Notice should be as exact as possible.. doing your best is not good enough.

Holding that the trial court erred by denying the defendant's motion for summary disposition on the grounds that plaintiff's claims were barred by governmental immunity, the court reversed and remanded for entry of an order granting defendant's motion for summary disposition. Plaintiff was involved in a single-vehicle motorcycle accident while travelling southbound on Southfield Road, somewhere within approximately ¼ mile of Ford Road. Within 15 days of the accident, plaintiff's counsel sent a letter to defendant that described the location of his accident as "at on [sic] the Service Drive for Southbound Southfield Freeway at Ford Road in the City of Dearborn, MI[,]" and described the nature of the defect that caused his accident as "defective roadway" and "defective pavement." Seven months after the accident, plaintiff filed this lawsuit in the Court of Claims, alleging that defendant's negligence caused his injuries. Defendant moved for summary disposition pursuant on the ground that plaintiff's claims were barred by governmental immunity, specifically arguing that plaintiff did not provide defendant with the statutorily required notice contained within MCL 691.1404(1). The trial court disagreed. At issue was the "highway exception." Michigan statutory law provides that an injured person must timely notify the governmental agency having jurisdiction over the roadway of the occurrence of the injury, the injury sustained, the "exact location and nature" of the defect, and the names of known witnesses. Plaintiff argued that his description of the location of the roadside defect was adequate, because he described the road he was on, the direction he was heading, and the closest cross street. Plaintiff also argued that he provided the best possible notice under the circumstances, because he was seriously injured in the accident and taken away by ambulance. He similarly argued that his description of the nature of the defect as "defective pavement" was sufficient, because it indicated that the pavement itself caused the injury rather than a foreign object, and because it was the best description he could make under the circumstances. The court held that both plaintiff's description of the location of the defect and his description of the nature of the defect were vague and imprecise. The area in question was a stretch of highway approximately ¼ mile long, yet plaintiff did not provide reference to any landmarks that might have assisted defendant in narrowing down the area, nor did he attach the accident report, photographs, or other descriptive material that would have provided a more exact location. Neither plaintiff's description of the defect as both "defective pavement" and "defective roadway," nor the vague description of the location as the service drive near a particular road - an area of roadway that is approximately ¼ mile long - provided the notice required by the statute. Though the court and the Supreme Court have upheld the use of the phrase "defective sidewalk" as sufficiently descriptive of the nature of the defect, that was only when "[c]oupled with the specific description of the location, time and nature of injuries" that allowed the notice to comply with the statute. Nothing in the notice provided by plaintiff allows the two descriptions to be read together in a manner to narrow the location of the incident.

Don't risk dismissal .. Notice must be very specific in sidewalk falls

The court held in this case for damages arising from a defective sidewalk, that the description in the notice provided to the defendant-Village was insufficient to place it on notice of the "exact . . . nature of the defect." Since the plaintiffs did not give the defendant the required notice, it was entitled to governmental immunity. Thus, the trial court erred in denying its motion for summary disposition under MCR 2.116(C)(7). The plaintiff-Lyn Bykonen was walking with her son along a sidewalk when a school bus backed toward them. While trying to protect her son from the bus, she stepped into a crescent-shaped depression in the sidewalk and sprained her ankle. Two weeks later, someone submitted a letter addressed to the "Akron Village Clerk" on the plaintiff's behalf at a council meeting, describing the incident. Plaintiffs later filed suit for damages arising from the defective sidewalk. The trial court denied the Village's motion for summary disposition, holding that there was a question of fact as to whether the notice complied with the notice required under MCL 691.1404. Under the highway exception, a village may be liable for injuries arising from its failure to properly maintain its sidewalks. However, there must be strict compliance with the conditions and restrictions of the statute. One such condition is the notice of injury provision in MCL 691.1404. "As a condition to any recovery for injuries sustained by reason for any defective highway, the injured person . . . shall serve a notice on the governmental agency of the occurrence of the injury and the defect." Further, the notice must "specify the exact location of the defect, the injury sustained, and the names of the witnesses known at the time by the claimant." The court noted that plaintiff arguably described the location and nature of the defect with some specificity, but she did not describe the nature of the defect at all. She merely characterized the sidewalk as "a hazard." Further, there was nothing else within her description of the location of the accident that would clarify the nature of the defect. The description was insufficient to place the Village on notice of the "exact . . . nature of the defect." Thus, the court reversed and remanded for entry of an order granting the defendant's motion for summary disposition.

Leavi9ng car parked in sttreet may be compensable danger

Holding that the trial court did not err in concluding that the vehicle with which the plaintiff collided did not pose an unreasonable risk of the bodily injury that occurred, the court affirmed the trial court's order granting the defendant-insurer summary disposition in this action for PIP benefits. Plaintiff gave a friend a ride home on a borrowed snowmobile. While traveling across a frozen lake, he hit a bump and the snowmobile's headlight assembly fell out of its housing. Plaintiff and his friend looked for the headlight but could not find it in the dark. They continued on without it, and plaintiff dropped his friend off at home before continuing on to his home. As he was travelling on a residential street, plaintiff collided with the rear of a white van partially parked in the southbound lane of the two-lane street. Defendant insured the owner of the van. Plaintiff alleged that the owner of the van parked it in a manner that posed an unreasonable risk of bodily harm under MCL 500.3106(1)(a). Defendant successfully moved for summary disposition under MCR 2.116(C)(10). The court noted that the Michigan Supreme Court held in Stewart that MCL 600.3106(1)(a) "does not create a rule that whenever a motor vehicle is parked entirely or in part on a traveled portion of a road, the parked vehicle poses an unreasonable risk." Factors "such as the manner, location, and fashion in which a vehicle is parked are material to determining whether the parked vehicle poses an unreasonable risk." Plaintiff noted that under MCL 257.671(1), a vehicle must not be parked "on a limited access highway" except in cases of emergency or mechanical failure. He also cited Hackley for the proposition that a parked vehicle protruding into the traveled portion of a roadway presents an unreasonable risk of injury. "However, the street on which the accident occurred was not a limited access highway. Rather, it was a residential street." Further, Hackley was decided before 11/1/90 and did not constitute binding precedent. "Hackley also does not engage in the analysis required by Stewart." Thus, the court did not find Hackley determinative and instead relied on the Stewart analysis. The "parked van was more than 300 feet from the nearest cross street and impeded only one-half of one lane on a lightly travelled residential road with a speed limit of 25 miles per hour. The accident occurred in the early hours of the morning, unlike the accident in Stewart, but traffic was not as heavy as in Stewart. Similar to Stewart, approaching drivers had ample opportunity to observe the van." This supported a conclusion "that drivers could react to and avoid the hazard it posed either by moving partially into the oncoming lane, if it was clear to do so, or by stopping behind the van until oncoming traffic cleared." Thus, the court held that the trial court did not err in granting defendant summary disposition.

Hurt on job in another state may still be MI worker compensation

Noting that the decisions of the magistrate and the WCAC were based on "the now-erroneous finding that the agency lacked jurisdiction over injuries that took place in Georgia," the court concluded that a remand was warranted to allow the magistrate and WCAC to decide the case under the appropriate legal standard. Thus, the court reversed the WCAC's decision affirming the magistrate's denial of disability benefits and remanded the case for further proceedings. Plaintiff began working for defendant-GM in Michigan in 1977. He experienced pain and numbness in his fingers and palms, received treatment, and worked with restrictions to his upper extremities. He transferred to Georgia in 1997, and his symptoms continued. He had carpal tunnel surgeries in 1999 and 2000. After the surgeries, no jobs with GM were available within his restrictions. Plaintiff received a disability pension, and benefits through Georgia's worker's compensation system. He sought worker's compensation benefits in Michigan, asserting he was disabled by carpal tunnel syndrome, with injury dates of 10/18/95 and 11/30/97. The magistrate found that plaintiff failed to show he was entitled to benefits. The magistrate noted that plaintiff moved to Georgia and established residency there in 1997. "He worked for a year and a half, and aggravated his pre-existing condition. Under MCL 418.301, the date of injury for a condition not caused by a single event is the last day in which the employee was subjected to the condition that resulted in the disability." Thus, the magistrate found that plaintiff did not establish that Michigan had jurisdiction to award benefits since the last day he was subjected to the condition occurred in Georgia. "The magistrate concluded that MCL 418.845 governed jurisdiction for out-of-state injuries," and for plaintiff to receive benefits in Michigan he had to show that he was a Michigan resident. Plaintiff admitted that he was a Georgia resident on the date that he was last subjected to the conditions that led to his disability. He appealed to the WCAC, which concluded that the magistrate did not have jurisdiction to apply § 301(1) to determine whether plaintiff suffered an injury or aggravation in Georgia. The WCAC remanded the case. On remand, the magistrate found that while plaintiff established his carpal tunnel syndrome existed on 10/18/95, he did not show that he had lost wage earning capacity except between 1/23/95 and 4/3/95, when he refused restricted work. The case returned to the WCAC, which affirmed the magistrate, but not for the reasons the magistrate stated. The court held that a factual error and a change in the law required reversal. "In its remand order to the magistrate, the WCAC erred in precluding the magistrate from considering the November 1997 injury date that Coleman pleaded. And the change in case law regarding out of state injuries exacerbates this error." Plaintiff's injury "took place well before Karaczewski was decided." In Bezeau, the Michigan Supreme Court reversed the part of Karaczewski that gave the decision retroactive effect.

Skip child support pmnt? Charged with crime.

