Mich. man at risk for meningitis after losing wife

DETROIT — Days after taking his wife off life support, George Cary got a phone call that confirmed his suspicions: Her meningitis-related death was linked to tainted steroid injections at a Michigan clinic that had regularly treated her back pain.

The doctor on the call had more tough news. Cary's own back injections in September may have come from a contaminated batch too.

Cary went to an emergency room last weekend for a spinal tap. The test results aren't in yet, so he is left to wait and say goodbye to his wife, 67-year-old Lilian Cary, at a memorial service Tuesday.

By ED WHITE, AP

Are you in need of an injury lawyer?

Peanut butter recall expands to 101 products, major stores

Peanut butter recall in 30 states now includes other nut products from manufacturer Sunland, Inc., which may be linked to a salmonella outbreak. Several major retailers, including Whole Foods and Target, have pulled products as part of the expanded peanut butter recall.

By Schuyler Velasco, Correspondent / October 2, 2012

Last week, the FDA recalled all jars of Trader Joe’s Valencia Salted Peanut Butter made with Sea Salt, pulling the product off Trader Joe’s shelves due to a possible link to salmonella illnesses reported in 19 states....

Are you in need of an injury lawyer?

Attorneys trade barbs in Patterson crash

Tests show no drugs, alcohol in systems of Oakland exec, driver

Waterford Township — Attorneys for L. Brooks Patterson and the Royal Oak man charged with causing the Aug. 10 crash that injured the Oakland County executive traded barbs Tuesday over evidence in the case.

Steven Potter, who represents Patterson and security officer James Cram, who was driving Patterson's Chrysler 300 when the crash occurred, released toxicology tests showing neither man had alcohol or drugs in their system.


By Charles E. Ramirez
From The Detroit News:

Are you in need of an auto accident injury lawyer?

Biker group claims motorcycle deaths fell since helmet law took effect

Proponents of the law allowing motorcyclists to ride without helmets stated Tuesday that despite predictions to the contrary, motorcycle fatalities actually have dropped by 7 percent.

American Bikers Aiming Toward Education (ABATE) said the drop was based on statistics obtained from the Michigan State Police and the Michigan Secretary of State.

"We at American Bikers Aiming Toward Education, or ABATE Michigan, are concerned with motorcycle safety, so we have been monitoring the effect of this helmet law modification to see what impact it has made, " said Vince Consiglio, President, for ABATE Michigan.

By Tom Greenwood
From The Detroit News:

Are you in need of a personal injury lawyer?

Hurt when trespassing

If you trespass and get hurt, you probably cannot recover for your injuries.

The court held that the trial court properly granted summary disposition for defendant because plaintiff was not a licensee and defendant-Woudenberg's actions were not willful and wanton, he did not breach his duty of care, and he was not a general contractor. Thus, the court affirmed the trial court's grant of summary disposition for defendant. Plaintiff and Woudenberg both own condo units at the defendant-Union Square Development. In 3/08, plaintiff was showing his condo to prospective renters. He opened an unlocked, unmarked door that he thought led to an exercise room. Instead, the door was a second entrance to one of Woudenberg's two units. Plaintiff stepped through the door, fell six feet to a concrete floor, and sustained injuries. Woudenberg was in the process of renovating the unit, and earlier he had asked his employee, A, to remove a platform in front of the door and to barricade and lock the door. A removed the platform, but he did not lock the door. He placed a small barricade at the bottom of the door. The court rejected plaintiff's argument that he was a licensee, noting that plaintiff was a trespasser. The court observed that there was no evidence that defendant acquiesced in the known, customary use of the property by the public. The court further observed that plaintiff did not know what lay behind the door when he opened it. The court also rejected plaintiff's argument that, even if he was a trespasser, the trial court erroneously dismissed the case because defendant's actions were willful and wanton. The court noted that defendant did not show such indifference to whether plaintiff would be injured because he instructed his employee to lock and barricade the door. The court also rejected plaintiff's argument that defendant breached his duty of care, noting that defendant's conduct did not amount to the improper performance of his construction work in the building, and he was not acting as a general contractor. Finally, the court rejected plaintiff's argument that defendant assumed the duty to protect plaintiff from the platform when he instructed his employee to barricade and lock the door.

Injury from Gravel

Excessive gravel on roads does not lead to liability for the road commission in Michigan.
Issues: Whether the trial court properly denied the defendant-Road Commission's motion for summary disposition in this case involving the "highway exception" to governmental immunity; MCL 691.1402; Whether the trial court properly held that a question of fact existed as to whether defendant had "notice" of the alleged defect; MCL 691.1403; Wilson v. Alpena Cnty Rd. Comm'n; LaMeau v. City of Royal Oak; Sweetman v. State Hwy. Dep't; Whether the gravel on the road came from a source other than defendant; Whether claims based on objects on a roadway or sidewalk are within the highway exception; Whether they are a "defect" in the actual roadway; Applicability of Haliw v. City of Sterling Heights, Estate of Buckner v. City of Lansing, and Plunkett v. Department of Transp.; Obstructions on a sidewalk or roadway; Wedderburn v. Detroit; Brown v. City of St. Johns; Joslyn v. Detroit; Defect or defective condition must be "within the paved or unpaved portion of the roadbed . . ." and "located in the improved portion of the highway"; Nawrocki v. Macomb Cnty. Rd. Comm'n; The Governmental Tort Liability Act (GTLA)
Court: Michigan Supreme Court
Case Name: Paletta v. Oakland Cnty. Rd. Comm'n
e-Journal Number: 51360
Judge(s): Young, Jr., Markman, M.B. Kelly, and Zahra; Voting to deny leave to appeal – Cavanagh, M. Kelly, and Hathaway

In an order in lieu of granting leave to appeal, the court reversed the Court of Appeals judgment (see e-Journal # 49385 in the 8/22/11 edition), holding that the accumulation of gravel on the paved roadway was not actionable under the highway exception to the GTLA. The court concluded that "an accumulation of gravel, whether natural or otherwise, does not implicate the defendant's duty to maintain the highway in 'reasonable repair.'" The court remanded the case to the trial court for entry of an order granting the defendant-Road Commission summary disposition.

Shoemaker mold talks

Doctor talks about how mold makes people ill

Posted on: 3:21 pm, December 22, 2011, by Laurie Simmons

 

, updated on: 05:27pm, April 9, 2012

NewsChannel 3 has gotten big results with both Lincoln Military Housing and the Navy making big changes in complexes all over Hampton Roads.

Now NewsChannel 3 is taking action to help families suffering from major health problems caused by mold exposure.

Since the beginning of NewsChannel 3’s exclusive investigation into mold in military housing, the common denominator in all these families stories has been the health problems.

Dr. Ritchie Shoemaker says the science is clear. He wrote the book on Surviving Mold, which compiles 15 years of his own research on thousands of patients who lived in moldy and water-damaged buildings.

His findings are starting to change everything about the way the world views mold-related illnesses.

“It’s systemic. Not a runny nose, not a sneeze, it is an inflammatory cascade that we can show step-by-step, hormone-by-hormone,” says Dr. Shoemaker.

He says the key to it all is in our genes.

By taking just one tube of blood from a patient, Dr. Shoemaker can see if they have the proper immune response gene.

According to Dr. Shoemaker’s research, about 75% of humans have a gene that helps them fight against toxins in the body. The other 25% have a different variation of that gene which means their bodies cannot fend off the same attacks, including those that come from mold.

“There are people who move into the moldiest buildings you find that won’t be affected.  They might have some allergy, but they won’t have inflammatory illness or bio toxicity that other 25% does,” says Dr. Shoemaker.

For years, the CDC has acknowledged that mold can cause respiratory illnesses and asthma in people exposed to water-damaged buildings.

As for more serious illnesses involving the brain and neurological systems, they say that link has not been proven.

But Dr. Shoemaker says his findings, along with other doctors on the cutting edge of research, are now debunking that school of thought.

Those illnesses are not just simple allergies.

“Anywhere in the body where blood flows there can be an effect in inflammatory response to a water-damaged building,” says Dr. Shoemaker.

“When you lose regulation of inflammation, inflammation goes haywire. It’s not stopped, person stays ill,” says Dr. Shoemaker.

Everything from digestive issues to skin lesions to brain damage and memory loss has been linked to mold exposure by Dr. Shoemaker.

So how much exposure is enough to cause these illnesses?

According to the CDC, those standards have not been established.

“Just about every word in that sentence is not only wrong, it’s deceiving in its wrongness. We don’t need high levels to make susceptible people sick because of genetics,” says Dr. Shoemaker.

He says in that 25% of the population, just being in a water-damaged building can cause serious illness even if mold tests show low levels of spores in the air.

“If you use a air sample to say its safe, that’s fraud,” says Dr. Shoemaker. “You don’t even need testing when you have obvious water intrusion.”

Even the EPA recently funded and patented mold standards through what’s called the “Ermi Test.”

It samples the dust in a person’s home to see what kinds of mold show up.

Dr. Shoemaker says this test will show if there are high enough levels of mold in a home to make someone sick.

“Every time you see someone sickened by a water-damaged building, someone has been negligent,” says Dr. Shoemaker.

So what does that say about the Navy and Lincoln Military Housing who have admitted their fault in allowing military families to live in leaky homes for years?

Dr. Shoemaker had some strong opinions.

“We put them in protective vehicles to not get blown up by IEDs, so we put them in a bathroom where the drywall is falling down, not right. Gave them purple hearts, and then we put them into a home with a window leaking and they step through the floor and it collapses. That’s not right,” says Dr. Shoemaker.

