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Are You Prepared to Become Unmarried?

February 16, 2015 / in

As Valentine’s Day approaches, our thoughts turn to expressing our love to those who are important in our lives.  Husbands are scrambling to find a card and flowers; boyfriends are making dinner reservations and buying chocolates.  Wives and girlfriends may be doing the same, but are excited to see just how their significant others are going to recognize and acknowledge their feelings.  People invest a lot of time, care and preparation into falling in love and planning a life together.  Read More→

 

Michigan’s New Two-Inch Rule Related to Sidewalk Defects
and Trip and Falls

June 28, 2012 / in Written by Mike Salhaney

Municipalities can breathe a sigh of relief from trip and fall claims and lawsuits now that the Michigan Legislature has brought the “two-inch rule” back to life. The rule gives local units of government the ability to rely upon a presumption that a sidewalk is in a reasonable state of repair if a defect in the sidewalk causing the injury is less than two inches in size.

The “two inch rule,” as it is known, existed in Michigan as merely a rebuttable inference under the statute related to defective public highways.   Municipalities were able to use this statutory inference in lawsuits filed against them related to defective sidewalks that were adjacent to any highway.  That is, until April of 2010 when the Michigan Supreme Court issued its ruling in Robinson v City of Lansing that the statutory inference of reasonable repair applied only to those sidewalks that were adjacent to county highways, not state or local public roads.

The decision in Robinson forced municipalities dealing with claims concerning sidewalks adjacent to non-county highways (i.e. city-owned streets) to spend precious governmental funds to litigate the question of whether the sidewalk was in “reasonable repair” without the benefit of any inference.  Cities were finding themselves without any protection and having to litigate claims from a plaintiff who tripped on a sidewalk heave of an eighth of an inch.

With the legislative action, the “two-inch rule” is back, and stronger than the previous statutory language.  Effective March 13, 2012, the legislature amended the Governmental Tort Liability Act, strengthening the statutory inference by changing it to a much stronger statutory presumption.  This change to a presumption now requires plaintiffs/claimants to carry the burden of proof to avoid governmental immunity. It has also been broadened to include sidewalks adjacent to municipal and state highways in addition to county highways.  A plaintiff/claimant must now prove that the defect in the sidewalk has a vertical defect greater than 2 inches in height. If not, then the sidewalk is presumed to be in reasonable repair, and no liability.

Not only does the amended statute presume a sidewalk to be in reasonable repair, even if it has a defect less than two inches, but it also provides clarity to the issue of how you measure the defect.  For instance, many plaintiffs would measure the defect horizontally (i.e., horizontal pot-hole width), yet the actual vertical discontinuity would only be half an inch.  The statute states, in pertinent part:

In a civil action, a municipal corporation that has a duty to maintain a sidewalk under subsection (1) is presumed to have maintained the sidewalk in reasonable repair. This presumption may only be rebutted by evidence of facts showing that a proximate cause of the injury was 1 or both of the following:

  • (a)  A vertical discontinuity defect of 2 inches or more in the sidewalk.
  • (b)   A dangerous condition in the sidewalk itself or a particular character other than solely a vertical discontinuity.

MCL §691.1402a(3)

This language means the presumption may only be rebutted by evidence showing that an injury was caused by a vertical discontinuity of at least two inches or by a particularly dangerous condition existing in the sidewalk. The question of whether or not the plaintiff has rebutted the presumption is now a question of law for the court to decide, not a question of fact for the jury.

 

Michigan Supreme Court “Trips-Up” 2-Inch City Sidewalk Rule

March 23, 2012 / in

When someone sues a city or village claiming that they tripped and fell on a defective section of sidewalk, cities and villages have been able to defend themselves by demonstrating that the alleged defect was less than 2 inches in height, depth and/or width.

The Governmental Tort Liability Act contains language that it is a rebuttable inference that a sidewalk is in reasonable repair if the alleged defect is under that 2 inch mark. M.C.L.A. §691.1402a.

But all of that changed on April 8th when the Michigan Supreme Court ruled the 2-inch rule only applies to sidewalks adjacent to county highways, NOT sidewalks adjacent to city or village owned sidewalks!

What does this mean for your municipality? It means that your budget will be hit with either greater costs to inspect, maintain and repair your sidewalks, or increased legal costs to defend and/or resolve sidewalk litigation cases. Municipalities are at a greater risk of being sued if someone trips and falls on a sidewalk that is not adjacent to a county highway. If the city or village owns the highway and sidewalk, they are no longer protected by the 2-inch rule.

For a copy of the Court’s opinion as well as a strategic plan on what this ruling means for your municipality, including what to do next, please feel free to call the Municipal Law group at Beier Howlett, P.C. (248) 645-9400, or email msalhaney@bhlaw.us.com.

 

School Law

March 23, 2012 / in Written by Mike Salhaney

Off the Deep End: Think Before Donating Use of Your School Pool

Pool facilities within our local high schools are often used to benefit the surrounding communities, yet educators should be aware of potential pitfalls associated with loaning out their waters.

