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Volume XXIII, No. 20, July 28, 2011

From the Law Offices of Garan Lucow Miller, P.C.

 

From the Co-Editors

James L. Borin & Simeon R. Orlowski

 

NO PIP, NO TORT, NO CAUSE

THE MICHIGAN COURT OF APPEALS FINDS FOR THE DEFENDANTS IN A COMBINED SLIP AND FALL/PIP CASE

 

CONTRIBUTOR – JOHN W. WHITMAN

 

In Grantham v Jiffy Lube International, Inc (Docket #298673, released 6/30/11), the Court of Appeals, in an unpublished opinion, denied the plaintiff’s claim for no-fault benefits as well as his tort claim when he slipped on oil at the defendant’s facility.

The plaintiff took his car to the defendant’s oil change facility. While he was away from his car and walking to the Defendant’s office to pay for the service, he slipped on oil which was hidden under snow. The Plaintiff claimed no-fault benefits on the basis that his injury arose out of the “maintenance” of his motor vehicle. That claim was presented to his PIP carrier. He also brought a premises liability claim against Jiffy Lube.

Both the Trial Court and the Court of Appeals gave him quick service when they struck both claims.

Citing Thornton v Allstate Ins Co, 425 Mich 623 at 659 (1986), The Court found that “…there is not a causal connection between the plaintiff’s injury and the use of his vehicle as a motor vehicle because the plaintiff’s injury is not directly related to the motor vehicle’s character as a motor vehicle”. The Court found that the plaintiff could not make the connection “…merely because he was walking to pay for GH’s active maintenance of his vehicle, the oil change, when he was injured. The plaintiff’s injury was incidental to the oil change.”

Note that someone else (the Defendant) was actively engaged in the maintenance. Would the result have been different had the plaintiff been changing his own oil?

Not to be daunted, the plaintiff pressed his claim for tort damages against Jiffy Lube. He claimed that the oil, which caused him to slip, was hidden under the snow and was thus not “open and obvious.” After citing the basic rule establishing the absence of a duty in cases of “open and obvious” conditions, the Court noted that “A snow-covered surface presents an open and obvious danger because of the high probability that it may be slippery.” Ververis v Hartfield Lanes, 271 Mich App 61 at 67 (2006). On this basis, the Court of Appeals found that the plaintiff had failed to show that the danger of a slippery condition presented by the oil was different from the slippery condition presented by the snow. In short, the danger of a slippery condition was already open and obvious.

Note that the Court acknowledged that there could be defects which would be hidden under the snow and which would present a danger “…that would not be slippery in nature.” The examples given were sharp objects or “…substantially uneven terrain such as raised edges or cavities in the ground.”

BOTTOM LINE

There is no such thing as maintenance by proxy, giving rise to a PIP claim under MCL 500.3105. In addition, if it lurks beneath the snow and it is not slippery, the plaintiff may get to a jury.

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Roger A. Smith – Chairman of Executive Committee

 

Garan Lucow Miller P.C., is pleased to announce that Roger A. Smith has resumed his position as Chairman of Garan Lucow Miller P.C.’s Executive Committee.

Roger A. Smith is managing shareholder of the Firm’s Troy office. Mr. Smith’s practice area covers a broad spectrum of law, including, Municipal Liability, Insurance Coverage Disputes, Construction and Insurance Defense, Property Claims, Commercial Claims and Catastrophic Claims. Roger A. Smith is a member of the State Bar of Michigan, Oakland County Bar Association, Michigan Defense Trial Counsel, Defense Research institute and the Association of Defense Trial Counsel, and was bestowed by the Michigan Trial Lawyer Association with its Respected Advocate Award in 2003.

Roger A. Smith has been named as one of the “Best Lawyers in America” from 2008 through the present as well as “Super Lawyer” since 2006. Roger is also listed as a preeminent attorney in Martindale-Hubbell with an AV rating.

 

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SAVE THE DATE

 

The 4th Annual Cherry-Roubaix bicycle race, sponsored by Garan Lucow Miller, P.C., will be held from August 12th through the 14th, 2011, on the streets of Traverse City, Michigan and neighboring Leelanau County, and will feature the 2011 State Road Race Championships. There will also be a charity fun ride out Old Mission Peninsula. Please see the event website at www.cherry-roubaix.com for more details.

Please mark your calendars to join us at this exciting event. Garan Lucow Miller will be hosting special VIP viewing areas at each race, please advise Peter Worden, in our Traverse City office at (231) 941-1611 or pworden@garanlucow.com, if you will be available to join in the festivities.

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GLM ANNUAL GOLF OUTING

CLIENT INVITATIONAL

EVENT: Garan Lucow Miller’s Annual Golf Outing

DATE: Tuesday, August 23, 2011

VENUE: Forest Akers West Golf course on the campus of MSU

Banquet dinner to be on campus at the University Club

RSVP to Eileen Carty at ecarty@garanlucow.com by August 4, 2011.

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BASICS OF NO-FAULT

Jim Borin will be teaching the Fundamentals of No-Fault (PIP) course on Monday evenings from September 12 through November 7, 2011. The classes will be held at the Lexington Hotel, 925 S. Creyts Road, Lansing, Michigan 48192 from 6:00 to 8:30 p.m. Please contact Denise Tedder at dtedder@garanlucow.com to register, or call at (800)875-7600.

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UPCOMING SEMINARS

The Troy Breakfast Seminar will be held on Thursday October 27, 2011 at the Troy Marriott.

Please watch Law Fax for further information.