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.
Friday, March 30, 2012
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.
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."
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.
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.
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.
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.
Friday, March 9, 2012
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.
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.
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.
Monday, March 5, 2012
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.
"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.
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