A. Vince Colella
Moss &?Colella, P.C.
For more than two decades, personal injury lawyers have been sharply critical of the judiciary; especially the Michigan Supreme Court while under the influence of its Chief Justice, Robert P. Young, Jr. (1998-2017). However, a new breed of judges elevated to the bench over the last several years have shown an earnest proclivity for justice and staunch opposition to judicial politics. The current makeup of the Supreme Court is chock full of academics, scholars and litigators who have demonstrated a healthy respect for the rule of law (and each other). Recently, the Court has heard several cases that may paint a prescient portrait of the future of personal injury law in the areas of general negligence, medical malpractice, premises liability and government immunity. These decisions, and underlying analysis of draconian opinions of the past, have created a genuine, but always cautious, optimism in Michigan trial lawyers. It’s an optimism that has been absent since the dreadful passing of the Revised Judicature Act in 1995.
This past December, the Court heard oral argument in Rowland v Independence Vill. Of Oxford, LLC., 507 Mich 890 (2020) to determine whether the test for assessing foreseeability of harm (an otherwise elusive element to prove) is being properly applied. Virginia Kermath was a resident of a senior living facility who suffered frost bite and hypothermia when she wandered out of the facility in below freezing temperatures without her keys, subsequently becoming locked out. Granting oral argument, the court emphasized several key issues it wished the parties to address, including whether (1) the factual circumstances were analyzed objectively, (2) a special relationship existed and (3) if the common law duty required the monitoring and securing of the building. Id. at 487. The answer to these questions may prompt the expansion of the duty to protect against dangers far less obvious than a vulnerable adult unexpectedly leaving her assisted living home.
The high court has also seen fit to potentially weigh in on the fine line between medical malpractice and ordinary negligence, a perpetually daunting dilemma for trial lawyers. In January, the court heard oral argument in the case of Meyers v Rieck, 507 Mich 958 (2021) to determine whether the failure of a nurse to comply with a standing order that directs nursing staff to immediately report to a physician when a patient experiences more than one episode of vomiting within 24 hours constitutes medical malpractice (subject to notice mandates, expert witness requirements and caps on damages) or negligence.
This case is significant because courts routinely find in favor of malpractice where the injury arose in the context of a professional relationship, as opposed to looking carefully at the nature of the conduct and whether it was a question of medical judgment. All too often, Michigan courts have refused to consider whether the actions and decisions of the health care worker(s) were within the realm of common knowledge and experience.
Of course, the denial of an application for leave can also be telling. In West v Dep’t of Natural Res., 2022 Mich LEXIS 173 (January 28, 2022), the Court was asked to consider whether a snowmobile was a “motor vehicle” for purposes of MCL 691.1405 (the motor vehicle exception to governmental immunity), after the Court of Appeals issued a published opinion, affirming the Court of Claims, that indeed a snowmobile does qualify. Justice Zahra issued the sole dissenting opinion (“…the dissimilarities between a snowmobile and an automobile, truck or bus far outweigh the similarities between the conveyances.”) Hence, the Court had the opportunity to narrowly construe the definition of a motor vehicle to exempt snowmobiles but opted instead to abstain.
Perhaps the most anticipated case before the court is a challenge to the longstanding ‘open and obvious” danger doctrine introduced in Lugo v Ameritech Corp., 464 Mich 512 (2001). Lugo may be the most impactful premises liability decision in Michigan jurisprudence. Over the past 21 years, it is hard to argue that any case has been more responsible for the suppression and dismissal of cases than Lugo. However, in February the Supreme Court granted oral argument in Ahlam v Kandlil-Elsayed v F & E Oil, Inc., 2022 Mich LEXIS 327 (February 4, 2022).
In its order, the Court expressed a keen interest in deciding: “whether [Lugo] is consistent with Michigan’s comparative negligence framework; and if not, which approach [the] Court should adopt for analyzing premises liability cases under [that] framework.” Id. at 70. The question itself is provocative and suggests that Lugo (and its progeny) may be in jeopardy, especially since this rather innocuous appellate decision involved the question of “effective unavoidability” of snow-covered ice — which has been the subject of dozens of other cases.
While the outcome remains to be seen, the selection of this case to question the “consistency” of the Lugo decision suggests that a reversal may be on the horizon.
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A. Vince Colella is a co-founder of personal injury and civil rights law firm Moss & Colella.