Because this is something that’s in your blood, simple removal from a water damaged building will not get rid of your sickness if you are in that 25% group.

But the good news is that gene deficiency can be treated by doctors with hormone therapy as long as it’s properly diagnosed.

Coping Mold Exposure

Scott Forsgren, of BetterHealthGuy.com
, posted an excellent blog onthe Biotoxin Illness Conference hosted by Gordon Medical Associates in Santa Rosa, CA.  Thank you Scott for your hard work in educating patients and doctors regarding this most important health issue.

Slip and Fall dangerous walk

If you choose to walk in a place that appears to be potentially dangerous, you may not be able to recover for your injuries.

Issues: Premises liability; Fall from a platform stage; Whether the trial court properly found there was a question of fact as to whether the hazard involved was "open and obvious" and denied defendant summary disposition; Maiden v. Rozwood; Slaughter v. Blarney Castle Oil Co.; Arguments as to the plaintiff's age; Mann v. Shusteric Enters., Inc.; Lugo v. Ameritech Corp.; Mitcham v. City of Detroit
Court: Michigan Court of Appeals (Unpublished)
Case Name: Chesser v. Radisson Plaza Hotel at Kalamazoo Ctr.
e-Journal Number: 51368
Judge(s): Per Curiam - Sawyer, O'Connell, and Ronayne Krause

On reconsideration in an interlocutory appeal in this premises liability case, the court held that it was clear from the evidence that a reasonable person would have been aware of the danger posed by the raised stage with its narrow walking area and unguarded rear. Thus, the condition was open and obvious. The trial court erred in finding a question of fact as to whether the hazard was open and obvious, and in denying defendant's motion for summary disposition. The case arose from plaintiff-Norma's fall off a raised platform-stage while walking on it during an event held on defendant's premises. Plaintiff was a speaker at the event, and the stage was set up with stairs at each end, a table along the front with a podium in the middle, chairs at the table, and a space along the back for traversing the stage (or getting from a seat to the podium and back). Both parties attached photographs of the stage setup. Neither party disputed that the stage was set up to have some distance from the wall behind it, and there were no guard rails at the back. On the day of the incident, plaintiff entered the room about 10 minutes before the conference was scheduled to start. She went up the stairs on the right side of the stage and, as she explained, was aware that she was on an elevated surface. She did not believe the situation was dangerous at the time. Since her assigned seat was on the left side of the stage, she walked almost the entire length of it to her seat. All of the seats on the right side of the stage were already occupied, so she had to walk behind the filled seats. She had no problem doing so. She took her seat at the table on the left side of the stage. She had no problem standing up for the Pledge of Allegiance. When she got up to give her speech she "realized there was a space in the back of the stage and [she] had to move to the right of the chairs to stay away from the edge." She testified that she had given speeches to audiences before, and had given one the prior day. She got to the podium with no problems, spoke for about five minutes, turned to return to her seat, and had to move around the seat right next to the podium. She walked behind two seats without problems. When she got behind the third seat, she fell off the stage. She explained that her right foot simply "stepped on air." She landed "full force" on her shoulder. Defendant moved for summary disposition arguing that the hazardous condition of the back of the stage was open and obvious. The trial court denied the motion on the basis that it was a factual question for the jury. The court noted that the standard "is what a reasonable person in plaintiff's position would have apprehended, not what a specific plaintiff was aware of . . . ." Reversed.

Moldy Schools

If you or your child has symptoms found on the diagnosis tab of www.survivingmold.com, it may be from mold in your home, but it may also be from mold in your school. Mold exposure can be very serious, and can ruin the quality of a persons life. Often a person feeling symptoms that make them constantly tired or have constant head aches or worse, blame themselves, and are not aware of whats happening. I know this personally, because recently my home began rpoducing dangerous mold from a leaky sump pump. I started feeling tired all the time. I would come home and think, wow I'm tired but I didn't really do that much, I don't get it. Then headaches started. It was getting bad, and my family started having symptoms too. I don't think I would have figured it out, but because I am a mold lawyer, I eventually did, but not at first, despite being trained in the area.

-Tim Corr

Hi – my name is Lee Thomassen. If you read Dr. Shoemaker’s book Surviving Mold, you might recognize me as the author of chapter 20 (“Teaching in a Water-Damaged School – Fighting for Our Lives”). It is now September of 2011. Being out of the building for seven weeks over the summer did wonders for my “brain fog.” My first experience with VIP (Vasoactive Intestinal Polypeptide) replacement therapy brought all but one of my abnormal blood counts down to normal. I have used this window of opportunity to write with a clear memory a historical account of what I experienced during the 2010-2011 school year.

Hurt while stealing

If you get hurt during your arrest by shop lifting police, you may not recover for your injuries, because you were hurt as a result of the fact you were stealing.

Concluding that the record showed the plaintiff's shoplifting contributed to the chain of events that led to her injuries, the court held that the wrongful conduct rule barred her claims and affirmed the trial court's order granting the defendants summary disposition. The case arose from an altercation between plaintiff and defendant-Duncan, a loss prevention supervisor for the defendant-Kohl's. "Plaintiff shoplifted clothing from Kohl's, and Duncan pursued her into the parking lot. A tussle ensued, during which plaintiff tripped, or fell, or was pushed, and she sustained a broken collarbone." She sued for assault and battery, IIED, negligence, and negligent hiring and training. The wrongful conduct rule "is a common law doctrine that precludes a plaintiff from maintaining an action that is based in whole or in part on the plaintiff's wrongful conduct." The rule "'only applies if a plaintiff's wrongful conduct is a proximate cause of his injuries.'" A plaintiff who "engaged in a wrongful act may be able to recover if the wrongful act was a 'remote link in the chain of causation.'" The court noted that "the parties stipulated that plaintiff engaged in shoplifting, which is wrongful conduct." Thus, the only potential factual issue was whether her shoplifting was a proximate cause of her injuries. She argued that summary disposition was inappropriate because her shoplifting was not "the" proximate cause of her injuries. The court concluded that her argument misconstrued "the causation factor of the wrongful conduct rule by blurring the significant distinction between 'a' proximate cause and 'the' proximate cause. The wrongful conduct rule bars an action if the plaintiff's conduct was a proximate cause of the plaintiff's injuries." To determine whether plaintiff's wrongful conduct was a proximate cause of her injuries, the trial court had to determine whether her act of shoplifting contributed to a chain of events that led to her injuries. While plaintiff contended that defendants were liable unless her shoplifting was the immediate and direct cause of her injuries, the court disagreed. Since the record showed that her shoplifting set in motion the chain of events that led to her injuries, "plaintiff's wrongful conduct was a proximate cause of her injuries, and the trial court properly applied the wrongful conduct rule" to dismiss her claims. While plaintiff also argued that MCL 600.2917 presented legal and factual issues that precluded summary disposition, the court disagreed. Assuming that the statute "protects admitted shoplifters, as opposed to suspected shoplifters," the court held that by its terms, "the statute does not apply unless a plaintiff has presented a cause of action against a merchant." Plaintiff failed to support her cause of action - the record showed that her shoplifting was a proximate cause of her injuries. "Absent some evidence that unreasonable conduct by defendants was the proximate cause" - "the one intervening and most direct cause of plaintiff's injuries," the statute did not apply. Since the record contained no such evidence, the statute did not apply.

CPS failure to protect

If CPS fails to remove a child from dangerous circumstances they may not be held responsible. As the court put it, the child that was not removed was in no worse or better position as a result of CPS failure to protect.

The court affirmed the trial court's orders in these consolidated cases granting the defendants-DHS and DHS employees and officers summary disposition, holding, inter alia, that the plaintiffs-PRs for the decedent children could not prevail under DeShaney and Gazette on their MCTC claims. In Docket No. 302545, plaintiff alleged that defendants were derelict in their mandatory duties to investigate and safeguard decedent-Nicholas from his "extremely abusive father," who later killed himself, his wife, and Nicholas. In Docket No. 302622, the plaintiff alleged that defendants failed to protect decedent-Calista from her parents, which resulted in her death. She was chained to her bed when a fire broke out in her home, and was asphyxiated from carbon monoxide poisoning. The court noted that because none of the individual defendants other than defendant-Udow were state officers, the trial court (the Court of Claims) lacked jurisdiction over them and plaintiffs' claims against the employee defendants were properly dismissed. However, the trial court had jurisdiction to hear the claims against the state and Udow. Plaintiffs' only claim was based on "the principle that the Michigan Constitution contains an implied cause of action for money damages when the state, or its agents/agencies, infringe on a resident's due process rights guaranteed under the Michigan Constitution." They asserted that the decedents were deprived of their rights to life and liberty. The court concluded that this was unfortunately true. "However, it was the fire and the decedents' negligent parents, not the state, who deprived them of these rights." The court noted that in a very similar case, DeShaney, the U.S. Supreme Court "declared that in the absence of a special relationship the government's failure to protect a child from his parents cannot qualify as a violation of due process, notwithstanding the government imposing affirmative duties on its employees." Likewise, the court held in Gazette "that no special relationship existed for purposes of a due process violation when a police officer failed to timely investigate the disappearance of the victim." The undisputed facts showed "that there was no special relationship between the decedents and the state. Neither was ever taken into custody, nor did the state deprive them of their liberty. Instead, the facts show that the state unfathomly failed to act, leaving both children in the same perilous position they had always been in - no more or no less vulnerable then they had always been." The court concluded that the plaintiffs "failed to properly plead a substantive due process violation against the state under the Michigan Constitution." The only affirmative act they alleged imposed a duty on the state for increasing the risk to the decedents was warning the parents of the danger presented by chaining a child to a bed. "Defendants' failure to remove the decedents was not an affirmative act," and plaintiffs failed to show that the DHS and Udow "were deliberately indifferent" to the decedents' well-being. Plaintiffs also failed to "sufficiently allege that defendants' conduct of inaction was mandated by official custom or policy." While plaintiffs cited "several failures by the employee defendants to comply with their official CPS investigation policies and guidelines, these failures merely prove the state's failure to act, not that it was acting pursuant to a mandatory policy of inaction."

