Legacy of “Gang of Four” Haunts Accident Victims
Michigan Supreme Court Chief Justice Cliff Taylor is now unemployed, having lost his re-election bid to Judge Diane Hathaway last week. Under Taylor’s reign, the Court devastated the rights of accident victims throughout Michigan.
The personal injury lawyers of Michigan Auto Law have new hope that some of the Court’s most notorious holdings could change with Hathaway’s seat on the bench, and that the new Court could restore fairness and justice to Michigan tort and personal injury law in future years. Hathaway may bring needed balance to the Michigan Supreme Court. It will now consist of three Democrats, three Republicans and one moderate Republican, Justice Elizabeth Weaver; who is well-respected amongst Michigan lawyers and is considered a crucial swing vote.
Still, the devastation left behind by the former “gang of four” which had a tight grip on the Court, is shocking. With that in mind, our accident lawyers have put together a list of what we consider the greatest travesties of justice resulting from Chief Justice Taylor’s sway on the Court. These cases are still the law today. Many of them deal with the rights of people injured in auto accidents.
No. 1 on the list of judicial travesties is a case that has left thousands of car accident victims without any compensation for their serious personal injuries, Kreiner v. Fischer.
1. Kreiner v. Fischer, 471 Mich 109 (2004). The Court rewrote the statutory definition of “serious impairment of an important body function” and created a more restrictive standard which denies persons who are seriously injured in auto accidents caused by negligent and even drunk drivers from having access to the courts.
2. Devillers v. Auto Club Insurance Assoc., 473 Mich 562 (2005). Court overrules decades of established law and ended equitable tolling of claims for auto insurance benefits where the insurance company refuses to make a decision during the required time period. This decision allows Michigan no-fault insurers to avoid paying claims if it waits long enough before processing them.
3. Cameron v. ACIA, 476 Mich 55( 2006). In a dramatic change of the law, the Court shortened the statute of limitations to one year for minors and brain injured persons in Michigan car accidents in claims seeking personal injury protection (PIP) benefits.
4. Nawrocki v. Macomb County Road Commission, 463 Mich 143 (2000). The Court eliminates responsibility for the governments to maintain public road safety.
5. Radeljak v. Chrysler, 475 Mich 598 ( 2006). The Court limits access to Michigan courts for non-residents, even when the negligence occurred in Michigan.
6. Philips v. Mirac Inc., 470 Mich 415 (2004). The Court upholds a statute applying to rental cars limiting damages following car accidents for injuries to a maximum of $40,000 and disregards an individual’s constitutional right to have a jury decide pain and suffering damages.
7. Hanson v. Mecosta County Road Commission, 465 Mich 492 (2002). The Court held that the state has no liability for the defective design of a public highway.
8. Griffith v. State Farm Insurance, 472 Mich 521 (2005). An important Michigan No-Fault law case, the Court held there is no requirement for an auto insurance company to pay for food for a quadriplegic who chooses to live with a guardian rather than in an institution.
9. Grimes v. Department of Transportation, 475 Mich 72 (2006). The Court held that the shoulder of a roadway is not part of the “improved portion of the highway designed for vehicular travel,” thus eliminating the government’s duty to maintain them free of serious defects. A man who became a quadriplegic could not bring a claim for his injuries which were caused by a serious defect in a shoulder of a road.
10. Rory v. Continental, 473 Mich 457 (2005). The Court disregards decades of established law and allows auto insurance companies to write shorter statute of limitations into insurance contracts than those provided for by tort law and in doing so claims that “individuals” have the ability to “negotiate” insurance policies. The fine print in an insurance contract will be enforced even where it is unreasonable to do so.
11. Lugo v. Ameritech, 464 Mich 512 (2001). Judicial adoption of an “open and obvious” doctrine which effectively repeals the statutory doctrine of comparative negligence in premises cases. Essentially wipes out slip and fall cases. The court declares that no typical person could ever be seriously injured from falling in a pothole or on a sidewalk, wipes out 60 years of human factors science and ignoring established, authoritative statistics proving the contrary.
12. Reed v. Breton, 475 Mich 531 (2006). The Court changed decades of common law that allowed circumstantial evidence to prove an illegal sale in a dramshop case. Plaintiff was not allowed to proceed to a jury based on toxicology testimony where the defendant admitted to drinking 20 beers before he killed someone while driving at 100 mph and had a .21 blood alcohol level. The Court creates a new standard without any statutory basis.
13. Roberts v. Mecosta General Hospital, 466 Mich 57 (2002), after remand 470 Mich 679 (2004). The Court denied persons injured by medical negligence, with affidavit certified meritorious claims, access to the courts, based on a hyper technical interpretation of a statutory pre-suit notice document. The Court required that more information be included in a pre-suit notice document, which is intended to encourage the parties to settle pre-suit, than is needed in the actual documents filed with the court.
14. Burton v. Reed City Hospital Corp, 471 Mich 745 (2005). The Court dismissed an affidavit certified meritorious medical negligence claim because it was filed too early, even though the Legislature removed the language from the statute allowing the courts to dismiss claims for these types of reasons.
15. Waltz v. Wyse, 469 Mich 642 (2004). The Court throws out decades of settled law and changed the way the statute of limitations is calculated in wrongful death cases denying the relatives of persons killed by medical negligence access to court despite the fact the claims were affidavit certified as meritorious.