In a recent unpublished Michigan Court of Appeals case (Ryan v. Lamphere Pub. Sch. Sys., Unpublished Opinion, NO.: 286741, March 16, 2010), the issue of a school district’s governmental immunity was challenged when a Special Olympics swimmer drowned in a middle school pool during a practice session. Also under review was the trial courts determination that the teachers who donated their time to coaching the Special Olympics swim team and the volunteer student life guard were also protected by governmental immunity.

The family of the victim claimed that neither the school district, the two teachers who volunteered to coach the swim team, nor the volunteer student lifeguard had governmental immunity, asserting a gross negligence claim against the defendants. The family contended the loaning out of a public school’s swimming facilities to a private entity like the Special Olympics goes beyond the normal operation of a public school district. They argued that the Special Olympics practice sessions held on school premises were not part of the school’s curriculum, and thus were not sufficiently related to the educational mission of the school to rise to the level of a governmental function.

The family of the victim also argued that the two teachers who volunteered their time to also coach the Special Olympics swimming team and the student who volunteered to be the life guard were serving “two masters” (the school district and the Special Olympics – a private organization).

The trial court ruled in favor of the school system and individual defendants on the basis of governmental immunity. It concluded that although the Special Olympics swimming practice sessions were not part of the school’s regular curriculum, the school was engaged in the exercise of a governmental function when it loaned out its facilities to the Special Olympics. As a result, the school was immune from liability as a matter of law with respect to any negligence claims arising from the Special Olympics swimming practice sessions.

As to the individual defendants, the trial court ruled they were acting as volunteers of the school district, and likewise protected by governmental immunity.

The Michigan Court of Appeals affirmed the trial court’s decision that the school district was acting within its authority in loaning out its facilities to the Special Olympics, and that the district was engaged in a governmental function. As such, the school district was protected by immunity. However, the Michigan Court of Appeals reversed the trial court’s order related to the teachers and student lifeguard. A key factor in overturning the decision was the determination of the individual defendants’ employment status. Whether they were in fact an “employee of a governmental agency” or a “volunteer acting on behalf of a governmental agency” determined the applicability of the immunity protection.

While two defendants were school employees supervising the practice sessions on school property during normal school hours, and one defendant was a volunteer lifeguard for the school, there were genuine issues of material fact whether they were simultaneously serving as agents of the Special Olympics at the time of the student’s drowning. Under existing law, dual agents are not entitled to governmental immunity from tort liability. The case was affirmed in part, reversed in part, and remanded.

To fully understand and protect your school system from potential liability, it is important to consult an attorney about the use of your pool facilities by the community. Beier Howlett Municipal and School Law Practice attorneys are available for consultation. please feel free to call the Municipal Law group at Beier Howlett, P.C. (248) 645-9400, or email msalhaney@bhlaw.us.com.

 

Ban On Texting While Driving: Police departments and
communities struggle with training and enforcement

April 30, 2012 / in Written by Mike Salhaney

On April 30th, Governor Granholm signed into law a ban on texting while driving, making Michigan the 23rd state to enact such a ban. Michigan police have until July 1, 2010, when the law takes effect, to interpret the implications of the new law and train officers in the enforcement of it. Beier Howlett can help.

Although the ban may seem clear-cut at first glance, there will be ambiguity as to what “texting” really means under the law. The statute states: “A person shall not read, manually type, or send a text message on a wireless 2-way communication device in the person’s hand or in the person’s lap…while operating a motor vehicle that is moving on a highway or street in this state”.

Under the statue, the police have the right to stop a motorist and write them a ticket for texting while driving as a primary offense. In other words, texting alone is cause enough to be pulled over; no other offense need be committed. A conviction for a first offense is a civil infraction and carries a penalty of $100 and no points on the driving record. A second conviction results in a civil infraction carrying a penalty of $200.

The statute has a series of exceptions included to allow a motorist to send a text message to report an accident, medical emergency or serious road hazard. A driver can also send a text message to report a situation where they believe their safety is in jeopardy or to report the perpetration of a crime.

But what about email? What about surfing the Web on your cell phone? Are these acts considered “texting”? There is also a question about whether or not the person is texting in a motor vehicle that is actually “moving.” Can a driver send or read a text message while stopped at a red light? What if the communication device is mounted on the dashboard or console?

The answers to these questions will be resolved on a case-by-case basis as local and state police departments begin to enforce the ban. But that does not make the implementation and enforcement of the ban easy for law enforcement and prosecutors (or for defense counsel and the court).

Police departments will have to create policy considerations on the implementation and enforcement of this ban. Officers will need to be trained in what to look for, and what evidence to pay attention to. Officers will need to learn to let the facts develop to a certain point, so as to eliminate some of the ambiguities of the statute.

Beier Howlett can help your department with such training. We are prepared to explain the statute and train your officers at an in-house training for command officers and patrol officers. For further information or to schedule a training session for your department, contact the Municipal Practice Group at

Beier Howlett, P.C.         (248) 645-9400