Bailiff hurt occupant in eviction

If someone is hurt by a bailiff when being evicted, the bailiff may be liable.

The court held that defendant-Dixon failed to demonstrate that he was entitled to governmental immunity (or quasi-judicial immunity) as a matter of law as to the plaintiff-PR's assault and battery claim. The court also held that the Court of Claims did not have subject matter jurisdiction, and that Dixon was not entitled to summary disposition on plaintiff's gross negligence claim. Thus, the court affirmed the trial court's order denying Dixon's motion for summary disposition. Plaintiff sued defendants, including Dixon, a bailiff, for negligence or gross negligence and assault and battery in the death of her husband during an eviction. The court rejected Dixon's argument that he was entitled to governmental immunity, noting that there was "ample evidence" that he acted "maliciously and with wanton and reckless disregard for" the decedent's rights. The court also rejected his argument that the Court of Claims had jurisdiction, finding that Dixon did not meet the criteria for being labeled a "state officer" under Burnett. The court also rejected his argument that he was entitled to summary disposition on plaintiff's gross negligence claim, concluding that "there were sufficient additional allegations to avoid the precepts of VonVorous," and plaintiff set forth sufficient facts demonstrating gross negligence. Further, the court rejected Dixon's argument that he was entitled to quasi-judicial immunity, finding that he failed to present sufficient persuasive authority to support his argument, "and his actions were not analogous to those of a judge." Affirmed.

Costruction company causes backup

In the below case a construction compoany cleared debris from a manhole by dumping it into the manhole. Easy way to get rid of it but later, that caused sewage to flood into a residence.

Since the circumstantial evidence of defendant-Nagle's role in the deposit of asphalt debris in a manhole went beyond speculation and conjecture, and the evidence submitted was sufficient to create a genuine issue of material fact to withstand Nagle's motion for summary disposition, the court reversed and remanded for further proceedings. In 4/07, plaintiffs-Kole's basement flooded with 8 to 10 inches of sewage. The parties did not dispute that the flooding resulted from a sewer system backup that was caused by excessive debris, including large chunks of asphalt in a nearby manhole. Plaintiffs alleged that Nagle was responsible for depositing the asphalt in the manhole in 2005 when it performed a paving project (the Cobblestone project) for defendant-Pinehurst, a subdivision developer in the area. Nagle denied responsibility. The trial court granted defendants' summary disposition motion on the basis that plaintiffs failed to sufficiently demonstrate that the asphalt was deposited by Nagle and plaintiffs' evidence that Nagle was the responsible party was too speculative. Plaintiffs contended that the affidavit of JB, Nagle's project manager, differed from his deposition testimony and should not have been considered. However, the court noted the affidavit was not offered to contradict his deposition testimony, rather his deposition testimony explained the subject matter of the affidavit. Thus, it had to be considered in the light most favorable to plaintiffs to determine whether there was a genuine issue of material fact. The court also noted that causation is generally decided by the trier of fact unless there is no genuine issue of material fact, in which case the issue may be decided as a matter of law by the court. The evidence submitted showed that the manhole at issue, as of 2003, was clear of any debris. On 5/4/07 two men (P and S) assisted in clearing the manhole of debris, which consisted of asphalt, gravel, brick, concrete, and "normal toilet paper and your sediments that come down the line." The majority of the material in the manhole was asphalt, which was large enough that it could not be carried up. P said "saw-cuts" were visible on the asphalt. The brick that was in the debris was "manhole brick," which is different than "house brick." P believed that the debris was deposited into the hole when the manhole structure was hit during excavation. Since 2003, P said the only paving project in the area was the Cobblestone project. S also believed that the source of the debris in the manhole was road construction during that project. JB stated in an affidavit that Pinehurst retained Nagle to pave a road and Nagle saw-cut part of an existing road before paving a new part of the road. In his deposition, JB acknowledged that heavy machinery does occasionally strike manholes causing damage from which asphalt can enter the manhole, and did not rule that out in this case. Plaintiffs' expert, N, opined that Nagle was responsible for allowing the asphalt and related debris to enter the manhole and caused the sewer backup. The court concluded that the evidence viewed in the light most favorable to plaintiffs created a genuine issue of material fact as to whether Nagle was responsible for the asphalt debris in the manhole.

Slip and fall on a leaf

In the below case a person tripped on a sidewalk lip that was covered by a leaf. The court ruled they should have paid more attention and they have no cause of action.

Holding that a leaf-concealed sidewalk lip was an open and obvious danger, the court concluded that the trial court properly granted the defendant-premises owner summary disposition. Plaintiff, her husband, and her daughter were walking into defendant's restaurant on 11/24/07. The ground was covered with leaves at the time, and the sidewalk underneath was not visible. There was an approximately two-inch lip in the sidewalk in the area where plaintiff tripped, just in front of the stairs leading up to the restaurant's entrance. No one was exactly sure what she tripped on at the moment it happened. However, upon inspection, plaintiff's husband and daughter saw the lip and assumed it was what caused plaintiff to trip. Plaintiff testified at her deposition that she did not know what tripped her, just that her foot "bumped into something," that she "hit something," "stubbed something," and that she "now know[s] there was a lip there." She had been to the restaurant at least three times previously and had never fallen before. The trial court determined that the sidewalk lip covered by leaves was an open and obvious condition and summary disposition was appropriate. Plaintiff argued on appeal that the condition was not open and obvious because the defect - the sidewalk lip - was completely covered in leaves. The court disagreed. "Plaintiff's fall occurred during autumn in Michigan when leaf-covered sidewalks are neither remarkable nor unexpected. Casual observation would alert the average individual of the potential danger posed from slipping on the leaves or tripping over something hidden under the leaves." Affirmed.

Slip and fall

If you should have seen a danger and didn't then if you're injured it may be your fault.

Holding that the plaintiff's testimony did not establish a genuine issue of fact as to whether an average person of ordinary intelligence and perceptiveness would, in exercising ordinary care, have discovered and avoided the pallet, the court affirmed the trial court's order granting the defendant summary disposition. Plaintiff was shopping at defendant's store, which she described as very brightly lit. She walked down an aisle toward the back of the store, turned at the end of the aisle, and tripped over a three-foot-square wheeled wooden pallet that was right around the corner. "The pallet protruded about three feet into the adjacent aisle, taking up approximately half of it. The color of the pallet contrasted with the color of the floor." Plaintiff testified that she did not see the pallet until after it hit her shin, and that she could have walked around the pallet had she seen it. "Plaintiff jumped onto the pallet with both feet after she struck the pallet, and the pallet then rolled out from under her. She fell to the floor and was injured." The trial court determined that the pallet was open and obvious, and had no special aspects. "The gravamen of plaintiff's argument is that she provided unrebutted testimony that she did not see the pallet and could not have seen the pallet," thus the pallet could not have been open and obvious. "However, openness and obviousness is evaluated from an objective standard, ‘and the inquiry is whether a reasonable person in the plaintiff's position would have foreseen the danger, not whether the particular plaintiff knew or should have known that the condition was hazardous.'" While plaintiff described the pallet as "hidden" and "camouflaged," the evidence contradicted her description. "In fact, it is known that the pallet contrasted with the floor and the area was brightly illuminated. The pallet was merely around a corner." Drawing an inference favorable to plaintiff, the court presumed that the shelving making up the aisles was stocked in a manner that they could not be seen through. However, the court agreed with defendant's argument that it was "impossible for the pallet not to have been visible to a person approaching the end of the aisle before reaching the pallet itself. The pallet stuck out three feet - halfway across the intersecting aisle. If the pallet was directly at the corner of the intersection, some of it would have been visible before reaching the corner itself. If the pallet was far enough back from the corner that it could not be seen prior to turning, then it would have been far enough away for a person to see it and stop after turning. There were no other obstructions to viewing it, nor would it have in any way been indistinguishable from its background." The court concluded that "the only possible way a reasonable person would fail to have noticed the pallet is that the person was not exercising ordinary care." Further, there were no special aspects since plaintiff conceded that she could have easily avoided the pallet had she seen it.

Assault and battery

Abuse your spouse too much and you might get sued when the divorce is over.

