Author(s): Jami E. Leach, Matthew LaBeau

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.

BREAKING NEWS

The Michigan Supreme Court has issued an opinion holding that the 2″ rule in MCL 691.1402a(2) applies only to sidewalks adjacent to COUNTY highways. The ruling was unanimous. In his concurring opinion, Justice Young invited the Legislature to “correct” the rule legislatively if the court’s interpretation is deemed too narrow. The case is Robinson v City of Lansing, ___ Mich ___; ___ NW2d ___ (2010), issued April 8, 2010 (Docket No. 138669). A complete copy of the opinion is available at: http://coa.courts.mi.gov/documents/OPINIONS/FINAL /SCT/20100408_S138669_62_robinson-op.pdf FROM THE CO-EDITOR Jami E. Leach There are six statutory exceptions to the broad grant of governmental immunity in Michigan. This is the fifth installment in a series of articles that will provide a summary of each exception. We started with the highway exception – one of the most used and most litigated exceptions. Last year we addressed the “motor vehicle exception”, “public building exception” and the “proprietary function exception”. Today we will briefly address the “medical care exception”. Remember that the exceptions to immunity are very narrowly construed – therefore attention to each word in the statute is imperative. As always, if you have any questions or need some assistance on this or any governmental issue, please feel free to contact one of our ten offices.

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MEDICAL CARE EXCEPTION

MCL 691.1407(4) provides: (4) This act does not grant immunity to a governmental agency or an employee or agent of a governmental agency with respect to providing medical care or treatment to a patient, except medical care or treatment provided to a patient in a hospital owned or operated by the department of community health or a hospital owned or operated by the department of corrections and except care or treatment provided by an uncompensated search and rescue operation medical assistant or tactical operation medical assistant. In enacting hospital exception, to governmental immunity statute, Legislature has chosen to correct inequitable recoveries between persons injured by identical conduct in public and private facilities. Tryc v. Michigan Veterans’ Facility, 545 N.W.2d 642, 451 Mich. 129 (1996).

Clear language of hospital exception to governmental immunity statute states that “hospital” is any facility that offers overnight care and services for observation, diagnosis, and active treatment of individual with medical, surgical, obstetric, chronic, or rehabilitative condition requiring daily direction or supervision of physician, and if facility offers requisite care to one individual, who does not need to be individual bringing suit, facility meets definition. Tryc, supra.

MUNICIPAL LAW UPDATE

by Matthew LaBeau Utility Tractor Used As Shuttle for Festival Falls Within Scope of Motor Vehicle Exception to Government Immunity A utility tractor referred to as a “Gator” was being used as a shuttle to transport festival-goers visiting downtown Sterling Heights, from the parking area to the festival area via public roads that had been closed to public traffic. Plaintiff fell off the tractor and was injured when the driver allegedly turned too sharply. Plaintiff filed suit, alleging that the claim fell under the motor vehicle exception to governmental immunity. Defendant Sterling Heights filed a motion for summary disposition which was denied by the trial court.

The Court of Appeals affirmed. The Gator in this instance was a motor vehicle for purposes of the statutory exception. The court applied the definition of motor vehicle as “an automobile, truck, bus, or similar motor-driven conveyance.” The Gator in this instance was driven and operated in a way identical to that of a car, bus, or truck. Although Defendant pointed out that the top speed of the Gator was 18 miles per hour, was similar in size and appearance to a golf cart, the Court noted that no legal precedent indicates that a vehicle’s top speed, size, appearance or powertrain are of significance when applying the statute. Yousif v. City of Sterling Heights, unpublished per curiam opinion of the Michigan Court of Appeals, dated October 29, 2009 (Docket No. 288302).