16. Wickens v. Oakwood Healthcare System, 465 Mich 53 (2001). The Court changed well established law and holds that a person cannot sue for the loss of an opportunity to survive until after they die, and they must die within the two year statute of limitations or the person’s heirs will be denied court access.
17. Zsigo v. Hurley Medical Center, 475 Mich 215 (2006). Where a hospital employee raped a helpless patient in the hospital, the Court held that the hospital was not responsible. The Court held that a hospital has no responsibility to protect patients from employees who engage in intentional or criminal acts.
18. McKim v. Forward Lodging Inc., 474 Mich 947 (2005). The Court decided that an emergency medical technician could not sue for injuries received while trying to assist injured patient.
19. Robinson v. City of Detroit, 462 Mich 439 (2000). The Court held that the government can escape all liability when it injures persons so long as they can prove that someone else was also partly at fault.
20. Stitt v. Holland Abundant Life Fellowship, 462 Mich 591 (2000). The Court reduced the liability of building owners to members of the public who are not paying customers.
21. MacDonald v. PKT, Inc., 464 Mich 322 (2001). The Court decided that businesses have no duty to protect patrons from dangers until they see an immediate risk of harm to a customer and their only duty is to make reasonable efforts to call the police.
22. Garg v. Macomb County Mental Health, 472 Mich 263 (2005). The Court reversed decades of law and overruled the continuing violations doctrine, allowing an employer to escape liability for sexual harassment because it had been going on for a long time.
23. Neal v. Wilkes, 470 Mich 661 (2004). The Court expands the scope of immunity granted to landowners, historically limited to large tracts of undeveloped land under the Recreational Land Use Act, now granting immunity to developed suburban lots.
24. Michalski v. Bar-Levav, 463 Mich 723 (2001). The Court eliminated the rights of disabled workers to safe and reasonable working conditions.
25. Shinholster v. Annapolis Hospital, 471 Mich 540 (2004). The Court permits defendants in medical negligence cases to reduce their own liability by allowing them to argue that the injured person was at-fault for having caused the accident or illness for which they sought the medical care, reversing decades of established law.
26. Haynie v. State, 468 Mich 302 (2003). The Court’s decision causes women to lose work place protections. Harassment of female coworkers that is gender-based, but not sexual in nature, is no longer actionable in Michigan.
27. Greene v. AP Products Ltd., 475 Mich 502 (2006). The Court decided that a bottle of hair oil did not require a warning that the contents could be deadly and should be kept out of the reach of children.
28. Elezovic v. Ford Motor Co., 472 Mich 408 (2005). Even though plaintiff told two supervisors about improper conduct and filed numerous grievances against the alleged harasser, the Court decided that employer did not have sufficient notice of sexual harassment of the plaintiff in the workplace.
29. Gilbert v. DaimlerChrysler Corp., 470 Mich 749 (2004).The Court overturned a jury verdict in favor of Plaintiff, the first female millwright at Chrysler’s Jefferson Avenue plant, who overwhelmingly proved that male employees sexually harassed her and that her employer failed to conduct a proper investigation and did very little to try to make the harassment stop. According to the dissenting justices the decision was motivated by the Court’s dislike of the plaintiff’s attorney.
30. Magee v. DaimlerChrysler Corp., 472 Mich 108 (2005). The Court found that even though the plaintiff’s claims of sexual harassment, sex and age discrimination and retaliation were filed within three years of the date she resigned, the suit was too late because none of the alleged conduct occurred within the three years before filing the complaint.
31. Sington v. Chrysler Corp., 467 Mich 144 (2002).The Court, after consulting a dictionary, overruled the existing definition of “disability”, under the Workers Compensation Act, making it far more difficult to be compensated for a work place injury and overturning existing law.
32. Scarsella v. Pollak, 461 Mich 547 (2000). The Court held that persons inured by medical negligence can be precluded from bringing meritorious claims if there are omissions in court pleadings despite the lack of any legislative authority to do so.
33. Rakestraw v. General Dynamics Land Sys, 469 Mich 220 (2003). The Court eliminated an entire class of workers rights to receive worker’s compensation for on-the-job injuries overruling established law.
34. Jenkins v. Patel, 471 Mich 158 (2004). The Court decided that the limitation on non-economic damages in medical negligence case was extended to wrongful death cases despite contrary statutory language.
35. Costa v. Emergency Medical Services, 475 Mich 403 (2006). The Court expanded the defense of governmental immunity and suspended all requirements that governmental employee defendants comply with the statutory medical malpractice requirements in lawsuits.
36. Mack v. City of Detroit, 467 Mich 186 (2002). The Court stuck down local authority to protect workers on the job from being harassed for their sexual orientation.
37. Henry v. Dow Chemical, 473 Mich 63 (2006). The Court decided that persons needlessly exposed to carcinogenic Dioxins negligently released into the environment are precluded from bringing claims as they have not gotten cancer quickly enough, even though it is well known that it may take many years for the cancers to manifest.
38. Creech v. Foot Memorial, 474 Mich 1135 (2006). The Court denied court access to multiple patients who learned that they had been negligently exposed to an infection while receiving medical treatment because they did not develop symptoms yet, despite medical evidence that it may take years to develop symptoms.
– Steve Gursten, managing partner of Michigan Auto Law, is co-chair of the Michigan Association for Justice Automobile Accident No Fault Committee. This list was complied in conjunction with the Michigan Association for Justice Amicus Committee.
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