The court held, inter alia, that the trial court did not err in denying the defendant-ex-wife's motion for summary disposition where she was not entitled to judgment as a matter of law under MCR 2.116(C)(7) and (10) because the plaintiff-ex-husband's assault and abuse of process claims were not related to the very existence of their marriage. While the parties were married and living together with plaintiff's mother, they had several arguments. One night, plaintiff announced that he wanted to sleep in the recliner in the other room. Defendant said they would sleep together as usual, hit him and he told her to leave him alone. He went with her into the bedroom to sleep together, but she began arguing again. Plaintiff said he had had enough and wanted to go. Defendant pushed him, hit him in the stomach, sat on his chest, told him he could not leave her, and she would have him killed. She scratched his face and hit him two or three times. Plaintiff got away from her, went into the bathroom and saw that he was bleeding. He dialed a number for the police, but defendant took the phone and threw it onto the kitchen table. A few minutes later, the police arrived at their home and took photographs of his face. The scratches apparently were on his face for two months. After the incident, he filed for divorce. However, the parties continued to live together. Later, another incident occurred while plaintiff was on the phone discussing the divorce. Defendant tried to take the phone from him and she scratched his finger. Defendant went into another room, called the police and shouted that her husband was trying to kill her. Plaintiff took his mother into a bedroom and called the "county domestic violence victim." The police soon arrived, no one was arrested, and the officer did not see any injuries, wounds, or blood on defendant. Later, she filed a PPO against him. After a hearing the PPO was dismissed. The parties entered into a domestic relations arbitration agreement. After arbitration, the trial court entered a judgment of divorce, which provided that it resolved all pending claims and closed the case. Later, plaintiff, in propria persona, filed this case against defendant alleging, inter alia, assault and abuse of process. Defendant moved for summary disposition and the trial court denied her motion, found in favor of plaintiff on those two claims, entered an order awarding him $17,300.24, and dismissed his other claims with prejudice. On appeal, she argued under Gubin, plaintiff's claims for abuse of process and assault were precluded by the divorce judgment because they related to the "very existence of their marital relationship." The court disagreed and held that the trial court properly denied her motion. The court affirmed in part but reversed the trial court's finding holding defendant liable for abuse of process and awarding plaintiff $2,500 in damages.

Slip and fall on ice

Concluding that the evidence, viewed in the light most favorable to the plaintiff, created a material question of fact as to whether there were indicia of a potentially hazardous condition, the court reversed the trial court's order granting the defendant summary disposition in this premises liability case. Plaintiff alleged that on 11/18/08, she slipped and fell on black ice in defendant's parking lot. She argued on appeal that the trial court erred in granting defendant summary disposition because there were no indicia of a potential icy condition at the time she fell. The court agreed. The evidence showed that she slipped and fell on a cold mid-November day. There was some evidence that the weather conditions "were rather wintry." However, the evidence showed that plaintiff did not see any ice before slipping and falling. She recalled that it had snowed two days before and that in the days leading to the incident, she had no trouble traversing defendant's premises. "On the day of the incident, plaintiff recalled that the porch and sidewalks were not snowy or icy." Defendant argued that there were indicia of a potentially hazardous condition. Plaintiff testified that it was "cold," and based on meteorological records the temperature was below freezing when she slipped and fell. She did not recall seeing any ice or snow in defendant's parking lot. In the days leading up to the incident, "there was mild precipitation. In particular, two days before plaintiff's fall, less than an inch of snow fell. However, there was no precipitation the day before the incident and there was also no precipitation on the day of the incident or when plaintiff traversed on defendant's premises." After the snow fall two days before, there were periods of temperatures above freezing. "While the meteorological records indicate that there were trace amounts of snow on the ground the day plaintiff fell and that it had snowed two days before, there was no evidence that there was snow present on defendant's premises or where plaintiff fell. Further, unlike in Janson, there was no precipitation on the morning of or the day before the incident." There was no mist, light freezing rain, or snow falling the day before or the day she fell. There was also no evidence that she saw anyone else slip before she fell. Like Slaughter, the facts here established "that merely because there were wintry weather conditions days prior to plaintiff's fall, ‘each day can bring dramatically different weather conditions' and these facts are not enough to render any weather-related situation open and obvious." Thus, there was a question of material fact as to whether the weather conditions would have alerted an average user of ordinary intelligence to discover the danger.

Mold exposure education

Over 9 hours of talks on Biotoxin Illness: The Science Behind Accurate Diagnosis and Effective Treatment for medical professionals and anyone concerned with the reality of mold exposure are now available ay survivingmold.com.


"Shoemaker for Dummies" presented by Neil Nathan, MD, and Alan McDaniel, MD on non-IgE mold allergy, with panel discussions including these doctors, plus Eric Gordon, MD, and Wayne Anderson, MD.

These DVDs include the entire weekend, both the public and the medical professional information. The Power Point Slides are included in the DVD, overlaid during the talks, and as separate PDF documents for you to read through at your leisure. The talks and resources on this DVD set will provide necessary information to diagnose the problem, treat the layers of dysregulation of the immune system, and to manage the environment to protect against further exposure.

There is also a CD with the full set of Power Points as PDF, including slides that were not seen during the conference, a full Syllabus from the conference, and a list of PDF documents that Dr. Shoemaker has collected as supportive documentation of his work. Of special interest were the question and answer panels with Dr. Shoemaker and the Gordon Medical physicians, providing a range of physician experience.

Mold remediation requires expert handling

Cleaning Contaminated Contents: The Neglected Aspect of Remediation

A Large and Complex Challenge for Restoration Professionals
The challenge of properly dealing with damaged contents is present in just about every loss. The cumulative effect is quite astounding from a monetary standpoint with the latest available estimate of the annual cost of damaged contents in the U.S. from fire and floods at 2.7 billion dollars1. Nor does that represent the total cost. Unfortunately, getting an estimate of the cost of contents damaged from sewage backflows and trauma incidents is difficult because many of those losses are not covered by insurance. As State Farm insurance company bluntly states in their website factsheet entitled Reduce sewer and drain losses in your basement:

• Each year, sewer and drain backups cause millions of dollars in damage to the homes owned by State Farm® policyholders. State Farm homeowner policies do not cover losses incurred from sewer or drain backup.

Cleaning of hard non-porous contents that are subjected to fire and smoke damage, flooding, sewage backflow, or blood borne pathogens is fairly straightforward. However, considerably more time and effort is expended on the cleaning of soft contents to the point where cash out of such materials has become the norm for the industry. The difficulty in salvaging soft contents is related to both the concerns of the contractors as well as the claimant and other individuals involved in the restoration process. Specifically the difficulty in salvaging soft contents is related to four different concerns:

• Anxiety of the contractors about their ability to properly clean a wide variety of items.
• Hesitancy of safety and health professionals to document that the cleaning was conducted appropriately.
• Perception of the claimant that such items cannot be restored.
• Reluctance of insurance adjusters to undertake cleaning rather than cash-out if the insured is going to resist accepting the items.

Dealing with fire, flood, sewage, or blood contaminated contents raises a host of safety and health questions for both the contractors responding to the situation and the occupants who must live with the consequences of decisions made in the field. Because of the wide variation in cleaning effectiveness of standard processes for such losses (such as onsite vacuuming and hot water extraction or off site cleaning using standard laundry or dry cleaning techniques) it has been difficult for restoration professionals to determine if such impacted contents have been
properly cleaned without destructive testing or massive testing protocols. As such, the response to such losses has generally involved the cash out of any soft goods or porous materials which are damaged in such cases. While this conservative approach does protect the occupants, it is expensive and wasteful if a proven alternative is available.

Mold exposure update

Symptoms can range from chronic fatigue to brain damage if you have exposed to toxic molds in an indoor environment. Unfortunately most doctors are not trained to identify and treat such exposure. Dr Ritchie Shoemaker of Maryland is an expert in the area of toxic substance exposure and he leads the way in our country helping victims.

An excerpt from his blog is "YES!!! I was euphoric! After years of illness and watching my health and the health of friends like Christine Goldman deteriorate, a ray of sunshine had finally come after the storm. I knew that I still had hurdles to overcome, but I at least had a sporting chance of presenting my case in a forum outside the school system."

In Surviving Mold (a recent book by Dr Shoemaker), Dr. Shoemaker shares his latest findings and offers hope to those who have been continually let down by the medical community. Containing Dr. Shoemaker's cutting-edge research into the effects of chronic neurotoxins, Surviving Mold also examines in-depth the root causes of the growth of dangerous mold forms in buildings and homes.

And for the first time, Dr. Shoemaker’s lectures are available for physicians to be trained in his protocols, and patients to learn about their illness, as well as collation of research data. Learning how to use an organized approach to diagnose and treat biotoxin illnesses opens an entire new world on the dead ends of guesses, assumptions and use of questionable lab results that are still ongoing.

Fall off stage plank

If you chooses to walk a plank and fall, it's probably your fault and you can't sue the ship's captain.

The court held that while a dangerous open and obvious condition is not necessarily effectively avoidable simply because it was successfully avoided, "if the condition is avoided multiple times, that does show that it was effectively avoidable." In this case, "the hazardous situation of the narrow walking area and unguarded back of the elevated stage was successfully navigated multiple times by multiple people, including" the injured plaintiff. Thus, the court concluded that the trial court erred in finding there was a question of fact as to whether it was effectively unavoidable and in denying the defendant's summary disposition motion. The injured plaintiff fell off a raised stage platform while walking on it during an event held on defendant's premises. She was a speaker at the event. The stage was set up with stairs at each end, a table along the front with a podium in the middle, chairs at the table, and a space along the back for traversing the stage (or getting from a seat to the podium and back). Neither party disputed that the stage was set up some distance from the wall behind it, and there was no guardrail at the back. After reviewing the photos submitted by the parties and the injured plaintiff's testimony, the court found that "it was unambiguously obvious that the stage was raised off the ground, had a narrow area in which to walk behind the chairs on the stage, and was unguarded at the back. It should go without saying that an average adult would be aware that falling off a raised platform would be dangerous and that there is an increased risk of doing so when maneuvering room is tight and railing is absent." Further, the stairs to ascend or descend the stage were at the far ends, giving anyone approaching the stage a clear view of the situation. The court concluded that under the circumstances, "a reasonable person would have been aware of the danger posed by the raised stage with its narrow walking area and unguarded rear." The more difficult question was whether the hazardous condition was effectively unavoidable. "A condition is 'effectively unavoidable' if it cannot be avoided by an invitee without that invitee avoiding the premises altogether." The court concluded that just because the injured plaintiff "technically could have refused to ascend the stage, the hazard was not therefore effectively avoidable." The court also noted that "'effectively unavoidable' does not necessarily mean 'absolutely unavoidable.'" However, the "number of times a hazard is safely bypassed will eventually show that that avoidance of harm is not a statistical fluke." Defendant cited several unpublished opinions involving situations where a hazard was faced numerous times by numerous people without any harm befalling them before an injury was suffered by the plaintiffs. The court concluded that the cases defendant cited were "consistent with the most rational way of evaluating the effective unavoidability of a hazard where that hazard has been successfully avoided" - "the more frequently a hazard is traversed without harm, the more likely it is that the hazard is effectively avoidable." While the hazard here did not appear to have been faced by a great number of people over an extended period of time, the evidence showed that "the statistical fluke" was the injured plaintiff's fall, not the other speakers' safety. Thus, the court concluded that under the circumstances, the facts showed that the hazard was not effectively unavoidable. Reversed.