The court held that the trial court properly found plaintiff-Klamka in criminal contempt after he stopped payment on child support checks made payable to defendant-Morton. He argued, inter alia, that neither he nor his attorney was aware that the trial court was conducting a criminal contempt proceeding until near the conclusion of the hearing. Thus, convicting him of criminal contempt was a violation of his due process rights. He also argued that because the only sanction sought by defendant for his actions was remedial, the trial court abused its discretion by finding him in criminal contempt. The court held that neither issue had any merit. "Criminal contempt differs from civil contempt in that the sanctions are punitive rather than remedial." Further, a party accused of criminal contempt must "be informed of the nature of the charge against him or her and . . . be given adequate opportunity to prepare a defense[.]" Defendant brought her motion for an order to find plaintiff in contempt under MCR 3.606(A), which refers to "punishment" and allows for a "bench warrant" to be issued. These imply criminal contempt. "The sanctions sought by defendant were not merely remedial, but were also punitive" where she moved for "substantial sanctions" in her motion and not just the remedial sanction of receiving the money owed. Also, shortly after the show cause hearing began, plaintiff's counsel argued that plaintiff could not be held in criminal contempt because he acted on the advice of counsel. Thus, he appeared prepared for a criminal contempt hearing. Also, before plaintiff testified, his counsel directly inquired of the trial court whether the proceedings were criminal, and at that time plaintiff was informed by the trial court that it considered the contempt proceedings to be criminal. Thus, the court concluded that plaintiff had adequate notice of the proceedings against him and there was no plain error affecting his substantial rights. Affirmed.

A witnesses version of events is important in police brutality cases

Holding that it did not have jurisdiction to decide the issue of qualified immunity as to plaintiff's § 1983 excessive force claim because the defendants-officers based their claim for immunity on disputed factual findings, the court dismissed the defendants' appeal as to qualified immunity. However, the court affirmed the district court's decision denying summary judgment on defendants' claim of governmental immunity as to plaintiff's claims of assault and battery and gross negligence. Plaintiff was arrested for resisting and opposing a police officer and failing to obey the lawful commands of a police officer. The charges against him were later dropped, and he sued the defendants. He asserted that the court did not have jurisdiction to decide the issue of qualified immunity as to his § 1983 excessive force claim because defendants based their claim for immunity on disputed factual findings. The court agreed. While defendants contended that they based their claim for immunity on issues of law, a review of the record on appeal clearly revealed that they were relying on disputed issues of fact. They argued that they were entitled to summary judgment because no reasonable jury could conclude that they used excessive force against plaintiff. They contended that plaintiff "physically prevented [them] from arresting him" and "physically prevented officers from searching him," while also "[making] repeated furtive movements with his hands . . . actively resist[ing] through the entire encounter." Defendants maintained that, based on plaintiff's behavior, they "used only the amount of force necessary to subdue and handcuff him." They asserted that "until Plaintiff was handcuffed and stopped resisting, they clearly had a reason to be fearful." They also argued that the use of the taser was not excessive under the circumstances. Defendants stated "[i]n direct response to Plaintiff's physical resistance and his complete refusal to comply with officers' orders and demands, Officer Krakowski resorted to a higher degree of force." While both plaintiff and defendants acknowledged that plaintiff initially ran, defendants failed to take into account the rest of the facts as stated by plaintiff, such as his non-resistance, and his acquiescence to the officers' commands that he stop. They did not credit plaintiff's statement that he surrendered and voluntarily laid on the ground with his arms extended. In arguing that their conduct was reasonable and their use of force was not excessive, they took "little, if any, account of the evidence offered by" plaintiff. The court has stated that "[m]ere conclusory statements that the officers construe the facts in the light most favorable to the plaintiff cannot confer jurisdiction upon this Court." Defendants failed to construe the evidence in the light most favorable to plaintiff, which indicated that, contrary to their statements, he did not resist arrest and obeyed their commands. Thus, because defendants' arguments as to their claim that they were entitled to qualified immunity were based on contested facts that were relevant to that determination, the court did not have jurisdiction to decide this issue. As to plaintiff's state law claims, the court held that the district court properly concluded that there was a genuine issue of material fact as to whether defendants' actions "were objectively reasonable under the circumstances," and whether their conduct "was so reckless as to demonstrate a substantial lack of concern as to whether an injury resulted."

A lawyer must be careful with time periods in medical malpracrtice cases

The court held that the defendant-doctor was entitled to summary disposition because the plaintiffs filed their second complaint after the expiration of the tolling period triggered by the mailing of their original NOI. Defendant performed a bunion osteotomy on the injured plaintiff on 11/22/06. She alleged that after the surgery, she developed cellulitis in her foot, which required several ER admissions, and that defendant failed to properly diagnose and treat the bunion. Plaintiffs sent defendant a NOI on 8/20/08. They filed their first complaint on 1/20/09. Defendant successfully moved for summary disposition on the basis the NOI was defective. The trial court dismissed the complaint without prejudice on 6/12/09. Plaintiffs sent defendant an amended NOI on 8/17/09 and filed their second complaint on 1/19/10. Defendant unsuccessfully moved for summary disposition on the basis the second complaint was time-barred. Since the first NOI was filed within 182 days of the statute of limitations expiration and no complaint was filed within 2 years of the injury, it triggered the only tolling period allowed under § 2912b. With the filing of their first complaint, the limitations period continued to be tolled. However, the trial court dismissed that complaint without prejudice on 6/12/09. "At the time of that dismissal, 94 days remained in the tolling period triggered by the mailing of the NOI and continued by the filing of the initial complaint." Thus, plaintiffs had until 9/14/09 to refile their case. They filed their second complaint "well after expiration of the tolling period . . . ." The court noted that under Bush, a defective NOI tolls the statute of limitations and a plaintiff may amend the NOI without affecting or limiting that initial tolling. Thus, plaintiffs could have filed both their amended NOI and their second complaint before 9/14/09. They argued that "at the time they mailed the amended NOI, the law governing such amendments and their effect on the statute of limitations was unclear and presented a ‘catch-22.'" They pointed out that they could not both wait the 182-day notice period from the amended NOI and also file before 9/14/09. However, Bush (decided on 7/29/09) "resolved this issue, holding that the tolling ran from the defective NOI, not the corrective amendment." Plaintiffs also cited Zwiers to argue that MCL 600.2301 allowed the trial court to "‘disregard any error or defect in the proceedings if substantial rights are not affected.'" However, the plaintiff in Zwiers mistakenly filed the complaint a day early (before the running of the notice period). Plaintiffs' complaint was filed more than four months after the statute of limitations expired. "Neither Bush nor Zwiers held that MCL 600.2301 could bring a time barred claim within the statute of limitations." Reversed and remanded for entry of judgment for defendant.

Answering summarry disposition by citing the complaint is not enough.

The court held in this case arising from the servicing of and eventual foreclosure on the plaintiff's home, that the trial court properly did not consider the allegations in the plaintiff's verified complaint as equivalent to an affidavit or other evidence submitted in opposition to the defendant's motion for summary disposition. Thus, the court affirmed the trial court's grant of summary disposition to the defendants. Plaintiff contended on appeal that her verified complaint was sufficient, in lieu of an affidavit, to withstand a motion for summary disposition under MCR 2.116(C)(10). The court disagreed where MCR 2.116(G)(4) specifically precludes plaintiff, as the non-moving party, from simply relying on the allegations set forth in her complaint in opposition to defendants' properly supported motion for summary disposition. She could simply not rest solely on the complaint where "affidavits, pleadings, depositions, admissions, or other documentary evidence must be offered to survive summary disposition." The court held that the plaintiff's verification of her complaint did not meet the criteria of MCR 2.119(B)(1). Her complaint did not allege facts solely based on her own personal knowledge, as opposed to those matters stated upon her information and belief, Further, her verification did not specify those matters upon which she could competently testify. As the court observed in Coblentz, "[t]he verified pleadings . . . contain no statements sufficient to satisfy the criteria applicable to affidavits filed in support of a motion." Thus, she failed to meet her burden of establishing a genuine issue of material fact precluding summary disposition. Unlike Baker, plaintiff failed to submit any affidavit at all in opposition to defendants' motion. She could not "rest on the mere allegations" of her complaint in lieu of submitting any affidavit at all.

Comply with discovery orders or risk dismissal.

The court held that the trial court's decision to dismiss the plaintiffs' case was not outside the range of principled outcomes. The trial court had already imposed the lesser sanction of striking four of plaintiffs' witnesses, defendants had filed two motions to compel and two motions to dismiss, plaintiffs were given numerous chances to comply with their discovery obligations, and they were warned months earlier that the trial court was ready to dismiss the medical malpractice/wrongful death case. They continued to ignore the discovery order. Plaintiffs' complaint alleged medical malpractice in the prenatal care and delivery of Riley Shane Rhoades, who suffered from numerous health problems when born and died from injuries and ensuing complications sustained during labor and delivery. Plaintiff filed their lawsuit and a scheduling order was entered on 11/18/08. The deposition of the PR (NC) was scheduled and canceled three times, twice at the request of plaintiffs, before it was completed. Also, defendants had difficulty obtaining answers to interrogatories and requests for production of documents. Further, they had trouble scheduling and completing the depositions of plaintiffs' expert witnesses in a timely manner. The trial court entered two discovery orders after entering the scheduling order. The final discovery order entered on 8/7/09, struck four of plaintiffs' witnesses as a discovery sanction, and mandated new discovery deadlines. Plaintiffs partially complied with the order, but did not produce a videotape of the birth or provide deposition dates for three expert witnesses. Also, they provided dates for one expert's deposition that were after the 11/15/09 deadline. On 10/9/09, the trial court dismissed plaintiffs' case for failure to comply with the 8/7/09 discovery order. The court concluded that plaintiffs plainly violated the discovery order. They did not provide deposition dates for three expert witnesses who were specifically named in the order and they provided a date after the deadline for one expert witness. They also did not produce the videotape of the birth, indicating that it was "missing." The trial court had the authority pursuant to MCR 2. 313(B)(2)(c) to dismiss their case for failure to comply with its discovery order. The court considered the Dean factors and concluded the trial court's dismissal of the plaintiffs' case was proper. Affirmed.

