TOV Injury and Safety Blog

Time 2021-01-08 10:03:46

Web Name: TOV Injury and Safety Blog

WebSite: http://thompsononeillaw.typepad.com

ID:160498

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Injury,TOV,and,

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In Rocheleau v. Elder Living Construction, LLC, the plaintiff sought to hold the defendants accountable for disseminating a screening report that cost him his job. The Plaintiff had applied for a job; his screening report from First Advantage disclosed prior criminal convictions, which were then disclosed to his current employer and he was fired. He argued that the dissemination of the report violated his rights under the Fair Credit Reporting Act. The Court held that since he did not file his lawsuit within two years of learning of the disclosure, his claim was time-barred. The Estate of John Anthony Sdao sued Makki Abdallah Investments and others, arguing that the consumption of synthetic marijuana had poisoned the decedent and resulted in his death by suicide. They presented an expert in forensic psychiatry to support their claim; he testified that small amounts of psychoactive drug can drastically impact behavior. The defendant SARA Corporation argued that consumption of the drug was not causally related to Sdao s suicide and presented the testimony of forensic pathologist Warren Spitz in support of it s defense. The trial judge summarily dismissed the family s negligence and warranty claims, but allowed it s consumer protection claim to go to the jury. The jury held that the company had violated Michigan s Consumer Protection Act, but that it didn t cause Sdao s death. The family appealed.The high court affirmed the jury verdict. Two of the three appellate judges rejected the family s argument that the judge should not have granted summary disposition on the negligence theories. They held that the Corporation could not reasonably have foreseen that its product could increase the risk of suicide. The appeals court also rejected the family s argument that the jury should not have heard the voir dire questions directed to the expert s qualifications. The higher court pointed out that since Spitz was ultimately allowed to offer his opinion testimony, his answers to the voir dire questioning were relevant to the weight to be given to his opinions. One judge disagreed with the lower court s decision to summarily dismiss the negligence theories, pointing out that the ultimate decision about legal causation is usually a fact question for jurors to decide. Nevertheless, since the jurors ultimately concluded that violation of the CPA did not cause the death, it appeared to be a moot question whether negligence caused it. United States constitutional law clearly authorizes a citizen to walk away from law enforcement if there is no grounds to arrest the individual. Jay Bradley Morris was charged with violation of a Michigan statute prohibiting certain activities, after he was arrested at a gas station. Bradley had a history of mental illness, was intoxicated, and had not been keeping up with his prescribed medications. When police were allegedly told of a potentially suicidal, armed man at a gas station, they responded with guns drawn. When the officers realized that Bradley apparently had no weapon, they seized his arms to search his clothing. He broke their grip and did not voluntarily go to the ground. They took him down. The officers also alleged that he failed to put his arms in position to be handcuffed, so they were forced to tousle him into cuffs.Morris s attorneys argued that his non-compliance did not rise to the level of an actionable felony, and that the Michigan statute under which he was charged is so over-broad that it is unconstitutional. The man s attorneys argued that the statutory language making it a felony to knowing[ly] fail...to comply with a lawful command... was constitutionally overly broad and not enforceable. The Court of Appeals judges, Murray, Boonstra and Kirsten Kelly, three of the Court s most conservative members, held that since Morris refused to comply with commands, quite probably was uncooperative, since he tightened his body rather than cooperating, and pulled his arm away from them, he had, therefore, committed a felony by some level of physical struggling. In the Allegan Circuit Court action involving the Estate of Franklin Denison and Palm Beach Polo Holdings, the Court of Appeals affirmed a judgment that the Defendant was guilty of unjust enrichment in its management of a rented marina. The Court also reversed the trial judge s decision not to allow fees and costs to the prevailing party. State Farm was sued by Michigan Head Spine Institute after it provided more than $25,000.00 in care to a State Farm insured, Ashford Garley. Garley had previously sued for PIP benefits in his own right. A jury concluded that he had suffered an accident-related injury, but also held that no medical expenses were owed. The MH S records had been submitted in Garley s case, but the bills had not. The trial judge concluded that Garley and MH S were in privity such that it and Garley were obligated to join all of their claims in a single action--and that as a result the provider was bound by the verdict in Garley s case. The higher court affirmed the trial judge and dismissed the provider s lawsuit. Since the provider had standing to intervene in Garley s lawsuit but did not, it could not claim prejudice resulting from the fact that it s rights were foreclosed in an action where it had not been a party. Pansy Reid was hurt in a car accident. She was driving a car owned by her son-in-law, with whom she lived. He had insured the car with an insurer that was now defunct, and whose contracts had been taken over by Michigan Property Casualty Company two years earlier. The insurer argued that Reid s son-in-law s failure to list her as a potential resident driver on the original application was a material misrepresentation that would allow it to void the coverage that he had purchased. The trial judge agreed and granted summary disposition.The Court of Appeals reversed and reinstated the