Injury in a City

The case below shows that if your lawyer is not thorough in their notice to a City of injury then the case may be dismissed forever.

Because the plaintiff's notice did not specify the exact location of the alleged defect within the meaning of MCL 691.1404(1), the court held that the notice was insufficient, plaintiff was not entitled to proceed against the defendant-City under the highway exception, and the City was entitled to governmental immunity as a matter of law.Thus, the trial court erred by denying the defendant-City's motion for summary disposition. Reversed and remanded for entry of judgment in favor the City. Plaintiff was walking in the City when he fell on a public sidewalk, sustaining injuries to his left leg. He alleged that he had tripped on a portion of the sidewalk that was cracked or uneven. He notified the City in writing that he had tripped on an allegedly defective sidewalk while "walking east on Huron Street" and that his injury had occurred at "35 Huron, Pontiac, Michigan." Plaintiff claimed that the City had failed to maintain the sidewalk in reasonable repair and that the sidewalk was unsafe for public travel. The City argued that plaintiff failed to comply with MCL 691.1404(1) because his notice was not sufficiently detailed. In particular, the City argued that the words "35 Huron, Pontiac, Michigan" did not sufficiently identify the exact location of plaintiff's alleged injury. The City contended that because there was both a 35 West Huron Street and a 35 East Huron Street, the language of the notice was ambiguous. The court held that plaintiff's notice did not specify whether the alleged defect was located at 35 West Huron Street or 35 East Huron Street, both of which were actual addresses in the City. Nor did his notice specify whether the alleged defect was located on the north side or south side of Huron Street. Nor was the photographic evidence provided by plaintiff in response to the City's motion for summary disposition sufficient to cure the insufficient notice. "The photographs were submitted more than 120 days after plaintiff's injury," thus it was improper for the trial court to consider them as part of plaintiff's notice. This was true even if the untimely submission of the photographs did not prejudice the City in any way.

Auto accident reimbursement

In the case below it appears that the injured party attempted to make up expenses, and the Judge properly denied his claim.

Holding that the plaintiff-Phillips failed to meet his burden under MCR 2.116(C)(10), the court affirmed the trial court's grant of summary disposition in favor of defendant-Auto-Owners. Phillips was injured in an accident when his motorcycle and an automobile collided. Auto-Owners was the insurer of the automobile involved in the accident, and since the accident has paid all the claims Phillips submitted for his medical expenses. However, Phillips filed a complaint against Auto-Owners alleging that Auto-Owners "has refused and neglected to pay a number of [Phillips'] benefits due under the no-fault law including medical and hospital expenses, wage loss benefits, medical mileage, and other benefits." Auto-Owners maintained that it paid all benefits that Phillips was entitled to receive. During his deposition, Phillips admitted that Auto-Owners paid every claim that he submitted, and that he had not communicated with any Auto-Owners representatives or employees as to the claims he maintained were not paid by Auto-Owners. As to his claim for "medical mileage," he admitted that he had not calculated the actual mileage for each of his medical appointments. He also claimed to have some receipts from prescription medications for which he was not reimbursed. However, he admitted he did not know the total dollar amount that he was claiming was owed to him for reimbursement. The receipts were not part of the trial court record and apparently were not presented to the trial court. "No other evidence was referenced during the deposition or presented to the trial court as to Phillips' remaining claims." He claimed that his deposition testimony created a genuine issue of material fact as to whether Auto-Owners failed in its obligations to pay allowable expenses pursuant to the No-Fault Act. However, the court concluded that "Phillips did not present any evidence to rebut Auto-Owner's deposition evidence" showing that he never submitted any claim to Auto-Owners that was not paid. The court held that it was clear that Auto-Owners never received reasonable proof of the fact and of the amount of loss sustained because a claim for the benefits was never submitted by Phillips. Thus, there was no evidence to support his representation that Auto-Owners refused to pay allowable expenses that it was liable for under the No-Fault Act, and summary disposition in favor of Auto-Owners was appropriate.

Medical Malpractice

When medical malpractice claim involves non medical employees, it must be determined if the violation required medical judgment before summary disposition is appropriate.

Concluding that the trial court acted prematurely in determining the nature of the plaintiff's claims without the benefit of discovery or other factual development, the court reversed the trial court's order granting the defendants' summary disposition motion on the basis that all of the claims arose solely in medical malpractice. Plaintiff filed a negligence action seeking damages for a double-mastectomy that was performed despite the fact that a biopsy revealed she did not have breast cancer. The complaint included "alternative allegations as to how the surgery went forward despite the negative biopsy finding, including a failure of clerical employees or medical employees to transmit and/or file the biopsy report as well as assertions that the surgeon conducted the surgery without requesting and/or reviewing the biopsy report." Plaintiff alleged that on 7/27/09, at age 34, she was seen by defendant-Maresca (a surgeon) for a suspicious lump in her left breast. The first amended complaint alleged that after conducting a physical exam, Maresca concluded that a fine needle aspiration biopsy should be conducted to determine if the lump was cancerous. She performed the fine needle aspiration and sent the resulting sample to the defendant-hospital's pathology department for analysis. Maresca allegedly told plaintiff at the office visit "that she believed the lump was cancerous and strongly recommended surgery as soon as possible." Maresca recommended a left breast mastectomy and, given the diagnosis, as well as plaintiff's family history, also recommended a prophylactic removal of the right breast. Plaintiff agreed to the procedures and surgery was scheduled for 8/5. Two days after the office visit and a week before the planned surgery, the specimen was analyzed by a pathologist in the hospital's pathology department. The pathologist's report stated that the specimen was not cancerous. The complaint alleged, inter alia, that "the results of the fine needle aspiration taken of the lump in plaintiff's left breast . . . was misfiled, misidentified, and/or otherwise not physically placed in plaintiff's medical or hospital chart prior to the mastectomy surgery." It also stated that "a copy [of the pathology report] . . . should have been sent, routed and/or otherwise made available to [Dr.] Maresca." Further, the complaint asserted that due to the hospital's "agents, servants and/or employees[']" failure to transmit the report and/or place it in plaintiff's file, Dr. Maresca remained unaware of the pathologist's findings and so proceeded with the surgery during which she removed both of plaintiff's breasts. The court noted that the Michigan Supreme Court made it clear in Bryant that "the issue of whether the claim sounds in medical malpractice or negligence is not to be resolved through generalized descriptions of the nature of the claim, but instead, by a specific review of the facts." The complaint "was necessarily drafted without access to proofs concerning which hospital employee was supposed to file the biopsy report, whether and when the report was actually filed, and whether it was seen by or available to the surgeon." Thus, it necessarily spoke broadly and encompassed both medical and non-medical personnel. Whether or not the persons "responsible for the alleged miscommunication were medical professionals or clerks, secretaries, or other non-medical personnel is not yet known, except perhaps to defendants." Further, "even if some or all the relevant actions or omissions were committed by medical professionals, it was similarly premature for the trial court to determine whether those actions or omissions involved medical judgment." Remanded.

Mold contamination and bleach

Bleach is not a very good idea for mold remediation or restoration for sewage, floods, etc. Bleach does not have much of a residual sanitizing effect on organic hazards. It is so toxic to some materials that when used liberally it can compromise the stability of load bearing walls and other construction products including metals. When mixed with other chemicals trhe consequences can be deadly, especially if mixed with ammonia. There are cost effective alternatives that have a true residual effectiveness on organic hazards. Below is an excerpt from Dr Shoemakers blog.

Why Restoration Professionals Should Avoid Using Bleach

There are many situations in which restoration professionals may think that use of bleach as a cleaner/sanitizer is effective. Indeed, there are certain restoration projects, such as sewage backflows, floods, and even mold remediation, where individuals have been taught to use bleach as part of their restoration protocol. This history is supported by continuing references in publications put out by numerous organizations including the EPA, American Red Cross, Salvation Army and others. The use of bleach as a “disinfectant” seemed to reach new heights over the past few months as semi-truckloads of the chemical were donated for disaster relief efforts in the Gulf states following hurricanes Katrina and Rita.

Despite this surge in bleach use for restoration of water-damaged and mold-impacted environments, I have one thing to say about the situation: Professional restoration contractors should not be using bleach for cleaning, sanitizing, or disinfecting surfaces! Of course this opinion comes with a few caveats: I do not have any financial or management interest in a chemical company that manufactures bleach or alternative chemical products. I have never been seriously injured by bleach in a personal or industrial accident. I use bleach for my laundry and a bleach derivative for sanitizing my swimming pool water.

So the question that is obvious is, Why is this environmental engineer so adamant about contractors not using bleach? The answer is related to both practical and legal implications for restoration professionals.