Is there an employer duty to keep a machine safe, it depends.

Holding that no genuine issue of material fact existed as to whether the defendant owed the plaintiff a duty to ensure the press had the proper guards, the court concluded that the trial court properly granted summary disposition in favor of the defendant-Mian in this negligence action. Plaintiff, an underage employee of defendant-Century Tool & Die, severely injured his hands while operating a power press that did not have point of operation guards. Plaintiff sued defendant, alleging that defendant owned the power press and had a duty to ensure that the press had the proper point of operation guards. Later, defendant filed a motion for summary disposition, arguing that he did not own the power press - he had given it to plaintiff's employer, and it was plaintiff's employer's duty, not defendant's, to ensure that the press had the proper point of operation guards. Plaintiff argued that defendant did own the power press, not plaintiff's employer and, as set forth in Ghrist defendant had a duty to ensure proper guards were on the press. Plaintiff claimed genuine issues of material fact existed as to whether defendant was the owner of the press and whether defendant owed plaintiff a duty to provide a safe press. The court agreed with plaintiff that the trial court erred when it improperly resolved a genuine issue of disputed fact by concluding that defendant gave the press to plaintiff's employer. The court held that in light of the evidence presented, including the deposition testimony from several witnesses, reasonable minds could differ on the issue whether defendant owned the press at the time plaintiff sustained his injuries. The trial court may not make findings of fact in deciding a summary disposition motion. However, the error was harmless. Regardless of whether defendant owned the press or had formerly owned the press, defendant did not owe plaintiff a duty to ensure that point of operation guards were in place. Plaintiff's reliance on Ghrist in support of his argument that defendant owed him such a duty was misplaced. If defendant was the owner of the press, he could not be held liable for plaintiff's injuries. In light of plaintiff's employer's duties imposed by MIOSHA, it was not foreseeable to defendant that his press would be used in an unsafe manner rendering it defective. If defendant was the former owner of the press, he could not be held liable for the same reason - no duty was owed to plaintiff. Thus, whether defendant was the owner or former owner of the press, plaintiff failed to establish a genuine issue of fact showing that defendant owed him a duty imposed by law to ensure that the press had the proper point of operation guards. Contrary to plaintiff's claims, the cases of Hart and Smith were inapposite. In short, defendant did not assume a duty to plaintiff as demonstrated by an affirmative action. Like the defendant in Smith, defendant did not voluntarily and actively undertake to assist plaintiff's employer in its obligation to provide a safe place to work for its employees. Affirmed.

Slipp/ Fall statutory v common law duty, burden of proof

The court held that the plaintiff adequately alleged that the defendant, by failing to repair and maintain its leaky gutter, violated statutory duties under MCL 554.139 and MCL 125.471. Although the court agreed with the trial court that the hazard was open and obvious, it reversed and remanded based on an applicable statutory duty. Plaintiff's case arose from a fall that occurred in the parking lot of defendant's premises on 3/23/08, after a storm that resulted in 4 to 6 inches of snow. At the time, her car was parked outside and was uncovered. She went outside to clean off her car. When she walked outside, she saw that both the sidewalk and parking lot were clear of snow, but there was four to six inches of snow on the grass. She went to her car, retrieved her snow brush, and cleaned off the passenger side. As she was walking around the rear of her car, she slipped and fell. She said that a patch of ice caused her fall, and described the ice patch as being two feet wide and two or three feet long. She also said it looked like the ice was running out from under her car, it was black, hard to see in the shadow of the car, and there was snow on it. She further said that she first saw the ice as she stepped on it and she was unable to stop. Plaintiff filed a complaint alleging defendant was negligent in its maintenance of the parking lot, walk ways, and gutters. She claimed that the negligence arose from breaches of statutory and common law duties. As a result of that negligence, she claimed black ice accrued on the parking lot, was not timely removed, and that the black ice caused her to fall and suffer injuries, and "severe shock, fright, and mental anguish." Plaintiff's expert opined that the temperature rose and melted the snow on the roof and if the gutter leaked it would form black ice on the surface below. Defendant moved for summary disposition, which the trial court granted concluding that the icy condition was open and obvious and the alleged gutter leak did not rise to the level of disrepair. The trial court also held that she failed to establish an applicable statutory duty. Plaintiff contended that the condition causing her fall was not open and obvious because it was invisible since it did not have snow on it. The court concluded her argument was not supported by the record. Just because she did not see the ice until she could not avoid it, did not mean that it was not visible on casual inspection. At best, her testimony showed that her failure to see the ice could be attributed to the fact it was behind her vehicle and she came in contact with it immediately after walking from the side of the vehicle. An average Michigan resident would be cautious of encountering slippery conditions. Thus, the condition was open and obvious. Plaintiff also alleged that defendant violated its statutory duties when it failed to fix the leaky gutter. Defendant offered no authority for the notion that it was not statutorily required to maintain the gutters. The court held that the alleged hazard was open and obvious, but plaintiff had adequately alleged defendant, by failing to repair the gutter, violated its statutory duty.

Experts must be careful in how they express their opinion.

Holding that the plaintiffs failed to prove that a genuine issue of material fact existed as to proximate cause because their expert (B) did not opine with a reasonable degree of medical certainty what a dilated eye exam might have shown, the court affirmed the trial court's order granting the defendants summary disposition. The injured plaintiff (Brown) underwent surgery to have a cataract removed from his right eye on 4/6/06. He moved his head during the surgery, which caused a tear in the posterior capsule. Defendants-Burk and Wacksman saw him on 4/7/06 and 4/13/06 - "the medical records indicated no problems from the surgery." When he awoke on 4/14/06, he noticed a loss of vision in his right eye. He contacted defendants, who saw him on an emergency basis and immediately referred him to a specialist. The specialist diagnosed a detached retina, and Brown underwent surgery to reattach his retina. Plaintiffs sued defendants for malpractice and negligence. After B's deposition, two allegations remained - (1) Burk should have told Brown about the tear in the posterior capsule and warned the plaintiffs of the signs and symptoms of retinal detachment, and (2) Burk and Wacksman should have performed a dilated exam on 4/7 or 4/13, respectively, to examine the back of the eye and retina. Defendants successfully moved for summary disposition under MCR 2.116(C)(10). The trial court found that B's opinion was based on speculation and could not support the causation element. Plaintiffs argued on appeal that B's opinions showed that it was more likely than not that had the defendants performed a dilated exam of Brown's right eye, the retinal damage would have been found and his vision loss would have been reduced. The court disagreed, concluding that the statements the plaintiffs relied on were not based on fact, and were "speculation and conjecture" on B's part. B "used language like ‘if' and ‘had' when talking about the dilated exams. He also admitted that he could only speculate about the results of dilated exams, since no such exam had been done." Reviewing B's statement that the plaintiffs argued showed the necessary causation, the court concluded that B said, "had an exam been performed and had that exam revealed retinal damage, then had the proper action been taken, Brown's outcome would have been better." Those statements were speculation. Plaintiffs also argued that Burk's failure to warn them of signs and symptoms of retinal detachment was also a proximate cause of the injuries. The court held that even accepting the standard of care proposed by plaintiffs, they would not be entitled to relief. "Had such a warning been given it would have merely resulted in plaintiff presenting himself to defendants with specific complaints." However, B was unable to testify as to the likely outcome of the resulting retinal exam.

Injury in Medical Malpractice defined

The court held that the trial court erred in finding that the "original injury" for purposes of MCL 600.1629(1) occurred in Wayne County where the deceased plaintiff treated with the defendants-physicians and institutional medical centers and hospitals. Because the original injury occurred in Macomb County where the corporate registered office of a defendant was located, the trial court erred in denying the defendants' motion to change venue. The decedent (M) was diagnosed with a serious heart condition shortly after birth in 1991. From 1991 through 2008, he treated with the defendants in Wayne County. In 5/08, defendant-Farooki prescribed an AED to detect abnormalities in M's heartbeat and to restart his heart after a cardiac event. On 8/11/08 he died during a car accident in Macomb County from "sudden cardiac arrest." His mother, acting as PR of his estate, filed this case against defendants in Wayne County, alleging that they breached their standards of care by failing to include an ICD in M's treatment plan to reduce his risk of sudden cardiac arrest. An ICD would have monitored M's heart rhythms and automatically corrected any detected abnormalities. MCL 600.1629(1) provides the venue guidelines for "action[s] based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death." While the statute does not define "original injury" the court has interpreted the term in medical malpractice cases. In Karpinski the court construed the venue statute and the wrongful death statute to define "original injury." The court explained that in a wrongful death case, the word "injury" in the venue statute "refers to the injury resulting in death, rather than the death itself." The court in that case also noted that "the Legislature intended to make the place where the injury transpires paramount for venue purposes." The issue here was whether the "original injury" in a medical malpractice case "involving a failure to recommend a course of treatment occurs at the time of treatment." In Taha, the court filled that gap, where the case explained that the injury that was the subject of the case "is the corporeal harm that results from the defendant's alleged failure to meet the recognized standard of care." The court concluded that the essential point of Taha was that the location of the alleged breach of the standard of care was not the place of the "original injury." In Dimmitt, the Supreme Court clarified that "a deficient treatment plan is only a potential injury until the plan proves ineffective and itself causes an injury." Thus, Dimmitt instructed that in a malpractice case, the location of an allegedly breached duty of care does not control venue. Rather, for venue purposes, the appropriate focus must remain on the location of plaintiff's injury. Here, M did not experience an actual injury until he suffered a sudden cardiac arrest and died. That was the "original injury," and it occurred in Macomb County. Reversed.

