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April 2014

Apr 2014
30
April 30, 2014

COA calls for special panel on whether "open and obvious" doctrine should apply to hazards in store aisles

In Quinto v. Woodward Detroit CVS, LLCthe Court of Appeals upheld summary disposition in favor of a defendant for plaintiff's claim for injuries resulting from falling over platform in the aisle of a store.  The Court concluded that this result was compelled by earlier Court of Appeals' authority that applied the "open and obvious" doctrine to bar a claim under similar facts.  This doctrine holds that a property owner is not responsible to protect invitees from conditions that an average person would discover upon casual inspection.  The majority of this panel, however, disagreed with the earlier Court of Appeals precedent and argued that a proper analysis of Michigan Supreme Court authority suggests that the protections of the open and obvious doctrine should not apply to floor-level hazards in store aisles, particularly where that aisle contains advertising designed to capture customer's attention.  The majority, therefore requested a special conflict panel pursuant to MCR 7.215(J)(2).  Judge Cavanaugh dissented, arguing that the possibility of distraction in a store aisle was not sufficient to create a unique duty for store owners to protect customers from open and obvious conditions.  

Apr 2014
30
April 30, 2014

Where ineffective counsel claim is based on the failure to produce evidence, trial court must determine admissibility of that evidence

In People v. Kranz, the Michigan Supreme Court considered the application for leave to appeal the Court of Appeals’ September 24, 2013 judgment. In lieu of granting leave to appeal, the Supreme Court vacated the portion of the opinion addressing ineffective assistance of counsel as it relates to the presentation of a defense, and remanded the case to the Court of Appeals. While retaining jurisdiction, the Court of Appeals is to remand the case to the Allegan Circuit Court for further findings related to the claim of ineffective assistance of counsel, including the admissibility of evidence not produced at trial.

The Supreme Court concluded that the trial court failed to complete its duties under the April 12, 2012 order of the Court of Appeals, which remanded for a hearing under People v. Ginther, 390 Mich. 436 (1973), because it did not determine the admissibility of the evidence that it considered in finding ineffective assistance by trial counsel.

Apr 2014
30
April 30, 2014

MSC rules Defendant’s motion to withdraw guilty plea after sentencing under MCR 6.310(C) must demonstrate plea proceeding error

The Michigan Supreme Court considered the application for leave to appeal the Court of Appeals’ September 26, 2013 judgment in People v. Sanford. In lieu of granting leave to appeal, the Supreme Court vacated the Court of Appeals’ judgment and reinstated the Wayne Circuit Court’s February 29, 2012 order denying the defendant’s motion to withdraw his plea. The defendant filed a motion to withdraw his guilty plea after he was sentenced. MCR 6.310(C) permits a defendant to withdraw a guilty plea after sentencing only if the trial court determines that there was an error in the plea proceeding that would entitle the defendant to have the plea set aside. “A defendant seeking to withdraw his or her plea after sentencing must demonstrate a defect in the plea-taking process,” People v. Brown, 492 Mich. 684, 693 (2012). Because the defendant did not base his motion on an error in the plea proceeding, the Supreme Court concluded that the Court of Appeals erred by adjudicating the defendant’s appeal. The Supreme Court noted, however, that its order is without prejudice to the defendant’s ability to file a motion for relief from judgment pursuant to MCR 6.500 et seq. raising the issues addressed in his motion to withdraw plea.

Apr 2014
30
April 30, 2014

MSC to consider whether aiding and abetting can be proven where the defendant failed to act according to a legal duty, but provided no other assistance to the principal

The Michigan Supreme Court is considering the application for leave to appeal the Court of Appeals’ December 19, 2013 judgment in People v. Borom, and ordered the parties to address whether aiding and abetting under MCL 767.39 can be proven where the defendant failed to act according to a legal duty, but provided no other form of assistance to the perpetrator of the crime. On this issue, the Court of Appeals concluded upon previous remand that aiding and abetting first-degree child abuse may be proven where a parent breaches his or her duty to prevent injury to his or her child with knowledge that the child will be seriously harmed.

Apr 2014
28
April 28, 2014

MSC holds that property owners have no absolute right to avoid demolition of a building by repairing it

Municipalities, and not property owners, might get the final say in whether an unsafe structure must be demolished rather than repaired, according to the Michigan Supreme Court’s decision in Bonner v City of Brighton.  The Court unanimously held that Brighton’s ordinance—which presumes repairs are unreasonable and requires demolition if the repair cost exceeds 100% of the structure’s value—did not on its face violate substantive due process.  The Court found that this choice of demolition over repair was reasonably related to and reasonably advanced the municipality’s interest in preventing injury, reducing crime, and improving property values.  And it placed great emphasis on the fact that the property owner could rebut the presumption that repairs were unreasonable.  But ultimately, the court looked only at whether the demolition ordinance on its face was reasonable, not whether it violated substantive due process as applied in this case--an issue that is likely to arise on remand.

Apr 2014
28
April 28, 2014

MSC holds that employer was free to let a whistleblower’s employment contract expire

Michigan employers may not be able to lawfully fire a whistleblower, but they can probably choose to not re-hire one, according to a unanimous decision authored by Justice Zahra in Wurtz v. Beecher Metropolitan District.  (Justice Cavanagh concurred only in the result.)  The Whistleblower Protection Act (WPA) protects whistleblowing employees from retaliatory adverse employment actions.  But the Court held the protections end once the employee’s contract has expired, absent some contractual provision to the contrary. Once the contract has ended, the employee enjoys the same status as any other prospective hire. Because Wurtz did not allege that his employer took adverse action against him during his term of employment, he failed to state a claim under the WPA.

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