Police Officers’ Actions in Fatally Shooting Suspect Were Objectively Reasonable On August 31, 2005, City of Cleveland Police Detectives Habeeb and Kraynik were investigating an armed robbery. The detectives suspected Plaintiff’s decedent McCloud who lived in the vicinity of the robbery and had admitted to committing 10-12 similar robberies in an interview with detectives three months prior. After discovering physical evidence near the scene

suggesting McCloud’s modus operandi, the detectives obtained a search warrant to search the home where McCloud lived with his grandmother and uncle. The detectives entered the home and began conducting a protective sweep of the home. They approached what turned out to be McCloud’s bedroom and the door was closed. The officers barged into the room and spotted McCloud hiding in a closet. McCloud was ordered to come out of the closet and show his hands. After first hesitating, McCloud came out of the closet holding a knife in this right hand with the blade pointing upward. Ignoring their commands to drop the knife, McCloud continued to move quickly toward the detectives. Believing they were threatened with imminent serious bodily harm, the detectives opened fire on McCloud, killing him instantly. The trial court denied defendants’ motion, finding that the suspect was not holding the knife in a threatening manner, he was not “charging” the officers, there was a mattress between the officers and the suspect, and the suspect apparently complied with commands by exiting the closet, and though he did not drop the knife, the court believed there was no evidence indicating he had sufficient time to comply with this directive.

The detectives appealed. The Sixth Circuit Court of Appeals reversed. Plaintiff’s claim of excessive force required a showing that the detectives’ use of deadly force was unreasonable. In denying the motion, the trial court failed to focus on the testimony of the officers indicating that McCloud continued moving toward them with the knife held up while ignoring their commands to drop the knife, and that they believed he was trying to attack them and, at a distance of less than seven feet, posed an imminent threat of serious bodily harm. These facts were not refuted or contradicted by contrary testimony. The trial court improperly gave Plaintiff the benefit of inferences and suppositions that were not supported by the record. The also court focused on immaterial facts, as mentioned above, and the court assumed, without basis, that McCloud did not know the individuals in his bedroom were police officers. The trial court impermissibly substituted its own notions of what might have been or should have been, instead of considering the dangerous and complex world where the detectives were required to make instantaneous decisions. The officers’ split second decision to use deadly force in self defense was objectively reasonable.

Chappell v. City of Cleveland, 585 F.3d 901 (6th Cir.2009). Design Defects and Accumulation of Water On Roadway Are Subject To Governmental Immunity Plaintiff Plunkett was traveling southbound on US-127 in Clare County. The vehicle diagnostic module indicated that Plunkett was traveling 77 miles per hour when she lost control of the vehicle, which then struck a tree on the west side of the highway. At the time and place of the accident, it was raining and the road surface was wet. Plunkett died instantly as a result of her injuries. Plaintiff filed suit against the Michigan Department of Transportation (MDOT) invoking the highway exception to governmental immunity. Plaintiff alleged that the elevation and slope of the roadbed surface was inadequate because resurfacing had altered elevation and slope in a manner that made it more susceptible to wet-weather skidding accidents. Plaintiff also alleged that excessive wear, along with the slope and elevation, caused rainfall to unnaturally collect, pool, and stand on the roadway. Defendant filed a motion for summary disposition claiming improper notice and that Plaintiff’s claim did not fall under the highway exception. The trial court denied the motion.

The Court of Appeals affirmed the court’s ruling that the notice was proper, but reversed the remainder of the decision. Plaintiff’s claim based on the theory the elevation and grading was inadequate was a claim that the design of the roadway was defective. A claim based on the slope and elevation of the roadway is not a claim for lack of repair or maintenance. Instead, the claim is that the Defendant did not adequately allow for water to drain off the roadbed. Furthermore, the Court analogized Plaintiff’s theory based on the unnatural collection of rainfall to prior cases involving the accumulation of ice and snow.

A claim under the highway exception cannot be maintained when the injury is caused by simply slipping on ice, snow, or water. The Plaintiff must show that the injury was caused by the ice, snow, or water, in tandem with a defect in the roadway itself. An example would be a pedestrian tripping on the edge of a defect in the roadway, then slipping on ice. Plunkett v. Department of Transportation, __ Mich.App. __ (2009).