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is the best summary of Dr. Shoemaker's work.

Head injury from fall erases memory of why fell

The court held that the trial court properly entered a judgment in the defendant's favor following a jury trial in this negligence case. Plaintiff, an employee of a nonparty corporation, was working in its shoe department located in defendant's store when she fell from a ladder while changing the configuration of display shelving. Before falling, plaintiff was in the process of removing a bottom base up and over the top of an 84-inch counter while standing on the ladder. She explained that, to lift the base clear from the counter, "you do have to lift it, you know, quite a ways up over your head to get all of it off." The ladder plaintiff was using was owned by defendant, had wheels, handrails, and six steps, including a platform at the top. When the ladder was stepped on, it would stabilize on its legs. However, three of the legs were missing rubber feet. Due to her head injuries, plaintiff was unable to remember what caused her to fall. One eyewitness testified that she saw movement by the ladder and then plaintiff fall. However, she did not know what caused plaintiff to fall and did not know whether plaintiff was already in the process of losing her balance when she saw the ladder movement. Plaintiff sued defendant alleging that the ladder was in a dangerous condition, defendant knew it, and the ladder should not have been available for her use. Defendant filed a notice of non-party fault, naming plaintiff's employer as a possible contributor to plaintiff's damages for failing to provide her with adequate training and equipment. The trial court denied plaintiff's two motions to strike the notice. A four-day jury trial was conducted and concluded with the jury finding that defendant was not negligent. The first question on a special verdict form asking whether defendant was negligent was answered in the negative. Thus, the other questions whether her employer or plaintiff were negligent were not answered. Plaintiff argued that her motion to strike defendant's notice of non-party fault should have been granted because her employer was not a properly named "non-party." However, as defendant argued, this issue was moot. The fault of non-parties is relevant to the issue of damages. Since the jury decided that defendant was not negligent, "the issues of apportionment of fault and damages were never reached or decided." Plaintiff argued in her response brief that the issue was not moot because the trial was "permeated with Defendant's efforts to identify" her employer "as the real at-fault party" and if defendant had been "precluded from doing so, there is more than a reasonable probability that the jury would have reached a different result with respect to [defendant's] negligence." Plaintiff claimed that, in its opening and closing statements and "through numerous witnesses," defendant argued that it was not negligent and that the fault lay with plaintiff's employer. "First, defense counsel's opening statement and closing argument were not evidence and the jury was properly instructed that counsel's comments were not evidence." Second, plaintiff did not direct the court's attention either to defendant's "numerous witnesses" nor any witness testimony that allegedly identified her employer as the "real at-fault party." Further, even if defendant's notice of non-party fault was stricken, defendant would still be entitled to defend against plaintiff's negligence claim by arguing that her employer was the proximate cause of her damages - a mandatory element of her claim was not established. The court rejected plaintiff's argument and held that the issue whether defendant's notice of non-party fault should have been stricken was rendered moot by the jury's finding that defendant was not negligent. Affirmed.

Test for mold exposure is genetic

The biggest takeaway for me from the weekend was one that I had already known, but it is also one that I cannot reinforce enough how strongly I feel about it. In my opinion based on what I have learned from Dr. Shoemaker's work, everyone with Lyme should have their HLA genetic testing done so that they understand if it is Lyme toxins, mold toxins, or both that they are inefficient in identifying and excreting. This information may change the course of your treatment. Additionally, if one is a mold-susceptible type, I think it is critical to have the ERMI testing done to see if your living environment is save. If one has a mold-susceptible type, an ERMI of < 2 is the goal. Anything higher than that is potentially unsafe and negatively impacting your health.

Ignoring the mold issue while treating Lyme disease is, in my opinion, much like trying to keep a boat filling up with water from sinking by using a cup to dump the water overboard when the boat itself has several holes in the bottom. You just can't win unless we evaluate and address all of the factors involved in our ill-health. Mold is often a very critical and overlooked factor.

The law now allows more help when hurt in car crashes.

In light of McCormick, the court vacated the trial court's order granting defendants-Judy Lee Kowalesky and Frank Robert Kowalesky summary disposition in the plaintiff's action for no-fault benefits under MCL 500.3135 and remanded the case. Plaintiff sustained injuries when the vehicle he was driving collided with a vehicle driven by Frank and owned by Judy Lee. Plaintiff suffered a broken left foot in the accident. He sued, alleging that he sustained a serious impairment of body function as a result of the accident. He was off work for 90 days after the accident. His foot was in a cast for three to four weeks, and then in an orthopedic boot. He returned to custodial work without restrictions. "He worked 40 hours per week and was on his feet frequently, performing such tasks as setting up tables and chairs in conference rooms, performing maintenance work on kitchen equipment, installing new heating/air conditioning units, and carrying out woodworking projects. Plaintiff walked with a limp, but did not use a cane. His ankle was stiff and difficult to bend. He had a permanent numb feeling along his arch and toward the front of the bottom of his foot." The pain in his left foot was "always there," and on a scale of 1 to 10, began at 5 or 6 in the morning and went down to about 3 during the day. His treating physician imposed no restrictions on plaintiff's home or recreational activities. However, plaintiff began to develop a flat foot deformity in that the heal bone could not interact with the "posterior tibial tendon" to give arch to the foot. He also developed a "valgus deformity," which means the heal bone is "tipped out" of position and thus, prevented from moving and interacting with other tendons. "Plaintiff began to develop subtalar arthrosis, which is early arthritis caused by the dissolution of cartilage and has a high probability of becoming severe arthritis." Although it concluded that plaintiff suffered an objectively manifested impairment of an important body function, the trial court determined that he did not meet the threshold requirement for establishment of a serious impairment of an important body function set out in Kreiner. While plaintiff's appeal was pending in the court, the Supreme Court overruled Kreiner's interpretation of MCL 500.3135 in McCormick. The trial court's decision was based on case law that has been overruled.

Get a lazy attorney and you may lose because of them.

In this insurance coverage dispute, the court held that the trial court properly granted summary disposition in favor of the defendant-insurer where the plaintiff-insured failed to raise a genuine issue of material fact. Plaintiff had a homeowner's insurance policy with defendant. Plaintiff filed his initial claim following a fire in the attic of his house. Defendant honored this claim as well a later claim for water damage and another for cracks in the foundation caused when plaintiff, in an attempt to conduct repairs, caused further damage to the home. However, when plaintiff filed a claim for cracking on the first floor of the house, defendant denied the claim as a preexisting condition based on the report of its expert. "The expert stated that if the first floor cracks were new, the exterior siding and trim, and the wood sill plate on top of the masonry walls would show damage, distortion, gaps, or lateral movement. He found none of these signs, so he determined that the cracks on the first floor had existed prior to the installation of the siding, and thus also pre-existed plaintiff's insurance policy." Defendant moved for summary disposition arguing, inter alia, that plaintiff failed to state a claim and that the first floor cracks were a pre-existing condition. Plaintiff did not file a response to the motion. "At the hearing on the motion, the trial court declined to allow plaintiff to address the merits of the case, questioning him exclusively on the reasons for his failure to comply with discovery." Plaintiff stated that he had been called to Iraq due to a family emergency, and did not receive notice of the motion until he returned home approximately 10 days before the motion hearing. The trial court described his attitude as "lackadaisical" and found that he had abandoned his arguments by failing to file a responsive brief or to contact the trial court or defendant to request an adjournment, and his failure to comply with discovery. On this basis, the trial court granted defendant's motion. Several days after the ruling from the bench, but before a written order was entered, plaintiff filed a motion for reconsideration to which he attached multiple documents and photographs asserting that they created a question of material fact. The motion for reconsideration also asserted that defense counsel mailed the summary disposition motion with insufficient postage and attached a copy of a post office postage due notice. The trial court's written order granting the motion was entered. That same date, plaintiff filed a belated "Response to Defendant State Farm's Motion for Summary Disposition," which contained many of the same arguments and attachments contained in the motion for reconsideration. Before the trial court ruled on the motion for reconsideration, plaintiff filed a claim of appeal. Although this deprived the trial court of jurisdiction, the trial court, likely unaware that a claim of appeal had been filed, issued an order denying the motion for reconsideration, affirming its conclusion that dismissal was proper based on the failure to respond, and noting that there were no questions of material fact. Given "the confusing nature of the record" as to service of the motion for summary disposition, the court elected to review the summary disposition ruling on the merits and considered the entire record, including the materials submitted by plaintiff in his late-filed brief and in his motion for reconsideration. The court held that "dismissal was proper because plaintiff failed to submit competent evidence creating a question of material fact." He claimed that the photos he submitted in his late brief and in his motion for reconsideration raised a question of fact as to the origin of the cracks on the first floor of his house. However, there was no testimony in the record explaining the import of the photos or authenticating them, and the court concluded that on their face, the photos prove nothing. Further, plaintiff's theory of causation was "anything but clear." While at some points in the record it seemed that he was claiming that the first floor was damaged during his repair attempts, at other points he asserted that the first floor cracks were caused by the house settling after 165,000 gallons spilled by a burst pipe drained away under it. Further, neither of these theories was supported by any competent evidence and rested "solely upon plaintiff's own speculation." Affirmed.

Signing a release of claims as volunteer will stop suit for injury.

