate departments are happy to assist you with your questions, claims, lawsuits and appeals.

MUNICIPAL LAW UPDATE by Karen Ludden

FOIA

The Michigan Supreme Court recently held that University of Michigan employees’ home addresses and telephone numbers meet both prongs of FOIA’s privacy exemption because that information is “of a personal nature” and its disclosure would constitute a “clearly unwarranted invasion of an individual’s privacy.” In reaching this conclusion, the Court revised the definition of “information of a personal nature” to include not only information that is embarrassing or intimate, but that information which is private or confidential in nature. The Court reasoned that the 2004 enactment of the Identity Theft Protection Act and similar statutes intended to reduce the dissemination of “personal identifying information” including a person’s name, address and telephone number demonstrates a change in the “customs, mores, or ordinary views of the community” that an earlier Michigan Supreme Court decision had identified as relevant to determining whether information was of a personal nature. Michigan Federation of Teachers, et. al. v. University of Michigan, Supreme Court Order 133819, 7/16/08.

OPEN MEETINGS ACT/GOVERNMENTAL IMMUNITY/HOSTILE WORK ENVIRONMENT

In an unpublished decision, the Court of Appeals affirmed the lower court’s dismissal of a city manager’s claim for tortious interference with a business relationship, breach of contract, and violation of the Open Meetings Act because when he was terminated. The Court reasoned that the city manager was an at-will employee and there was insufficient evidence to show that there was unjustified interference with his employment relationship or any wrongful motivation in actions by members of the city counsel to seek his termination. The Court further ruled that the Open Meetings Act was not violated because plaintiff had failed to prove that organized sub-quorum meetings had actually occurred. The Court, in dicta, noted that informal canvassing of members of council to determine the status of votes on a particular issue does not violate the Open Meetings Act. Collins v Ham, et al, Unpublished COA No. 275493, 6/17/08.

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In an unpublished decision, the Court of Appeals affirmed in part and reversed in part the lower court’s denial of a motion for summary disposition where an inspector failed to inform property owners that their parcel of
land was located in a flood plain. The Court concluded that there was insufficient evidence of gross negligence, necessary to circumvent governmental immunity given to employees who are acting within the scope of their authority. Gross negligence is statutorily defined as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” Failing to investigate or inform the property owners that the parcel was in a flood plain did not rise to the level of gross negligence. The Court, however, found a question of fact as to whether the individual inspector was a township employee or an independent contractor. The individual was paid a monthly fee by the township and received additional monies for each permit issued once the construction was complete, however, the township did not withhold taxes, gave minimal training for the position, and provided limited oversight of his work with no routine supervision. Hall v Bank, et al, Unpublished COA No. 276471, 6/17/08.

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On remand from the Supreme Court and in a published decision, the Court of Appeals affirmed the trial court’s granting of summary disposition to defendant governmental employees who distributed to various school districts lists of employees with criminal convictions, in conformance with their reading of the revised school code, which had been amended in 2005. The plaintiff was a certified teacher and member of the Michigan Education Association who alleged that he was falsely identified as having criminal convictions. The court ruled that the plaintiffs were entitled by common law to qualified immunity. Frohriep v Flanagan, et al. Published COA No. 273426, 4/29/08.

HIGHWAY DEFECT

In a recent Michigan Supreme Court case, the Court granted leave and reversed a Court of Appeals decision that the accumulation of ice and snow on a sidewalk does not constitute a “defect” in a highway that would subject the governmental entity to liability. A municipality has a duty to “maintain the highway in reasonable repair,” which constitutes an exception to the general ban on tort liability for governmental functions. Estate of Chantell Buckner v City of Lansing, et al, S. Ct. No. 133772, 4/25/08.

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In an unpublished decision, the Michigan Court of Appeals recently ruled that the alleged existence of a pothole on a county road for less than a week did not rise to the level of actual or constructive notice necessary to make a valid claim of the highway exception to governmental immunity. The Court held that the plaintiff’s “acknowledgment that she did not see this pothole when she traveled that area a work earlier is incompatible with her argument that defendant had notice of the claimed defect.” Minhas v. Oakland County Road Comm, Unpublished COA No. 278477, 7/15/08.

FOURTH AMENDMENT

The United States Supreme Court recently ruled that Virginia police did not violate the Fourth Amendment when they made an arrest that was based on probable cause but prohibited by state law, or when the performed a search incident to the arrest. Under Virginia state law, the officer should have issued a summons instead of arresting him; however, the Court found that, while Virginia law “chooses to protect individual privacy more than the Fourth Amendment,” it also chooses not to attach to violations of its arrest rules the potent remedy that Federal Courts have applied to Fourth Amendment violations.” The Court went on to reason that arrest based on probable cause serves interests that justify seizure. Arrest ensures that a subject appears to answer charges and does not continue a crime, and it safeguards evidence that enables officers to conduct an in custody investigation. Virginia v Moore, U.S. S.Ct. No. 06-1082, 4/23/08.

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In a recent unpublished opinion, the Court of Appeals held that the arrest of a man in a domestic assault dispute did not violate his Fourth Amendment rights when two independent witnesses and the wife herself
told police that he had been to the house. The Court held that, even though the wife later recanted her original statement to police, at the time of the arrest, the police were entitled to qualified or good faith immunity because their conduct did not violate a clearly established constitutional right of which a reasonable person would have known. Turner v City of Grand Rapids, et al, Unpublished COA No. 276943, 7/15/08.