Practical Considerations
Let’s start with the practical considerations. Bleach is favored by many because of its long history of use by homeowners for cleaning and stain removal. Its relatively low cost has made it so widely available that its odor is now commonly associated with cleanliness by the general public. But in contrast to this widespread use are its dangers. Bleach is a corrosive that can irritate and eventually cause considerable damage to the skin. Bleach releases chlorine gas as it is sprayed or evaporates. The effect of bleach vapors on the eyes and respiratory system are immediately evident to anyone who is in an area where the product is being used liberally. Because of these potential effects on the body, appropriate personal protective equipment such as gloves, goggles, and respirators should be employed when bleach is utilized for situations beyond laundry. However, such essential precautions are often ignored because of the product’s acceptance in the mainstream of our society.

There are many practical impacts of bleach use beyond health concerns. Restoration professionals must appreciate the highly reactive nature of this chemical compound. The fact that bleach is used for stain removal and whitening means that it can also discolor and damage many fabrics. Less obvious is how bleach reacts with other materials. It is corrosive to many metals and stone products. It should never be used on stainless steel, aluminum, copper, brass, marble, or granite. In fact, bleach is so strong that it will etch glass if it is not neutralized after application to surfaces such as mirrors and windows. In New Orleans I observed how bleach solution had significantly corroded electrical components and anchoring bolts for load-bearing walls after less than 24 hours in a house where the drywall had been stripped due to flooding. In that particular case, the builder had been given bleach to use as a sanitizer and had sprayed it undiluted on all of the exposed studs and other building components.

A Bad Reaction
The reactive nature of bleach is even more troublesome when it is mixed. Bleach should never be mixed with acids, as dangerous fumes are usually the result. Even a mixture of two innocuous cleaning compounds such as bleach and ammonia can produce deadly gasses that can kill with just a few breaths. Depending on the ratio of bleach to ammonia, chlorine gas, nitrogen trichloride and/or hydrazine will be produced when these two are mixed. In addition to being toxic the last two listed by-products from this bleach mixture are also explosive. Other reactive by-products that can come from bleach mixtures are toxic chloramines and dioxins. With all of these potential “side effects” a restoration professional is taking a significant chance when bleach or a bleach solution is applied to varied materials in an uncontrolled environment – exactly the situation that occurs when bleach is sprayed following a sewage loss or fire.

Perhaps the most misunderstood aspect of bleach when proposed as a cleaner or sanitizing agent is that its effectiveness is greatly reduced in the presence of organic material. To be a successful sanitizer, bleach must be used on clean materials and surfaces. This is why bleach products are used in the laundry after the wash cycle or in a commercial kitchen as a component in the third sink after the dishes have been washed and rinsed. The efficacy of bleach as a sanitizer is also compromised by heat and light. Despite the fact that the chlorine odor may linger for some time after use, bleach loses strength so quickly that it is not considered to have a residual effect that would prevent future bacterial or fungal growth.

The last, but by no means the least, issue related to the practicality of bleach for restoration projects is that many alternatives are readily available for contractors that need to incorporate a level of sanitization into their cleaning or restoration activities. These products are specifically developed for restoration projects such as sewage clean-up or mold remediation. They have been tested for the sorts of conditions and contaminants that the contractor faces rather than testing as a laundry additive. In areas where potable water is a concern, there are many
formulations that are ready to use, avoiding the dilemma of having to use the product full strength or mixing it with contaminated water. In addition to their cost effectiveness and ease of use, many sanitizing products developed for the restoration industry have a true residual effect which prevents bacterial or fungal regrowth.

The Trap of Label Directions
If the practical reasons are not enough to change a contractor’s habits away from bleach, the legal ramifications should be. Most bleach products are not registered with the EPA as an antimicrobial. In addition, the label directions for bleach often only mention a sanitizing capability for hard non-porous surfaces. As such, using a bleach solution to minimize antimicrobial activity on carpets, drywall, wooden studs, or other common building components means that the restoration contractor is engaged in an “off label” utilization of the product. Under such conditions the manufacturer will not warrant or assist the contractor if a problem or dispute arises.

So there you have it. Bleach is cheap, convenient, and recommended to a lot of homeowners for various restoration activities, but it is not the best choice for a contractor. As a restoration professional you have an obligation to understand what the standard of care in your industry demands and provide a quality service to your client. This means using the right tools and products. So leave the bleach at home for the load of white laundry where it belongs.

About the Author
Michael A. Pinto currently serves as Chief Executive Officer of Wonder Makers Environmental, Inc. He has more than 30 years of safety and environmental experience from jobs in the private sector, the non-profit arena, and regulatory agencies. Michael is the author of five books, including Fungal Contamination: A Comprehensive Guide for Remediation, over 150 published articles, and 18 commercial training programs. He can be reached at map@wondermakers.com.

Nursing Malpractice

If you are a nurse supervising other nurses, that counts as engaging in the practice of nursing for the purpose of determining whether you can testify to the standard of care as an expert in Michigan.

The court held that the plaintiff-PR's proposed nursing expert (B) spent significantly more than 50% of her professional time in the active clinical practice of nursing or instructing nursing students and that the trial court erred when it determined that B did not meet the qualifications stated under § 2169(1). Because B was qualified to testify about the SOC, the trial court also erred when it dismissed the PR's claim on the ground that she did not have an expert to establish the SOC for the malpractice claim. The decedent-Wright was admitted to defendant-Select Specialty Hospital to treat her rheumatoid arthritis, including associated rheumatoid lung disease. She responded well to the treatments and, on Thursday, learned that she would be discharged from the hospital on the following Monday. However, the next day a nurse assisted Wright to a commode, but left her unattended. Wright reached for her ringing phone and fell from the commode. She injured her head, fractured her shoulder, and died two days later. The PR alleged that the fall was a direct and proximate result of the hospital's nursing staff's negligence and that the fall ultimately led to Wright's death. The PR retained B to offer an expert opinion about the applicable SOC. However, after the hospital deposed B, it moved to strike her as a witness and dismiss the case. The hospital argued that B could not testify about the applicable SOC because she did not meet the professional time requirement stated under § 2169(1)(b). The hospital presented B's deposition testimony in which it claimed she admitted that she spent the majority of her professional time serving as an administrator. Also, because the time limit for adding witnesses had passed, the hospital argued that the PR should be precluded from adding an expert to testify as to the applicable SOC. The hospital further maintained that the trial court had to dismiss the suit because the PR would not be able to establish this element of its claim. The trial court determined that B did not spend any portion of her professional time in either the active clinical practice of nursing or in the instruction of nurses at an accredited health professional school, an accredited residency, or a clinical research program. However, "the trial court made this determination despite the fact that there was plain - and unrebutted - evidence" that B "engaged in both the active clinical practice of nursing and instructed nurses at an accredited residency or clinical research program." The trial court apparently disregarded an aspect of B's professional work because she supervised the orientation of nurses and was not directly involved in the care of patients. "But the Legislature did not impose any such requirement. Rather, the Legislature provided that a witness might testify as an expert if he or she spent the majority of his or her time in the 'active clinical practice.'" Since the Legislature did not define the phrase "active clinical practice," it must be given its ordinary meaning. The key question was whether B was actively engaged in the nursing profession in a clinical setting. B testified that she spent 25% of her professional time orienting nurses to their units. The "act of orienting nurses within a hospital involves some degree of explaining, coordinating, and instructing nurses as to the proper care of their patients. And explaining, coordinating and instructing nurses about the proper care of patients in a clinical setting necessarily involves - albeit indirectly - the treatment of patients." Thus, it was undisputed that B spent 25% of her professional time engaged in the "active clinical practice" of nursing. Further, B unequivocally testified that she took an active role in the care of patients while orienting nurses. B also testified that she spent 50% of her professional time teaching at the hospital, which she averred was accredited as a residency program. This, coupled with her time engaged in the active clinical practice of nursing, clearly constituted more than 50% of her professional time and thus, met the professional time requirement stated under § 2169(1)(b). Reversed and remanded.

Auto accident, a jury should hear the evidence

Whether someone acted negligently when driving is generally a question for the trier of fact.

The court held that genuine issues of material fact precluded summary disposition as to whether defendant-Cooley's actions after he realized he had driven beyond the driveway into which he wished to turn and defendant-Quinn's actions in slowing or stopping in the travel lane of the road were reasonable under the circumstances. Thus, the court reversed the trial court's order granting them summary disposition and remanded for further proceedings. The case arose from a motor vehicle accident on a curved portion of a two-lane highway with a "substantial" paved shoulder. The weather at the time of the accident was clear and sunny, and the road was dry. The plaintiff-PR's decedent was driving her motorcycle northbound on the road. A succession of three vehicles was driving southbound on the road - a truck driver by Cooley, a van driven by Quinn, and a truck driven by defendant-Adams. After Cooley missed a right turn into a driveway, he pulled his truck onto the shoulder of the road. Seeing him slowing and pulling to the side of the road, Quinn either slowed her van or stopped it completely in the roadway or partially on the shoulder of the roadway. "In an effort to avoid colliding with Quinn, who he perceived to be stopped in the southbound lane of the roadway as he rounded a sweeping curve," Adams drove his truck across the double yellow center line into the northbound lane, colliding with the decedent's motorcycle and causing her death. Adams and his father (the owner of the truck) reached a settlement with plaintiff and were dismissed from the case. Cooley and Quinn successfully moved for summary disposition. Quinn argued that reasonable minds could not conclude that she acted negligently, and that her conduct was appropriate and reasonable. Cooley argued that the evidence did not show that he breached any applicable duty or that his truck was a proximate cause of the decedent's death. The court noted that like Adams, Cooley and Quinn "had a duty to operate their vehicles with the degree of ‘reasonable care that would be exercised by a person of ordinary prudence under all the existing circumstance,'" and "in the manner prescribed by the motor vehicle code." In determining that there was no question of material fact that Cooley and Quinn fulfilled this duty, "the trial court impermissibly resolved questions of fact and determined the credibility of witnesses." The court concluded that viewing the evidence in the light most favorable to plaintiff, there were questions of material fact as to "whether Cooley and Quinn operated their vehicles in a nonngeligent manner in the moments immediately preceding the accident." To determine if either Cooley or Quinn acted negligently, the trier of fact had to resolve outstanding issues as to the manner in which Cooley operated his truck upon passing the driveway and whether he pulled completely onto the shoulder of the road or remained in the travel lane, and whether Quinn appropriately stopped or slowed in the travel lane when approaching his truck. The court concluded that competent evidence was presented "from which it could be inferred that Cooley made a sudden or abrupt stop and/or that he was not completely off the travelled portion of the roadway when Quinn came upon his vehicle." There was also evidence from which a jury could find that Quinn responded to the presence of Cooley's truck other than by "‘easily slow[ing] her vehicle,'" and that the degree of her response was not warranted by the circumstances.