The court held that the trial court properly granted the defendant-Northwoods Animal Shelter summary disposition in the plaintiff's slip and fall personal injury case, holding that the "Volunteer Hold Harmless Agreement" was a valid release of liability. The case arose out of a slip and fall that occurred at defendant's animal shelter. Plaintiff was a volunteer worker at the shelter and, prior to her injury, she was required to sign the agreement indicating that she would not be able to bring any legal action for any personal injuries suffered at the shelter. Consideration consisted of plaintiff being given the opportunity to work with the animals at the shelter, in turn, she agreed to hold defendant harmless for any personal injury she sustained while volunteering. Requiring volunteers to sign a hold harmless release does not violate public policy. "It is not contrary to public policy for a party to contract against liability for damages caused by its own ordinary negligence." Plaintiff voluntarily chose to volunteer at the animal shelter. She was not required to do so. The Volunteer Hold Harmless Agreement did not violate public policy. Affirmed.

Legal malpractice

The court held that the trial court erred when it found that defendants-Bess and Seyburn Kahn could invoke the attorney-client privilege because plaintiff-Bernstein alleged facts such that the fraud exception prevented the use of the attorney-client privilege by these defendants in this case. Further, the court held that since it found the crime-fraud exception to the attorney-client privilege applied to communications between appellee-Poss, Bess and Seyburn Kahn, the court did not need to decide whether the attorney-client privilege could be asserted against Bernstein. Poss, a doctor of podiatric medicine, employed Bernstein as a podiatrist. After 10/90, when Poss was convicted of healthcare fraud, which resulted in the suspension of his medical license until 1992, Poss proposed a new business venture to Bernstein. He would be the sole shareholder of a new business where he would provide podiatry services and Poss would provide management and administrative services and they would split the profits equally. Bernstein agreed to the proposal. Poss had a prior relationship with Bess and Seyburn Kahn and recommended that Bernstein retain Bess to incorporate Foot Health Centers (FHC). Bernstein did so. Bess prepared and filed the appropriate paperwork, which resulted in FHC being incorporated on 8/15/91. In 1998, Bess at the direction of Poss, filed articles of incorporation for Foot & Ankle Health Centers, P.C. (FAHC). Later, Bess filed documents to dissolve FHC. Poss was listed as the sole director of FAHC, but Bernstein was named as a shareholder and the vice president. Bernstein claimed that until 6/06, when he began negotiating to end his business relationships with Poss, he believed that he was a 50% shareholder in FAHC. At that time he learned that he was only a 2% shareholder. He then sued Bess and Seyburn Kahn for legal malpractice and breach of fiduciary duty committed during their representation of Bernstein. He alleged that Bess and the law firm assisted Poss in fraudulently converting his 100% interest in FHC into a 2% interest in FAHC. In anticipation of deposing Bess, Bernstein moved the trial court for an order preventing Bess and the law firm from claiming attorney-client privilege. The trial court denied the motion. Plaintiff acknowledged that the privilege belonged to the corporation, but argued that because he was a shareholder and officer of FAHC, the privilege did not prevent disclosure to him and that the crime-fraud exception to the privilege prohibited Bess and the law firm from invoking the privilege. The court rejected the defendants' claim that the exception did not apply because plaintiff failed to plead with particularity the relevant circumstances. The court also held that Fassihi applied where similar to that case, "Bernstein alleged that Bess failed to disclose relevant information about the purpose of FAHC," and "Bess assisted Poss in fraudulently converting Bernstein's interest in the corporation," failed to provide him with stock certificates, financial information, business records, or any other relevant information. Reversed and remanded.

Construction site injury

On remand from the Supreme Court for reconsideration in light of Loweke, the court vacated the trial court's summary dismissal of plaintiff-Frommert's negligence action and remanded. Defendant-Kasco was the general contractor on an urban loft development project. Frommert worked as a laborer for a carpentry subcontractor employed by Kasco. Defendant-Teera served as Kasco's masonry subcontractor. Frommert was injured when he stepped off an aerial lift truck onto scaffolding erected by Teera, in order to retrieve a tile of Styrofoam insulation that had blown away during the course of his work. Teera employees had recently moved the scaffolding from a different location on the perimeter of the building, and had yet to completely stabilize the structure. Frommert stepped onto an unsecured plank, which gave way, and because he was not wearing a safety tether, he fell 20 feet to the ground below. Frommert sued Teera alleging that it acted in a negligent manner by failing to completely stabilize and secure the scaffolding, leaving it in an unsafe condition on the worksite. "While Teera had a contractual obligation to Kasco to maintain proper scaffolding, Frommert's claim was not based on that contractual obligation. Rather, Frommert's claim was based on the common law duty to use reasonable care to avoid endangering other workers or anyone else lawfully on the worksite." "Teera had a preexisting duty to act with reasonable care to avoid harm regardless of its subcontract with Kasco." In light of the Supreme Court's directive following Loweke, the court adopted Judge Gleicher's analysis in Frommert I (concluding that there was a genuine issue of material fact that Teera negligently constructed a scaffold and invited Frommert to use it, and under the circumstances, Teera breached a common-law duty of care). Thus, the court held that the trial court incorrectly concluded that summary disposition was proper under Fultz.

Disabled woman sues over access.

GRAND RAPIDS — Driving around the city, Jocelyn Dettloff can’t help but look at area businesses to see if she could get inside them with her wheelchair.

Even a step at the front door is a barrier.

“How do you expect people who are in chairs to get into your establishment?” Dettloff asked.

She said a lot of business owners probably don’t realize that some people with disabilities, rather than complain, just avoid those shops and stores. As a worker for Disability Advocates of Kent County, the Grand Rapids woman uses every opportunity to educate others on access laws — and the needless struggles some face because of barriers.

But some 20 years after the Americans with Disability Act took effect, she sometimes wonders: “Are you kidding me? They’re still inaccessible?”

She takes it to another level.

The Monroe woman, a mother of two and motivational speaker, has filed dozens of federal lawsuits in several states alleging ADA violations. She has filed six this year in the Western District of Michigan, targeting Baymont Inn & Suites near the Gerald R. Ford International Airport, and the Comfort Inn, Bob Evans and Denny’s in Holland, among others.

Born with spina bifida, Caruso has served on the President’s Committee for the Disabled and was Ms. Wheelchair Michigan in 1987.

Frustrated by accessibility issues, she has taken legal action to get businesses to comply with the ADA.

“Enough is enough,” Caruso said recently. “Everybody deserves to have equal access. If I want to go to a place, why can’t I go to the place?”

She said her goal is to increase accessibility for others. Too many business owners won’t make changes unless they’re called out legally, she said.

Critics say such tactics benefit only the lawyers who file the cases, as they’re typically paid by the defendants as part of the settlement. Businesses can expect to spend at least $5,000 to defend and settle such suits, said attorney Vincent Lynch, whose Florida firm has defended businesses against hundreds of ADA lawsuits.

“The plaintiffs are not entitled to damages, only attorney fees if they prevail,” he said.

Lynch said he has sent letters to those who have sued his clients, suggesting they discuss changes that could resolve their issues. He said he has never received a response.

The ADA was established in 1990. Under the law, facilities built before 1992 needed to have barriers removed that were “readily achievable” and didn’t require “much difficulty or expense,” Lynch said. Facilities built after that had to be “readily accessible” and “usable” to disabled people.

In an online article, Lynch called the ADA “a Pandora’s Box of litigation for small, medium and large businesses. ... Several disabled persons, disability organizations and their attorneys are bringing high-volume ADA litigation that is hurting business in an already difficult economic climate.”

In an interview, he said the law is being abused.

“It’s hurting small businesses struggling to survive,” he said.

But Caruso makes no apologies.

“If they spent one day in my life, I think they would probably understand,” she said. “It’s not about the money. I want it to be accessible for everyone, whether that’s people with walkers, older people, people with strollers. It’s sad. That’s just what it’s come to.”

Caruso said she travels frequently, often alone.

She said issues arise when she can’t reach the air conditioner or heat knob, there is no shower seat, or the shower door swings the wrong way so she can’t get in — even in a room designated for handicapped people. At her boyfriend’s apartment, there are no curb cuts, so she has to wait for him to help her up, she said.

“These are not little things,” she said.

Caruso said she has gotten hate mail over her lawsuits, but others appreciate her efforts. Many others will find access that might not have been there, she said.

“My lawsuits are public record,” Caruso said. “And I feel my results speak for themselves. I feel that my actions are remedies to fix the limited access for people with disabilities.”

In Caruso’s lawsuit against Baymont Inn, her attorney, Owen Dunn, said barriers to access endangered his client’s safety.

He said she acts as a “tester” while visiting businesses and assessing accessibility.

“Jill Caruso desires to visit the hotel not only to avail herself of the goods and services available at the property but to assure herself that his property is in compliance with the ADA so that she and others similarly situated will have full and equal enjoyment of the property without fear of discrimination,” Dunn said.

Caruso has an 18-year-old son, Devan, and a 6-year-old daughter, Mia.

David Bulkowski, executive director of Disability Advocates of Kent County, said most places comply with the law. But even places that comply still present obstacles, he said. For instance, some aren’t designed for the wider scooters that are growing in popularity.

“There’s no such thing as a one-size-fits-all in the disability world,” Bulkowski said.

“There are still issues out there.”

He said his agency tries to work with businesses, and he said many “seek us out before they start construction.” His agency has worked closely with Woodland Mall, for example.

The trouble is, a lot of barriers for the disabled are “literally poured in concrete,” he said.

The lack of a curb cut can stop wheelchair users in their tracks, Bulkowski said. Concrete settles and takes a beating in Michigan winters.

He said it is easy to forget the struggles of the disabled. Bulkowski, who has no disabilities, often reminds himself that “I’m living in a world built for me.”

