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March 2013 Edition
From the Law Offices of Garan Lucow Miller, P.C.
From the Co-Editors
John J. Gillooly & Jami E. Leach
While millions of Americans are in the process of completing their tax returns, our legal team at Garan Lucow Miller continues to help public entities across the state in their tax battles. If you are facing tax challenges from commercial tax payers in your municipality, we can help. We have an unmatched record of success in preserving or increasing the available tax dollars that your community so desperately needs.
For more information on our tax team, please do not hesitate to call Ebony Duff at 313-446-5543 or John Gillooly at 313-446-5501.
Cases dismissed because notice was not “served” on an appropriate person at the governmental agency
In Sober v. Jackson County Medical Care Facility (Unpublished Court of Appeals, No. 306157, Issued 09-20-12), plaintiff’s claim under the public building exception to governmental immunity failed for lack of proper written notice in accordance with MCL 691.1406. The statute requires an injured person to service notice within 120 days of the occurrence upon specified individuals at the governmental agency. The statute is very specific about the information required to be in the notice and how it must be served. Additionally, the statute is specific with regard to whom the notice may be served upon. In the instant case, although an incident report was prepared shortly after the incident which contained specific information regarding the location where the injury occurred, the cause of the injury and the defect, the Court of Appeals found that this notice was not “served” on an appropriate person at the governmental agency. Therefore, summary disposition was appropriate.
The Michigan Court of Appeals ordered summary disposition in favor of defendant Wayne County in connection with a sewer back-up claim. MCL 691.1419 sets forth a specific notice requirement before an individual may be entitled to compensation for a sewage disposal event. In this case, the court found that the plaintiff did not send the notice letter to the proper entity. Great Northern Insurance Company v. Wayne County (Unpublished Court of Appeals, No. 304741, Issued 09-27-12).
Strict compliance with the notice provision in highway defect case is required and actual prejudice to the governmental entity is not required
In the case of Watts v. City of Flint (Unpublished Court of Appeals, No. 307686, Issued 01-17-13), the court ordered summary disposition in favor of defendant City of Flint in plaintiff’s claims under the highway exception to governmental immunity. In order to assert the highway exception to governmental immunity, a plaintiff must timely notify the governmental defendant of his or her claim. MCL 691.1404 requires that notice be given within 120 days of the injury. The notice shall specify the exact location and nature of the defect, the injury sustained and the names of known witnesses. The statute further requires that the notice be served via certified mail, return receipt requested or personally. In the instant case, plaintiff sent her notice to the city clerk by regular first-class mail. It was undisputed that the notice was received by the city. Nonetheless, the court indicated that strict compliance with the notice provision is required and actual prejudice to the governmental entity is not required. Even though plaintiff “substantially complied” with the notice requirement, she failed to satisfy the specific requisites set for in the provision and the defendant was not required to demonstrate prejudice as a result. Summary disposition was appropriate.
Failure to disclose names of known witnesses in sidewalk defect case results in summary disposition for defendant
In Colflesh v. Village of Lexington (Unpublished Court of Appeals, No. 307727, Issued 02-12-13), the Court of Appeals ordered summary disposition for defendant Village of Lexington in plaintiff’s claim under the highway exception to governmental immunity. Plaintiff suffered injuries when she tripped and fell on a sidewalk in the Village of Lexington. Within one week of the incident she provided an incident report to the Village. In her report plaintiff stated there were people in the vicinity when she fell, but she was not able to identify any witnesses who may have seen her fall. Later, at her deposition, plaintiff testified that her daughter and two teenage grandsons were walking behind her and observed her fall. MCL 691.1404(1) is a statutory notice provision which requires a plaintiff to provide the names of known witnesses within a certain time period. Because plaintiff testified at deposition that her daughter and grandsons saw her fall, but failed to disclose their identities in her notice to the Village, she failed to comply with the requirements of the notice statute. Therefore, summary disposition was appropriate for the defendant.
Hearsay statements were not admissible evidence to establish requisite notice of sidewalk defect
In Parring v. City of Sterling Heights (Unpublished Court of Appeals, No. 305120, Issued 10-16-12), the Michigan Court of Appeals held that summary disposition should have been granted to the City in plaintiff’s defective sidewalk case. The Court of Appeals found that plaintiff did not submit admissible evidence that the City had constructive notice of the alleged defect or that the defect had been present for more than 30 days. Under MCL 691.1403, a governmental agency is liable for injuries or damages caused by defective highways only if the agency knew or in the exercise of reasonable diligence, should have know of the existence of the defect. Knowledge of the defect is presumed when it existed so as to be readily apparent to an ordinarily observant person for a period of 30 days or longer before the injury took place. Plaintiff offered testimony that she had personal knowledge that trees in front of her next-door neighbors home were removed several years before she fell. She stated that an unidentified city worker told her after her fall that the sidewalk was scheduled to be repaired and that another unidentified city worker stated that roots from the removed trees had raised the sidewalk. The court found however, that these hearsay statements were not admissible evidence and therefore she failed to establish the requisite notice.