Auto accident from prior accident

If you have an accident because of injuries from a prior accident, the no-fault insurer of the first accident still is liable to provide coverage for you injuries in the second accident.

Viewing the evidence in the light most favorable to plaintiff-Ian, the court held that sufficient evidence established a question of fact as to whether the 2008 motorcycle crash "originated from," "had its origin in," "grew out of," or "flowed from" the 2007 car accident. Thus, the court held that the trial court properly ruled that fact questions precluded summary disposition in the defendant-Progressive's favor. In 11/07, Ian rode as a passenger in a car driven by his brother, defendant-Christopher. Christopher lost control of the vehicle and it struck a freeway guardrail. Ian's head struck a deployed airbag. According to Dr. A, Ian suffered a grand mal seizure triggered by the head injury and his ingestion of Adderal, a prescribed amphetamine. A opined that Ian also probably has an "underlying genetic predisposition" to seizures. After hospitalization for treatment of the initial seizure, Ian received follow-up neurological care from Dr. S, an epilepsy specialist. Progressive was responsible for paying no-fault benefits related to the 2007 accident. In 9/08, while riding his motorcycle Ian "sort of had the same feeling I had from my first seizure, and then I didn't have enough time to pull over or anything. Before I knew it, I just kind of blacked out." His motorcycle crossed four lanes of traffic and struck a parked car. He suffered severe injuries in the 2008 accident, including ventilator-dependent quadriplegia. Ian submitted to Progressive a first-party, no-fault benefits claim arising from the motorcycle crash. It denied coverage, asserting that his claim related only to the 2008 accident and that he forfeited any entitlement to benefits because he neglected to insure the motorcycle. However, the accident for which Ian sought first-party no-fault benefits occurred in 11/07. He contended that his current injuries, including his seizure disorder, arose from his brother's operation of the insured motor vehicle that struck the guardrail. Drs. S and A unequivocally connected Ian's seizure disorder to the trauma he experienced when his head collided with the air bag. "This evidence could support a jury's reasonable conclusion that Ian's 2008 bodily injuries arose from Christopher's operation of the vehicle involved in the 2007 crash. Alternatively stated, the connection between Ian's injuries and the 2007 accident 'is not so remote or attenuated as to preclude a finding that it arose out of the use of a motor vehicle.'" The evidence reasonably supported that "the causal connection between the injury and the use of the motor vehicle was more than incidental, fortuitous, or 'but for.'" The court rejected Progressive's argument that the motorcycle accident constituted a separate and superseding cause of Ian's spinal cord injury, supplanting any relationship between the first accident and the second. "Had Ian injured his spinal cord in 2008 by falling from a ladder during a seizure, Progressive would potentially bear liability. That Ian instead suffered a seizure while riding a motorcycle does not, standing alone, eliminate any connection between his 2007 head injury and the 2008 events." Ian established a triable issue of fact whether his spinal injuries arose from Christopher's operation of the vehicle involved in the 2007 accident. While it was indisputable that the motorcycle accident constituted the most proximate cause of Ian's spinal cord injury, he asserted that his quadriplegia "arose out of" Christopher's operation of a motor vehicle. He based his benefit claim solely on the 2007 accident. Thus, the issue was whether any evidence supported that his quadriplegia arose from that accident. Evidence supported that the first accident bore a "connective relationship" with the second. Affirmed.

If a subcontractor improperly installs something and someone is injured as a result, the subcontractor cannot get out of liability by saying they were just working for the general contractor.


In this consolidated appeal, the court held that based on the Michigan Supreme Court's recent decision in Loweke, the defendant-JCS Fireplace was not entitled to summary disposition. Thus, the court reversed the trial court's order granting JCS Fireplace summary disposition. Plaintiff-Burns lost his home to a fire caused by an improperly installed fireplace on the lower level of his home. He contracted with the original builder, defendant-KW Yoder Construction, to rebuild the home. Yoder subcontracted the fireplace installation to JCS Fireplace. The newly constructed home was destroyed by fire. "An investigation revealed the cause of the fire to be heat generated by the first floor fireplace, with the fire originating within the wood hearth extension of that fireplace." Burns and plaintiff-United Services Automobile Association Casualty Insurance Company (his insurer) sued Yoder and JCS Fireplace. JCS Fireplace successfully moved for summary disposition, arguing that plaintiffs' claims sounded strictly in negligence and, in keeping with Fultz, it owed no duty to plaintiffs. In granting JCS Fireplace's motion for summary disposition, the trial court explained that the only reason it did so was because Fultz compelled this result. In Loweke, the Supreme Court adopted the reasoning of Davis and held "'that a contracting party's assumption of contractual obligations does not extinguish or limit separately existing common-law or statutory tort duties owed to noncontracting third parties in the performance of the contract.'" While the court would normally remand for the trial court to reconsider the motion in light of Loweke, it concluded it was clear that, had the trial court not felt compelled to follow what it perceived to be a conclusion necessitated by Fultz, it would have applied the Davis reasoning and denied JCS Fireplace's motion. Reversed and remanded.

Slip and fall on ice

If the snow or ice is visible to a casual observer there is not case against the property owner, and everyone has a duty to watch where they step. Even if the ice cannoit be seen, the property owner must somehow be on notice that it is there to be held responsible for slip and fall injury. In the following case, the lawyer did not present the appropriate evidence.

The court concluded that the evidence created a fact question as to whether an average person of ordinary intelligence would have been able to discover the danger (ice in a parking lot) and risk upon casual inspection. However, the court agreed with the defendant that the plaintiff failed to present any evidence that defendant had actual or constructive notice of the icy condition. Thus, the court reversed the trial court's order denying defendant's summary disposition motion and remanded for entry of summary disposition in defendant's favor. Plaintiff was employed by a contractor to defendant and worked the night shift (11:00 PM to 7:00 AM) on defendant's premises. On 12/12/07, as part of his usual practice when arriving for work, he parked his car in the first parking spot in the first row because the building parking lot was empty at night. "After parking, plaintiff walked diagonally across the parking lot directly to the rear entrance of the building. He did not see or encounter any ice or slippery conditions on his way to the building." About two hours after arriving for work, he left the building either to smoke a cigarette or for something to do with his lunch pail (which he kept in his car). While he was walking back to the building, he slipped and fell to the ground. He was still in the parking lot, somewhere between 10 to 15 feet from his car. "Only after falling did plaintiff feel ‘wet and ice' and realize that he had slipped on ice." While the defendant argued on appeal that it was not liable for any of plaintiff's injuries because there was no question of fact that the danger was open and obvious, the court disagreed. Only two witnesses testified as to the patch of ice. "Both witnesses agreed that the parking lot was free from snow. Plaintiff testified that he did not see the ice even though he had walked through that same area at least twice earlier that night." A security employee of defendant (D) "testified that he saw the ice patch 'as we were walking out there' when plaintiff was leading him to the ice." However, the court noted that D "was walking out to the parking lot with the sole purpose of investigating plaintiff's reported fall." Thus, looking at D's testimony in a light most favorable to plaintiff, it was easy to conclude that D "was not merely casually, or in an offhand manner, inspecting the premises - instead, a logical inference is that he was actively looking for ice to see what caused plaintiff's fall." The court could not conclude that defendant was entitled to summary disposition on the basis the hazard was open and obvious. However, as to notice, while plaintiff tried to show that (1) defendant negligently caused the formation of the ice patch by the way it salts the parking lots and (2) the sheer size of the patch (8 to 10 feet) was enough to put it on notice, the court found both arguments unpersuasive. The driver who applies salt to the lots admitted that his method of salting when the lot is full of cars prevented the immediate areas on the sides of the parked vehicles from receiving any salt. However, the record showed that after snow fell on the afternoon of 12/11/07, the contractor salted the aisles of the full parking lot and returned later that night when the lot was empty to fully plow and salt the entire lot. Plaintiff also failed to show that the ice formed in a spot that normally would be unsalted during a daytime salting. As to the size of the patch, since no one knew how long it was present, there was no evidence that defendant or its salting contractor had actual or constructive notice of the ice patch.

Auto accident drunk driving

In this case the attorney filed the wrong law suit and the client lost their case. The lawyer you choose is very important.