Dettloff has used a wheelchair for 15 years after a spinal-cord injury at age 26. She said she has had her share of frustrations, but none worse than during a June trip to New York City.

“I was actually stunned that for a touristy city it is — oh my gosh — so many restaurants and pubs and shops, they have a step there to get into them,” she said.

Dettloff said she can see all sides and knows it can be expensive for businesses to make changes.

“A lot of times, businesses aren’t going to do it,” she said. “They say, ‘We don’t get those kinds of people in here.’

“Well, of course you don’t

Detroiters cultivate a sense of community

They use whatever they can -- bicycles, Bibles, even barren land -- to snatch up their slice of Detroit and hold it tight. There are many aspects of the city that they love and certainly, some that they loathe. Still, these families and individuals are doing what they can to survive and maintain a sense of community within some of Detroit's most violent areas.

Lumsie Fisher

Choosing to stay to show a way out of hopelessness

Lumsie Fisher's voice -- naturally deep, but extra raspy from the Newports he smokes -- fills the small basement he converted into a church with a melody.

"This is my story. This is my song. Praising my savior, all the day long."

His congregants -- an 82-year-old great-grandmother, his daughter and a police officer-turned-deacon -- join Fisher in singing the hymn "Blessed Assurance" during a Tuesday night Bible study.

"Perfect submission, perfect delight. Visions of rapture now burst on my sight! Angels descending bring from above, echoes of mercy, whispers of love."

Fisher, 64, lives at the corner of Westbrook and Fullerton in Brightmoor, on the city's west side. Fullerton is unpaved near his home and runs parallel to train tracks. In the last decade, the area has become a dumping ground for trash and bodies. It is one of the deadliest areas in Detroit. "In my lifetime, I've seen them come in and get at least 10 bodies," Fisher said. "A year and a half ago, two bodies were burned right in front of my house."

Fisher could leave the neighborhood, but instead, he has decided to take to the streets preaching the Gospel. He spends his days trying to convince people who are addicted to leave drugs behind and accept Jesus. He often takes in people who are down on their luck. He ministers to prisoners in the Ryan Correctional Facility and tutors children after school.

His church service and Bible study classes are held in the basement of a friend's home because Fisher's house is too small. On this night, his voice competes with the hum of the furnace and the sound of people walking about upstairs.

"As we find ourselves in this basement ... I just thank God," Fisher prays. "I try to remain humble in whatever I do. When God anoints you to do something, can't nobody else do it."

Despite the murders around him, Fisher said he isn't giving up on the city. He often asks the Lord to look down on Detroit Mayor Dave Bing. And he wants to inspire the underclass -- those he sees as mired in hopelessness -- to fight for a brighter future.

"I accept me being here on this corner is divine -- God has a purpose for me being here."

Keith and David Jarrell

Living on the fringe, looking out for the neighborhood

By most standards, Keith and David Jarrell aren't your typical crime-fighting duo -- they ride bikes, use a fire pit in their backyard to stay warm when cash is too tight to pay utilities and admit living on society's fringes, mostly because poverty keeps them there. But when they're needed in their east-side neighborhood, they deliver.

The brothers have lived for 40 years in a run-down house on the corner of Bessemore and Georgia. They're members of The East Side Riders, a custom-bicycle club that gathers for casual rides. They hold workshops for neighborhood kids to show them simple things such as how to change a flat tire, to more difficult tasks such as customizing -- or tricking out -- their bikes. What started as fun has become a crime-fighting tool.

When the bodies of women were being found scattered on the east side inside abandoned houses and lots in the summer of 2009, the brothers rode around, handing out flyers and warning women not to walk alone. On Angels' Night, the eve before Halloween, they've patrolled the neighborhood. They even ride along with children as they walk to and from school.

"We just want to keep it safe where we live," said David Jarrell, 47. "People don't feel safe because there are too many fields and they don't cut them enough."

Solution: The men share a neighborhood tractor to cut grass and weeds in vacant lots.

"I love Detroit -- it's my heart," said Keith Jarrell, 49. "Everybody is not bad around here -- they just aren't in the right position. They think, 'I ain't got nothing else to do but the wrong thing to get places.' Maybe we can change kids' way of thinking."

Unemployed, the brothers survive by doing handy work. The small amount they charge to fix bikes won't pay the bills. Yet Keith Jarrell volunteers for The Hub of Detroit, a nonprofit bicycle reuse and repair shop.

They admit it's hard to remain positive about the city.

"Why are there no jobs here?" David Jarrell asked. "It's just Detroit, but it makes you want to leave when you can't get a job."

The Sparks family

Sticking together and connecting with all

The Sparks family has taken a page from small-town America and transferred it to Detroit's west side.

Three generations of Sparkses live next to one another on a block where everybody knows one another and looks out for the young and old.

The scene is strange for this Brightmoor neighborhood, not so much because they all live in a cluster, but because most of the street is decimated.

"It's kind of like being in the suburbs but in a post-apocalyptic world," said Matt Sparks, 31, who lives with his wife, Marie, and two children in one home. "It's just home to me -- I don't feel as comfortable in other spots. Everybody is laid back. Nobody is judging anybody. We're all just trying to pay our bills and take care of our kids."

The Sparkses, whose homes are on Chapel wedged between Glendale and Fullerton, are proud to call themselves Detroiters. Jack Sparks, 56, the patriarch, has lived in the neighborhood since 1978, when he moved to Detroit with his young bride after a stint in the military. Matt Sparks, his son, settled next to him with his family. Sean Schaefer, who was unofficially adopted by Jack Sparks, lives next to Matt with his wife, Jennifer.

"It's Detroit over here, no question; we had the crime and abandonment," Matt said. "But it's kind of old Detroit -- how neighbors stuck together."

The Sparkses have made the best of the abandonment. Behind their homes are empty lots that they've converted to "Sparks Park," a personal playground with jungle gyms, swings and outdoor furniture that abuts Rouge Park. The family is known throughout the neighborhood for their summer barbecues, gatherings they use to create unity among those left living in the ruins.

"For years, it's been us surviving and doing what we can," Jack Sparks said. "It's not where you live; it's how you make your home."

Schaefer offers a unique perspective: He lived across the street from the Sparks homes before moving to Westland with his mother when he was around 5. But Schaefer often returned to play with his best friend, Matt Sparks. Schaefer, 31, said his biological father was absent, and Jack Sparks, whom he calls "Dad," stepped in.

When another Sparks decided to sell her house and move to another state, Schaefer jumped at the chance to come back home. "Nothing beats living near your family," he said. "It's not perfect, but it's home."

Mark Covington

Planting the seeds for a better future

Mark Covington plays many roles in the east-side neighborhood where he has spent most of life: big brother, cop, teacher, activist, zoo keeper and master gardener.

He's a man who yearns to reclaim the Detroit he remembers as a child.

"I have this vision of rebuilding the neighborhood, and I believe I can do it," said Covington, 39, as he surveys the blocks of land he is transforming just a stone's throw from the Better Made factory on Gratiot.

In December 2007, Covington lost his job as an environmental technician, and he soon found himself needing to move back home to Georgia Street with his mother and grandmother.

Instead of wallowing in pity, he decided, as the snow melted, to keep active by cleaning trash from vacant lots around his neighborhood. That spring, Covington was inspired to plant a few rows of collard greens and tomatoes in a lot, hoping the plants would deter litterers.

Vegetables soon grew from the soil, as did a movement that encouraged youth mentorships and volunteerism. Today, the Georgia Street Community Garden ( www.georgiastreetcc.com and www.georgiastreetgarden.blogspot.com )has grown into a second garden, an orchard, a park and a community center, all under the umbrella of the Georgia Street Community Collective. With the help of donors, Covington purchased a building and rehabbed it into a community center. It is used for holiday meals, coat drives and movie and reading nights. Eventually, a portion will be converted into a library and computer lab for children.

"We might be poor, but we don't have to act poor," he said. "It doesn't take money to clean up around your house. It doesn't take money to do certain things that will show the kids that there is a better lifestyle."

Take a drive down Georgia Street, and you'll hear Cozy the goat singing a tune or dozens of chickens clucking away. Covington keeps the pets for practical reasons -- fresh eggs and goat milk are delicious, he said -- but also to keep young people enthused and engaged.

Covington isn't one of those urban farming enthusiasts who envisions swaths of Detroit being converted to gardens. "I'm not trying to turn the city into a farm. I would rather see houses and businesses," he said. "But I can be part of the solution."

Covington credits the garden with getting neighbors talking to one another again. They come to pick vegetables, ask him to have a chat with a son or daughter who isn't performing academically, or to report possible crimes.

"Before I got out here, I didn't know I was walking past people who had no lights and gas and were struggling to eat," he said. "By just being able to really reach out, I feel like there are people I'm helping that I don't even know."

Supreme Court not always last word.

WASHINGTON (AP) – Nothing about the Supreme Court — not its magnificent building atop Capitol Hill nor its very title — suggests that its word is anything other than final. Yet federal appellate judges and even state court judges sometimes find ways to insist on an outcome the Supreme Court has rejected.

Just last week, the justices rebuked judges on the federal appeals court in San Francisco in the tragic case of a Los Angeles-area grandmother who was convicted of shaking her 7-week-old grandson to death. The appeals court overturned the conviction three times and twice, the justices ordered the appellate judges to try again. The third time around, the justices ended the case, pointedly upholding the conviction.

"Each time, the panel persisted in its course, reinstating its judgment without seriously confronting the significance of the cases called to its attention," the high court said in an unsigned opinion. "Its refusal to do so necessitates this court's action today."

But the nation's court of last resort does not always get the last word.