Dust cloud rising from an unpaved road is not a defect in the physical structure of the road
On February 6, 2013, the Michigan Supreme Court ordered summary disposition in favor of defendant Board of Manistee County Road Commissioners in a case brought by Debra Haggerty as person representative of the Estate of Debra Haggerty-Kraemer. The plaintiff’s decedent was fatally injured when the vehicle she was driving left an unpaved road in Manistee County and hit a tree. The plaintiff alleged that the accident occurred after an oncoming motorist caused a cloud of dust to rise from roadway. The court held that a dust cloud rising from an unpaved road is not a defect in the physical structure of the road bed as required for liability under MCL 691.1402(1). The court further held a plaintiff cannot recover in a claim were the sole proximate cause of the injury is a natural substance that has accumulated over a highway. An accumulation of gravel, whether natural or otherwise, does not implicate the defendant’s duty to maintain the highway in reasonable repair.
The United States Supreme Court unanimously held that when a motion for summary judgment asserting qualified immunity is denied, no appeal is taken, and the case proceeds to trial resulting in an adverse verdict, the propriety of the denial of summary judgment is not an issue for appeal. The question of qualified immunity remained to be resolved at trial and was available for a subsequent appeal, but only on the record recreated at trial, not on the motion record. The court pointed out that the issue should be raised by Rule 50a motion, renewed on a Rule 50b motion and by seeking a new trial under Rule 59. The case is Ortiz v. Jordan, 131 S.Ct. 884 (2011). The moral of the story is that if you are denied qualified immunity on a motion, it will rarely be a good idea to forgo the appeal of right or the potential appeal of right at that time.
Grand Rapids Breakfast Seminar — Thursday, April 18, 2013
The Grand Rapids office of Garan Lucow Miller P.C. is pleased to present its Annual Spring Breakfast Seminar on April 18, 2013 at the Frederik Meijer Gardens and Sculpture Park, located at 1000 East Beltline, NE in Grand Rapids (616) 957-1580. Comprehensive written materials will be distributed to all who attend. After the seminar, feel free to enjoy all of the open indoor and outdoor garden areas as our guest, including the exciting Butterfly Exhibit!
If you are able to attend this complimentary annual event, please register via e-mail to: firstname.lastname@example.org or phone Lynn Beatty at (616) 742-5500 or (800) 494-6312 for reservations. We look forward to seeing you!
8:00 – 8:20 am Registration and Continental Breakfast
8:20 – 8:25 am Welcome and Introduction
David N. Campos, Moderator
8:25- 8:55 am Trial Technology – Using the CSI Factor To Your Advantage
Speaker: John J. Gillooly
8:55 – 9:25 am Premises Liability Update – Recent extension of the Open and Obvious Doctrine beyond cases involving premises owners and invitees as well as other updates on how to successfully defend a premises liability claim that a plaintiff calls “negligence” in an effort to avoid Lugo v Ameritech.
Speaker: David A. Couch
9:25 – 9:45 am Update on Catastrophic Claims Cases – Attendant Care Claims Post Douglas v Allstate
Speaker: Tara L. Velting
9:45 – 10:15 am Third-Party Auto Threshold & Renewed Importance of Surveillance – Life After “McCormick” Surveillance and “The Pay Off”
Speaker: L. Ladd Culbertson
10:15 – 10:30 am Break
10:30 – 11:00 am Handling Assigned Claims Cases
Speaker: David N. Campos
11:00 – 11:10 am Housekeeping of a Claims File – Discoverability – Strategy for Including Information
Speaker: Timothy M. Swan
11:10 – 11:30 am Returning to Work – Aspects of Labor & Employment Law For Injured Claimants – Statutes & Agreements that Allow Faster Return to Work – Including FMLA and ADA
Speaker: Thomas R. Paxton
11:30 – 12:15 pm Michigan Auto No-Fault Update – Case Law Update – Year in Review and Anticipated Future Case Law Development
Speaker: Emily L. Partridge
12:15 – 12:30 pm Questions and Answers
Deposition and Trial Boot Camp
Garan Lucow Miller, P.C., is offering a traveling Deposition and Trial Boot Camp. The Deposition/Trial Boot Camp would be presented to a group of 10 or more in your office, two half day sessions. If you are interested in scheduling this informative in-house seminar, please contact Eileen Carty at email@example.com or (248) 641-7600.
In-House Municipal Seminars
Would your community like a personally tailored seminar on those legal issues that we face every day? At not cost!! Our team travels the state each and every month delivering information packed seminars to local leaders that draw rave reviews!! Call us today and let us know how we can help make you a more effective and efficient leader!!
Garan Lucow Miller, P.C. has ten offices throughout the State of Michigan and in Indiana to serve all of your municipal needs:
Genesee County Office 1-800-875-3700
Grand Traverse Office 1-888-923-1611
Indiana Office 1-877-804-2801
Ingham County Office 1-888-910-0300
Kent County Office 1-800-494-6312
Oakland County Office 1-800-875-7600
St. Clair County Office 1-800-875-4400
Washtenaw County Office 1-800-878-5600
Wayne County Office 1-800-875-1530
Upper Peninsula Office 1-888-841-7772
*Please visit our website for more information regarding our offices, attorneys, practice areas and other helpful publications at www.garanlucow.com
We are happy to answer any questions you may have and provide any further information that might assist your municipal leaders or attorneys. Feel free to call us directly at 313.446.5501 (John Gillooly) or 313.446.5538 (Jami Leach). To add or remove a name from this email list, please write to firstname.lastname@example.org