Concluding that intoxication could not be removed as the key factor from the common law negligence claim asserted by the plaintiff-estate, and that the trial court properly determined that the estate's claim fell within the Dramshop Act, the court affirmed that trial court's order granting summary disposition in favor of the defendants. The estate's decedent and two friends were patrons at the defendant-bar and grill. The decedent and her friends were asked to leave after they became visibly intoxicated. They left the premises without the decedent's car keys. An unidentified bar employee later found the keys. When the decedent and her friends, still visibly intoxicated, returned to the bar to find her keys, the bar employee returned the keys. The decedent drove away from the premises, lost control of her vehicle, and was involved in a fatal accident. The estate claimed that the action was based in negligence because it was related to defendants' conduct of giving car keys to an intoxicated person, not to the actual selling, giving or furnishing of alcohol. However, the court concluded that any analysis of this claim hinged "on the duty that a dram shop that provided the intoxicants owed to the visibly intoxicated person." If intoxication was not considered in this claim, then the question became - "is there a common law duty to refrain from returning keys to the vehicle's lawful owner. It is axiomatic that there is no duty to withhold keys from an unintoxicated owner of a vehicle."

Slip Fall

When giving notice to a governmental agency you must be very specific or your case may be dismissed.

Holding that the plaintiff did not sufficiently clarify the exact location of the pothole until after the statutory notice period expired, the court concluded that the trial court was bound to dismiss her claim. Thus, the court reversed the trial court's order denying the defendant-City's summary disposition motion and remanded for entry of summary disposition in the City's favor. Plaintiff left a saloon located on Michigan Avenue in the City and walked to the side of the building, which faces St. Lawrence Street. She turned onto St. Lawrence, where she had parked her vehicle, tripped on a pothole in the St. Lawrence Street roadway, and broke her ankle. She submitted written notice to the City about her injury 17 days after her accident, describing the site as "a defective street located in front of" the saloon. She also enclosed photos depicting the defect. Plaintiff sued the City 137 days after her accident, asserting that her claim fell within the highway exception to governmental immunity. She alleged that she was injured while walking on the public sidewalk at or near the saloon when "she tripped over a defective sidewalk/pavement." Plaintiff did not specify that the pothole was on St. Lawrence Street until her deposition 228 days after her accident. The court noted that she misidentified the defect's location in her initial notice and thus, clearly did not provide a "specific description of the location." This rendered her notice defective. Further, the complaint was filed outside the 120-day notice period, so plaintiff could not rectify the deficiency of her initial notice via the complaint. The complaint also did not provide an accurate "exact location" for the alleged defect, since the complaint asserted that plaintiff tripped on a sidewalk, not the roadway, and described the location as at or near the saloon on Michigan Avenue. "The City had no notice that the pothole was actually located on St. Lawrence Street, rather than on Michigan Avenue or an adjacent sidewalk, until" plaintiff's deposition, which was conducted 108 days after the statutory notice period expired. "Absent the requisite notice, the City was immune from liability and plaintiff was precluded from seeking judicial relief." The court rejected her argument that the photos provided to the City with her initial notice sufficiently supplemented her written description to specify the exact location of the defect. One photo depicted a pothole on a side street very near the intersection with a main highway, but it did not include a street sign or any other identifying feature. There was no way to determine the name of the street on which the pothole was located from the photo. A second photo depicted the sign in front of the saloon, but did "nothing to delineate the name of the side street on which the pothole is located." The third photo depicted "a focused view of the pothole alone." While it was useful in specifying the exact nature of the defect, it did nothing to "specify the exact location."

Car accident Ambulance

Ambulance's have to be careful too. This ambulance sped through an intersection and caused an accident.

Rejecting the defendant-City's argument that the accident did not "result from" the defendant-ambulance driver's (Lewis) alleged negligence because the plaintiff's vehicle struck the ambulance, rather than vice versa, the court concluded that the trial court properly denied the City summary disposition on this basis. Further, the court held that the trial court properly determined that there was an issue of fact for trial as to whether Lewis operated the ambulance within the statutory SOC governing the operation of emergency vehicles. Thus, the court affirmed the trial court's order denying the City summary disposition. Lewis was dispatched regarding a domestic situation and traveling southbound in a residential neighborhood. "When he slowed the ambulance at an intersection, he saw plaintiff's vehicle traveling westbound on the cross street." He proceeded through the intersection without coming to a complete stop, believing there was enough distance between the vehicles for plaintiff to stop before hitting the ambulance. However, when the front of the ambulance was halfway through the intersection, "Lewis noticed that plaintiff was not attempting to stop. He then accelerated, hoping to quickly pass through the intersection and avoid a collision, but the front of plaintiff's vehicle struck the rear of the ambulance." Plaintiff asserted that she first saw the ambulance just after it entered the intersection, she tried to stop but was unable to do so, and slid into the rear of the ambulance. The court concluded that the City's "result from" argument stemmed from "an overly narrow reading" of Robinson and Curtis. "In neither Robinson nor Curtis were the government vehicles physically involved in the collisions. Thus, defendant's reliance on those decisions as attaching any significance to which vehicle struck the other is misplaced." Further, the City's argument was "at odds with the plain statutory language stating that government agencies are liable for injuries ‘resulting from' the negligent operation of a government vehicle. MCL 691.1405 makes no distinction between which vehicle strikes the other." The City also argued that MCL 691.1405 did not apply because Lewis operated the ambulance in accordance with the SOC governing the operation of emergency vehicles. While the plaintiff contended that the court lacked jurisdiction to decide this issue, the court held that it had jurisdiction because the effect of the trial court's ruling was to deny the City's governmental immunity claim. The court concluded that "MCL 257.603 and MCL 257.706(d), when read together, require that an emergency vehicle's siren be activated only when reasonably necessary to warn others of the vehicle's approach." Thus, whether Lewis activated the siren was not dispositive of whether he operated the ambulance within the statutory SOC. "Rather, the issue is whether Lewis activated the siren when its use was reasonably necessary under the circumstances." A rational jury could find, based on plaintiff's version of events, that the circumstances warranted use of the siren because she did not see the ambulance until she was unable to stop. On the other hand, a rational jury could find, based on Lewis's recollection of events, that activating the siren was unnecessary because plaintiff had time to stop but failed to slow down before striking the ambulance

Mold exposure cleanup safety

This is a basic guide to cleanup of mold. A professional in mold clean up should be consulted for proper clean up.

1. Set up initial engineering controls, including isolation barriers, negative pressure system, and drop cloths necessary to protect the structure during initial response activities.

2. Remove standing water.

3. Assess condition of contents, set up appropriate decontamination structure, and remove contents from the mold remediation work area.


4. Finalize engineering controls for removal of building materials harboring fungal growth. Make sure the setup can accommodate any unexpected hidden growth.

5. Work with the air flow. Generally this means that the project should be set up so that mold impacted materials closest to the decontamination unit are removed first. Work then progresses from the decon unit toward the negative air machine.

6. Remove porous materials with visible growth. Use work practices that minimize the generation of dust. This may include the use of hand tools or power tools to which a HEPA vacuum can be attached.

7. Enforce work procedures that emphasize a clean-as-you-go approach. Whenever possible, as they are removed from walls and ceilings, cut building materials in sections small enough to fit directly into waste bags. Bag all waste immediately rather than allowing it to pile up on the floor. Change negative air machine and vacuum filters often enough to keep them operating at optimum levels.

8. Seal waste bags using the gooseneck technique. Move waste bags into the decontamination unit where the exteriors of the bags are cleaned or they are double bagged prior to movement through unprotected areas of the building.

9. Determine the remediation approach for semi-porous materials that have visible fungal growth. Depending on the condition of the material some items, such as rotted wood studs, may have to be removed for later replacement. Other semi-porous materials that have not suffered structural damage can be cleaned by scraping, sanding, scrubbing, or blasting. Whenever possible, use tools in conjunction with a HEPA vacuum. Specialty tools, such as the Scravac, are specifically designed for scraping contamination directly into a vacuum nozzle. Make sure that the cleaning technique does not exceed the capacity of the engineering controls. Blasting, for example, may require a substantial increase in the amount of negative pressure and airflow as compared to a standard mold remediation work area.

10. Clean all non-porous materials that have visible fungal growth. This usually involves damp wiping or HEPA vacuuming.

11. Using the HEPA sandwich technique, clean the entire isolated work area, including ceilings and non-impacted walls. If there are any bacterial concerns because of gray or black water, incorporate appropriate antimicrobial chemicals into the damp wiping step.
12. If necessary, dry the remaining material in the work area through dehumidification. Be careful that airflow from fans and dehumidifiers does not impact the integrity of the isolation barriers.

13. Conduct a thorough visual inspection of the isolated work area. Use the white glove test to ensure that the area is free of dust. Re-clean as necessary.

14. Conduct post-remediation evaluation sampling. Compare the results to the company's standards for mold remediation (see box for suggested post-remediation sample criteria). Re-clean and re-sample if necessary.

15. Coordinate post-remediation verification sampling by a pre-selected third party. Evaluate the results in comparison to the criteria that were agreed upon at the beginning of the project (see box for suggested post-remediation sample criteria). Re-clean and re-sample if necessary. If the building owner chooses to forgo verification sampling, move to the next step.

16. If included as part of the remediation project, apply antimicrobial coating to exposed structural members to prevent future mold contamination. Follow the manufacturer's instructions for application. Allow all surfaces to dry thoroughly.

17. Have the HVAC system cleaned following NADCA guidelines.

18. If included as part of the project, replace and refinish building materials that were removed during remediation.

19. Remove isolation barriers and remediation equipment. Unless specifically exempted in the remediation contract, repair any damage to finish materials caused by the isolation barriers