The appeals court in Washington where four Supreme Court justices trained, the Oregon Supreme Court, and occasionally even the San Francisco-based federal appeals court given its come-uppance last week, have in recent years won battles with the justices. The lower court judges have managed to limit the rights of terrorism suspects detained at Guantanamo, uphold awards of large punitive damages against companies and rule in favor of criminal defendants, despite the Supreme Court's disapproval.

The efforts bring complaints from lawyers on the losing end of these cases and from some scholars that the judges are "thumbing their noses" at the Supreme Court, although those complaints usually are expressed in the more polite legalese of the courtroom.

That's why an appeal asking the high court to throw out a punitive damages award calls an Oregon Supreme Court decision upholding the award "yet another attempt by that court to thwart federal due process protections."

Some federal appeals court judges in the nation's capital have been unusually direct in criticizing Supreme Court rulings that gave detainees at the U.S. naval base at Guantanamo Bay, Cuba, the right to contest their imprisonment in federal court. And the appeals court has so far blunted the impact of the high court's decisions by limiting the detainees' ability to challenge the government's evidence justifying their continued imprisonment.

Circuit Judge A. Raymond Randolph, reversed three times by the Supreme Court in detainee cases, has said the court was "profoundly mistaken" and made a "mess" of the situation.

Stephen Vladeck, an American University law professor who has represented Guantanamo detainees, said there has been nothing subtle about the appeals court's rulings and some comments, especially from Randolph and his circuit colleague Judge Laurence Silberman.

"One does not have to look hard to see fairly outright challenges to the Supreme Court's authority, which to me only makes it that much more surprising that the Supreme Court has seen fit to do nothing," Vladeck said.

The justices have so far declined to hear appeals arguing that the appeals court just blocks away at the foot of Capitol Hill has undermined the high court's guarantee, in 2008, of limited constitutional rights for Guantanamo detainees.

In the area of punitive damages, the Oregon Supreme Court upheld an $80 million award from Phillip Morris USA to a smoker's widow three times. Twice, the justices threw out the judgment.

On the third go-round in Washington, the justices seemed open to the idea advanced by the cigarette maker's lawyer that they were being played.

"We're here today because the Oregon court failed to follow this court's decision," Stephen Shapiro, told the justices.

"How do we guard against making constitutional decisions which are simply going to be nullified by some clever device?" Justice David Souter asked. Souter has since retired.

But Robert Peck, Mayola Williams' lawyer, sought to persuade the court that the Oregon court did not act in bad faith. "There was no sandbagging here," Peck said.

In the end, the high court dismissed the case without deciding anything, an outcome that left Williams' award in place. Former Oregon Supreme Court Justice W. Michael Gillette, the author of the Williams opinion, said he was heartened both by the outcome and by Shapiro's comment at another point in the argument that he was not accusing the Oregon court of acting in bad faith.

"I did not want to be remembered as a judge who was thumbing his nose" at the Supreme Court., said Gillette, now a lawyer in private practice in Portland, Ore.

But the Farmers Insurance Co. of Oregon is resurrecting the argument over the Oregon court's motivations in a new appeal. The company is asking the justices to throw out an $8 million punitive damages judgment, on top of $900,000 in compensatory damages, that the Oregon court upheld in July. Farmers Insurance contends that prior Supreme Court rulings only allow punitive damages to roughly equal compensatory damages when the behavior at issue is not reprehensible.

Theodore Boutrous Jr., representing Farmers Insurance, wrote that the state court sided with the plaintiffs "by inventing yet another procedural trap" to defy the justices. Boutrous, Wal-Mart's lawyer in the company's successful effort last term to end a nationwide class action discrimination lawsuit, said the Oregon court's decision in the Farmers Insurance case was similar to the state court's "novel and patently unreasonable" ruling to uphold the award against Phillip Morris.

The Supreme Court has yet to consider the Farmers Insurance appeal. But Peck, who is representing the people who sued the insurer, said the attack on state courts is a familiar refrain among lawyers defending companies in these suits, "There seems to be sort of this theme that I'm seeing in a lot of petitions, portraying the state courts as rogue courts that don't obey due process, seeking to stick it to defendants. The facts just don't bear that out," he said.

Judges on the 9th U.S. Circuit Court of Appeals, the San Francisco-based court involved in the shaken baby case, have to some extent grown accustomed to Supreme Court criticism.

Last term alone, the high court unanimously reversed Judge Stephen Reinhardt of the 9th Circuit three times. But Reinhardt contends that it is the high court that is changing the rules, especially in the second round of appeals that criminal defendants are allowed in order to pursue alleged violations of their constitutional rights.

"The explanation is the Supreme Court keeps narrowing people's rights under habeas," the formal term for the second round of appeals, Reinhardt said in an interview. "The court goes beyond where it's been before and reverses one of our cases. It goes and issues a new rule and says we're wrong, and then we don't do that again. But when we did it, we were right. It's not our job to anticipate their changes in the law."

But critics of the 9th Circuit say its judges at times defy the high court. They cite a saying, widely credited to Reinhardt, that no matter how often the court undoes his work, or that of his colleagues, the justices can't reverse them all.

The judge said he doesn't remember ever saying those words, but that if he did, he said it "somewhat humorously, not as indication of how you decide cases."

Still, looking back over 30 years on the federal bench, Reinhardt said he thinks "there were one or two cases where the panel must have worn them out."

Improper complaint will get dismissed

Concluding that medical judgment was used and medical expert testimony was needed, the court held that the complaint sounded in medical malpractice and the trial court properly granted the defendants' motion to dismiss. On 3/27/08, the plaintiff underwent a left total parotidectomy with facial nerve preservation performed by the defendant-doctor at the defendant-hospital. The doctor's postoperative report indicated that about an hour into the operation, she noticed that plaintiff's left earlobe was "extremely warm" and "the skin on her ear was actually peeling off and blistering." The doctor also noted that the headlight she was wearing on her head was "extremely hot, and it actually had been causing a slight burn of the skin." Plaintiff sued on 3/8/10, alleging ordinary negligence. She asserted that the hospital had a duty to properly maintain its equipment, including the headlight that burned her ear, and keep it in safe working order. She alleged that the defendants also had a duty to inspect and test the equipment to ensure that it was safe for use. She claimed that the hospital failed to maintain and/or test the headlight and to ensure that it was in proper working order. Plaintiff also alleged that the hospital "did not supervise its staff to ensure that only safe and well-maintained equipment was used during surgery." The defendants successfully moved to dismiss the case without prejudice because plaintiff failed to file the required notice of intent at least 182 days before filing the complaint, and did not file an affidavit of merit. Plaintiff argued on appeal that since no medical judgment was used by the defendants, and no expert testimony was needed to show that the headlight became extremely hot and burned her ear, the complaint gave rise to an ordinary negligence claim, not a medical malpractice claim. The court noted that there was no dispute that plaintiff's alleged injury occurred in the course of a professional relationship. Further, the headlight the doctor used during the operation was a piece of surgical equipment. To analyze the reasonableness of the hospital's actions "in inspecting and testing its surgical equipment, it is necessary to know how often a hospital is required to inspect and test its equipment. This is outside the scope of the knowledge of a lay juror, as it requires knowledge of the standard of care applicable" to the hospital. Because expert testimony was necessary for that determination, the claim against the hospital sounded in medical malpractice. Further, expert testimony was needed "to explain the surgery to the jury, why the headlight was used, how long a headlight of this sort is typically used during this type of procedure, whether there are different settings for the headlight, and if so the appropriate settings for the headlight during this kind of procedure." Expert testimony was also required as to alternative causes for plaintiff's alleged injuries and whether they could have occurred absent negligence. "Such an analysis could not be performed by a lay juror based on common knowledge."

Spousal support

The court held that the trial court's findings as to the allocation of the parties' debt were not clearly erroneous. Further, the award of spousal support was equitable based on the property and debt awarded to the parties, their contribution to the marital estate, their ability to work, the length of the marriage, disparity in income, and their post-separation living circumstances. The parties were married in 1981 and have two adult children. When the plaintiff-wife filed for divorce in 10/08, her annual income was around $30,000 and defendant-husband's was around $45,000. His pension was valued at $180,000 and is eligible for distribution in 2018 when he turns 60. Plaintiff's pension was valued at $33,000 and she will be eligible for distributions when she turns 60 in 2022. The marital home was foreclosed upon and there was a question as to whether the mortgagee would pursue a deficiency judgment. At the time of the hearing, defendant was living in an apartment and paying about $625 a month in rent and utilities. Plaintiff was living in a house that her parents helped her buy and she was paying about $850 in rent, utilities, and other bills. The parties owned a vehicle, which they sold for $10,000 and used that money to reduce the balance on the vehicle loan to $4,000. Plaintiff was driving a vehicle purchased for her by her parents, but was trying to repay them $3,500. The parties were discharged in bankruptcy in 2004 after amassing a large amount of credit card debt. Plaintiff took out nearly 15 credit cards, including some in defendant's name without his knowledge or consent. At the time she filed for divorce, the parties had amassed a debt in excess of $37,000 on 18 credit cards. Plaintiff testified the credit cards were used for household items and cash advances to make house payments. She testified that defendant was aware of the various credit cards. Although the trial court found that plaintiff was primarily responsible for the debt, it concluded that the parties had to share the net liability and split the debt liability almost equally between them. However, the trial court awarded defendant 60% of his pension benefits and 50% of plaintiff's pension benefits. In awarding plaintiff $350 a month in spousal support, the trial court reasoned that the parties were married 27 years, defendant's income was greater, and he was awarded the greater share of the pensions. It stated that it tried to create a reasonable opportunity to allow the parties to "work their way out of the individual financial hole that they will find themselves in when this divorce becomes final." The court affirmed the trial court's allocation of the marital debt and held that the trial court did not err in awarding the spousal support.

