Annual Review Of Case Law

This edition contains our annual review of significant cases from the Michigan courts. A number of Michigan trial courts invalidated the caps on damage awards set forth in the tort reform legislation of 1996. The Michigan Supreme Court also made significant rulings concerning exceptions to the governmental immunity statute and concerning the constructive notice requirement in premises liability actions.

In 1996, the Michigan legislature passed several tort reform measures which set caps on non-economic loss (damages or loss due to pain and suffering or physical impairment or disfigurement) in medical malpractice and product liability actions. See M.C.L. ¤ 600.1483 and ¤ 600.2946a. Essentially, these provisions capped damages for non-economic loss at $280,000 (or $500,000 for death due to a product defect or for permanent loss of a vital bodily function due to a product defect or medical malpractice).

Over the past year, several Michigan trial courts have declared these caps either inapplicable or unconstitutional. Specifically, trial courts in Tumpkin v. Roura Iron Works (Wayne County) and Strzelicki v. Daimler-Chrysler Corporation (Presque Isle County) found that the caps on damages in products liability claims set forth in M.C.L. ¤ 600.2946a are unconstitutional because they violate the right to trial by jury.

Similarly, the court in Estate of Preston v. Sinai Hospital (Wayne County) found that the cap on non-economic damages in medical malpractice cases (M.C.L. ¤ 600.1483) violates the equal protection clause by infringing on the right to a jury trial. In Milicia v. ChildrenÕs Hospital of Michigan (Wayne County) the trial judge found that the non-economic damages cap in ¤ 1483 could not apply to a wrongful death action even though it was based on a medical malpractice claim.

The Michigan appellate courts will likely address the caps on damages in the coming years.

The Michigan Supreme Court considered several cases in 2000 concerning the highway exception to the governmental immunity statute. This exception requires that the government agency having jurisdiction over a highway shall maintain it in reasonable repair, and permits persons injured due to the governmentÕs failure to maintain or repair the highway to recover damages. M.C.L. ¤ 691.1402(1). The definition of "highway" includes sidewalks on any highway, but does not include utility poles. ¤ 691.1401(e).

The Michigan Supreme Court considered whether a paved bicycle path on which a bicyclist was injured when his tire struck a hole was included as a sidewalk under the statute. Hatch v. Grand Haven Charter Twp., 461 Mich. 457, 606 N.W.2d 633 (2000). Despite the fact that the eight-foot-wide bicycle path was within the 100-foot right-of way of a highway, the Supreme Court found that it was not a sidewalk, and denied relief to the injured plaintiff.

In Nawrocki v. Macomb County Road CommÕn, 463 Mich. 143, 615 N.W.2d 702 (2000)(consolidated on appeal with Evens v. Shiawassee County Road CommÕrs), the Supreme Court again considered the scope of the highway exception to the governmental immunity statute. A motorist injured in a collision brought a negligence action against the Shiawassee County Road Commission, alleging the commission breached a duty to install additional stop signs or traffic signals at an intersection.

The Supreme Court held that the "highway exception" does not impose a duty to install, maintain, repair or improve traffic control devices. Id. at 151. Instead, the state and county road commissions' duty is limited to repairing and maintaining the improved portion of the highway designed for vehicular travel. Id. at 152.

In reaching its decision in Nawrocki, the Court expressly overruled Pick v. Szymczak, 451 Mich. 607, 548 N.W.2d 603 (1996), in which it had held that governmental agencies had a duty to provide traffic control devices or warning signs at points of special hazard.

The Michigan Supreme Court has also reinterpreted the law concerning government immunity in police chase cases. See Robinson v. City of Detroit, 462 Mich. 439, 613 N.W.2d 307 (2000). In Robinson, the Court found that police officers "owe a duty to innocent passengers and pedestrians but not to passengers who are engaged in encouraging or abetting the fleeing." Id. at 469.

The Robinson court also found that governmental immunity protected an individual police officer from liability "unless the employee's conduct amounts to gross negligence that is the one most immediate, efficient, and direct cause of the injury or damage, i.e., the proximate cause." Id. at 462. As a result, an innocent plaintiff may not recover under the motor vehicle exception to governmental immunity unless he can prove that his injuries were caused when the police (1) hit the fleeing car, (2) caused another vehicle or object to hit the fleeing car, or (3) forced the fleeing car off the road or into another vehicle or object.

In reaching this conclusion, the court specifically overruled its prior decision in Fiser v. Ann Arbor, 417 Mich. 461, 339 N.W.2d 413 (1983), which broadly interpreted "proximate cause" for purposes of the motor vehicle exception and permitted the police to face liability even though their vehicle did not hit the fleeing car, did not cause another vehicle or object to hit it, and did not force the fleeing car off the road or into another vehicle or object. Id. at 453.8

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The Michigan courts also re-visited premises liability law. Back in 1983, the Court of Appeals found that a woman could maintain an action for injuries sustained in a grocery store when she slipped on a grape merely by testifying that the grape felt as though someone had previously stepped on it. Ritter v. Meijer, Inc., 128 Mich. App. 783, 341 N.W.2d 220 (1983). The Ritter court found that "a stomped-upon grape is sufficient evidence to prove constructive notice of a slippery condition." Id. at 787, 341 N.W.2d 220.

This year, the Michigan Court of Appeals declined to follow the Ritter holding in another slip-and-fall case involving grapes. In Clark v. K-Mart Corp., 242 Mich. App. 137, 617 N.W.2d 729 (2000), the court found that the Ritter panelÕs conclusion that the jury could infer that the defendant store had constructive notice of the grape based on the fact that it was previously stepped on was too logically attenuated. A plaintiff in a slip-and-fall case must show more than a smashed grape to prove that a substance has been on the floor long enough for the store to have actual or constructive notice of it.