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.
Tuesday, April 24, 2012
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.
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
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.
, 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.
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.
Subscribe to:
Comments (Atom)