untimely med mal filing is not saved by successor representative

Noting that no binding authority exists that stands for the proposition a claim may be "revived" by the appointment of a successor PR when the original suit filed by the original PR was dismissed as untimely, the court held that the trial court abused its discretion by granting the plaintiff-PR's request for dismissal without prejudice. The trial court granted the defendants summary disposition on the basis that plaintiff's medical malpractice case was filed after the limitations period expired. Defendants appealed, objecting to language in the trial court's order indicating that the dismissal was "without prejudice" and not an adjudication on the merits. The material facts of the case were not disputed. The decedent was admitted to the defendant-hospital for a cholecystectomy on 8/13/07. He died due to postoperative complications on 8/19/07. Plaintiff was appointed the PR on 11/28/07 and delivered a notice of intent to sue to defendants on 10/2/09. The complaint was filed on 3/10/10. The court noted that the limitations period would have expired, at the latest, on 8/19/09. Since plaintiff was appointed PR on 11/28/07, she had until 11/28/09 to file suit during the saving period provided by MCL 600.5852. The trial court properly dismissed the case under MCR 2.116(C)(7) because it was untimely. However, the trial court dismissed the case without prejudice and with language indicating that the dismissal was not an adjudication on the merits on the basis that time remained under the savings provision for the appointment of a successor PR to pursue a case against the same defendants. Plaintiff cited Eggleston in support of her argument. The court concluded, inter alia, that the Michigan Supreme Court's decision in Washington "undermines the notion that notwithstanding an original" PR's "filing of an untimely complaint, a successor" PR "has the authority to pursue an action against the same defendants." The Supreme Court held in Washington that a successor PR is barred by res judicata from filing a later complaint when the first complaint is dismissed on statute of limitation grounds. "Defendants were entitled to summary disposition because plaintiff failed to file her claim within the period established by the Legislature. An order granting summary disposition based on the statute of limitations is an adjudication on the merits." Thus, they were entitled to dismissal with prejudice. Dismissal without prejudice was inappropriate because they would conceivably be subject to relitigation of the claim if a new PR was appointed. Being subject to a second suit that would otherwise be barred under res judicata would be legally prejudicial to the defendants. Reversed and remanded for entry of an order granting them summary disposition with prejudice.

Crime does not have to be charged to be excluded from insurance coverage

While the trial court correctly concluded that the "criminal act" policy exclusion barred coverage for defendant-Boos's conduct toward defendants-Cook and Essex, the court held that the trial court erred in ruling that his conduct toward defendants-Bulko and Zubor did not fall within the exclusion. Thus, the court affirmed in part and reversed in part in this declaratory action to determine the availability of insurance coverage for civil claims Cook, Essex, Bulko, and Zubor brought against Boos, a former sheriff's deputy. It was undisputed for purposes of this case that Boos sexually assaulted Cook, Essex, Bulko, and Zubor while they were in his custody during his employment as a sheriff's deputy. Boos was terminated from his employment, and he pleaded guilty to three counts of CSC II for his actions toward Essex, Cook, and a third inmate who was not a party to this case. He did not face criminal charges for his conduct against Bulko and Zubor. Cook, Essex, Bulko, and Zubor sued the county, the county sheriff and jail administrator, and Boos in federal court, alleging that Boos violated their federal and state constitutional rights and their civil rights under 42 USC § 1983. Plaintiff-MMRMA then filed this case seeking a declaratory judgment that it had no duty to defend or indemnify Boos for the women's federal claims. MMRMA alleged that Boos engaged in criminal sexual contact with the women and that his unlawful conduct toward them was subject to the criminal act exclusion in the policy. The trial court entered a default judgment against Boos after he did not respond to the complaint. The trial court concluded that Boos's actions toward Bulko and Zubor did not fall within the criminal act exclusion due to "the absence of criminal proceedings for his assaults on Bulko and Zubor." However, the court noted that there was "no dispute that Boos's conduct toward these defendants constituted a crime" - CSC II. The trial court determined that the criminal acts were not "proven, admitted or non-contested" within the meaning of the policy because there were no criminal proceedings as to that conduct. The court held that Boos's failure to contest MMRMA's allegations in this case ("specifically the allegation that his conduct with Bulko and Zubor constituted criminal acts within the meaning of the policy") compelled the conclusion that coverage was also precluded as to those defendants. Since the policy did not define the terms "proven," "admitted," or "non-contested," the court referenced dictionary definition and concluded that "non-contested" means "not challenged, disputed, or contended." By virtue of Boos's default, all well-pleaded allegations against him, including that his conduct toward Bulko and Zubor constituted criminal acts, were deemed admitted."Nothing in the language of the exclusion requires that Boos be charged with or convicted of a crime.

Doctors cannot discrminate

Concluding that the Legislature did not intend the result that a doctor could refuse to treat any patient based solely on a characteristic protected under the ELCRA (including race) and yet avoid legal liability, the court held that the trial court erred by dismissing the plaintiff's discrimination action as to denial of IVF services to single women. Plaintiff contacted defendants-Grand Rapids Fertility & IVF (GRFI) and Michigan Reproductive & IVF Center and specifically asked if the clinics would provide IVF services to a single woman. Both facilities responded that they did not provide IVF services to single women. She sued both, alleging a single count of discrimination based on marital status under the ELCRA. "First and foremost," the court rejected the trial court's conclusion "that a professional, such as a doctor, may reject a patient or client for any reason, including one based on discriminatory animus against a protected characteristic." For purposes of summary disposition, GRFI stipulated that it is "a place of public accommodation" to which the statutory prohibition of discrimination applies. The parties disagreed whether GRFI was able to "[d]eny [Moon] the full and equal enjoyment of" its services because the denial was otherwise "permitted by law." Assuming that the statutory exception includes discrimination permitted under the common law, the court disagreed with the trial court's "overly broad interpretation of the consensual and voluntary nature of the doctor-patient relationship." GRFI correctly noted that a doctor-patient relationship is contractual and may only be established voluntarily and through the consent, either express or implied, of both the doctor and the patient. However, the cases GRFI cited describe the creation of a doctor-patient relationship in establishing the necessary elements of a medical malpractice claim and absolve a doctor of medical malpractice liability where the doctor did not explicitly or implicitly consent to enter into a doctor-patient relationship with the plaintiff. GRFI did not cite "a single case in which a doctor was allowed to use the consensual nature of the doctor-patient relationship to discriminate against potential patients based on protected characteristics such as race or marital status." "Civil rights acts certainly serve to prohibit doctors and medical facilities from refusing to form a doctor-patient relationship based solely on a protected status. A contrary interpretation would allow a doctor to follow his personal prejudices or biases and deny treatment to a patient merely because he is African-American, Jewish, or Italian." After Michigan's enactment of its civil rights legislation, "a doctor may only deny his or her consent to enter into a doctor-patient relationship with a potential patient based on legally permissible, nondiscriminatory reasons." The court found Lyons instructive in this regard. The current case posed the similar question of whether a doctor may refuse to enter into a doctor-patient relationship with a patient based on discriminatory factors in violation of the ELCRA. The court held that the answer was clearly "No." The court also rejected the trial court's conclusion that plaintiff failed to create a genuine issue of material fact that GRFI discriminatorily rejected her as a patient. She clearly established that she was denied "enjoyment of the goods, services, facilities, privileges, advantages, or accommodations" offered by GRFI, which stipulated to being "a place of public accommodation" for purposes of summary disposition. The only question remaining was whether she created a genuine issue of material fact that GRFI discriminated against her based on marital status. She argued that she was given disparate treatment from married women. She proffered direct evidence of potential discrimination from the e-mail messages she received from Dr. D, indicating that GRFI did not provide IVF treatment to single women. The trial court's error stemmed from its application of the shifting burdens standard of McDonnell Douglas. Reversed and remanded.

Child support is a childs right

Concluding that the trial court "misunderstood the scope of relief ordered" in the court's prior opinion, the court reversed the order denying the defendant-wife's motion to reinstate child support arrears that accrued before 4/28/04. The court also affirmed the order denying her motion to assess surcharges on all reinstated arrears, and remanded for further proceedings consistent with the court's opinion. In Laffin, the court held that a reciprocal alimony provision in the parties' consent divorce judgment, which provided that any child support obligation imposed on the plaintiff-husband after the exhaustion of a credit would result in a reciprocal alimony obligation imposed on defendant, in the same amount was "void as against public policy, because parties cannot bargain away their children's right to support." The trial court's orders of 4/28/04 and 5/19/04 were vacated because they enforced the void provision. The court determined that "defendant is entitled to relief extending back to April 28, 2004, the date the void order was entered." The case was remanded to the trial court for a "determination of plaintiff's appropriate child support obligation, retroactive to April 28, 2004." The court noted that it did not state that defendant was entitled to relief only from 4/28/04 to present. The court granted relief extending back to 4/28/04, because that was the date upon which the trial court first entered an order enforcing the void reciprocal alimony provision. The clear meaning of the court's opinion was that plaintiff's child support obligation was reinstated as it existed on that date. The court was reinstating the status quo before the trial court enforced the void reciprocal alimony provision. That status quo included not only the child support payments from that point forward to the present, but also plaintiff's child support arrearages that existed before the 4/28/04 order. On remand the trial court shall determine whether any interim child support arrearages existed for the period before the divorce judgment was entered, and if so, those arrearages shall be included in the total calculation of arrearages that were part of plaintiff's child support obligation before entry of the 4/28/04 order. Affirmed in part, reversed in part, and remanded.