case, noting that dismissal was premature. The appellate judges pointed out that the insurer had not demonstrated that the alleged miscommunication was of such a nature that it substantially increased the risk of loss, bringing about a probability that the insurer would not have accepted the risk--or would have increased the premium. The materiality of the omitted information remained a question of fact under the proofs presented to-date. When John Kosinski fell and fractured his ankle on his way to his car in the morning, he attempted to pursue a claim against his landlord and the snow removal contractor for negligence. He argued that the landlord and the contractor had not adequately removed snow from the sidewalk and had allowed it to be piled where it melted on to the sidewalk, creating a black ice hazard. He argued that because the lighting was inadequate, he didn t see the ice in time to avoid the danger.The Court of Appeals noted recent precedent of the Michigan Supreme Court s majority which applied to Kosinski s claim. It held that since he was aware, generally, of the nature of Michigan winter weather, the presence of black ice was an open and obvious danger which the landlord owed no duty to address. The Court also held that since the fall was caused by a condition on the premises, Kosinski couldn t argue that the contractor didn t act with reasonable care, and that in any event, the contractor owed him no duty because the contractor s only duty was to the landlord. In Moran v. City of Kalamazoo, the plaintiff alleged that he was denied a requested transfer to the bomb squad, and later a deserved promotion to sergeant, because of his race. The trial court dismissed his claims on summary judgment. On review, the Court of Appeals noted that the history of Department promotions did not support Moran s claim of discrimination and that he failed to show that he was more qualified than the individual ultimately promoted. As for the bomb squad: he was not chosen...because he performed poorly on the bomb-suit portion of the test. A variation on the all dressed up and no place to go idea. Duma v. Carson City Hospital involved Marcia Duma s attempt to seek compensation from her former employer after she was fired during a down-sizing. A 10-year ER nurse, Duma was accused of stealing pain medicines and falsifying records. She adamantly denied the claim and was incensed when management used the occasion to inform staff that there were mounds of evidence of her guilt and that she did not deny the claim or defend herself. She filed suit alleging defamation, invasion of privacy and intentional interference with a business relationship. The local trial judge dismissed all her claims, holding that the statements by management were privileged. The Court of Appeals upheld the dismissal of part of Duma s lawsuit, but reinstated two theories. The Appeals judges held that since she could only identify 19 people who had been told the false account of her firing, the audience who heard the false light invasion of privacy was too small to support that theory. The Court held that if she is to pursue her claim of wrongful interference, she will need to document her efforts to achieve employment after the defamatory statements, and the causative impact of the Defendant s interference with her ability to find nursing work.With regard to the defamation claim, the Court affirmed the dismissal as to two management employees, who hadn t defamed her broadly enough, but reinstated the claim as to one manager and the Hospital. Since the statements were made in the course of the defendant s duties with the hospital, the hospital would be vicariously liable for any wrongful conduct. And since the statements were made by the Defendant manager to improve morale or to stop rumors, they were made for the Hospital s own business purpose and not privileged. Since the statements were shared with non-management employees who had no need to know, the law of defamation applied to make them potentially actionable. 63 year old Cecilia Peace was hit by a car while on her bicycle. She didn t drive, and the driver that hit her didn t have insurance, so her PIP and fault claims both involved her son s insurance company, State Farm. She and her doctors described various objectively manifested ailments around her spine and displacement of a medial meniscus. She testified that together, the pain from these problems significantly interfered with her management of her household, her normal recreational activities and her use of her bike for transportation. She was pretty much back to normal after three months, however, and the trial judge granted summary disposition, holding that she did not meet the serious impairment of bodily function threshold as a matter of law. The Court of Appeals reversed and reinstated her case, ruling that she proved sufficient impact on her lifestyle to create a question for the jury. The trial judge had also ruled that she could not collect PIP benefits for unpaid medical expenses because she had originally testified that all of her bills were paid by health insurance. Her attorneys had attempted to show that her testimony was simply wrong: that she was unaware of an outstanding billing from the hospital. The trial judge ruled that she could not raise any PIP medical expenses because she had not billed the insurer for them pre-suit, and that in any event, she couldn t contradict her sworn testimony of full payment. The Court of Appeals judges noted that there is no statutory requirement of pre-suit notice or billing, and that this issue is only germane to the question of whether interest or fees are payable on overdue PIP benefits. It also noted that the precedent cited by the insurance attorneys related to contradicting prior testimony applies only to a change in the insured s testimony--not to an error that can be documented and corroborated by third-party records. Since the hospital billings and EOBs from the health insurer confirmed that the insured s initial deposition testimony was incorrect, she was not bound by that error.

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