Michigan personal injury attorney discusses our premises liability law, designed to “evade, elude and eliminate responsibility” for slip and fall cases
Today I’d like to post a guest blog from my friend Mike Butler. Mike is a very talented attorney, and in the blog below, he writes about the tragic death of a Notre Dame student and videographer. Declan Sullivan died when the hydraulic scissor lift tower from which he was filming the Notre Dame football practice collapsed in a gust of wind.
Notre Dame released a statement taking responsibility for the student’s death. Butler wonders how the University of Michigan in Ann Arbor would have handled such a tragedy, given our insurance-driven Michigan Supreme Court and the way premises liability laws in Michigan have been dismantled by this “activist” Court.
Here are the highlights:
“Now, if Declan Sullivan had been a University of Michigan student taping Wolverine football practice in Ann Arbor on the same day and had died under the same circumstances, would the U of M have taken responsibility?
No–and trust me on this. And why, you ask? Because Michigan law, as it now exists (and despite the assertion by recently re-elected Supreme Court Justice Robert Young that his alleged “Rule of Law” has been destroyed by judges who create law based on personal empathy) would provide the University with the following ways to evade, elude and eliminate its responsibility: (By the way, this is not intended to be an exhaustive list)
o No claim can be made against the University as it is entitled to governmental immunity.
o There is no exception to governmental immunity applicable to this incident. The practice facility, though a public structure owned by the University is not a “public building” as defined by Michigan law (doesn’t have a roof, don’t you know). And, even if it was, the lift, though in the building, was not permanently attached to the structure. It could be moved, and indeed did move, so the public building exception to governmental immunity fails on two counts.
o This football program is not a proprietary function of the University so that exception to governmental immunity does not apply. Though the U of M football program makes a lot of money, the University as a whole doesn’t make money (allegedly), and that is the test. Though the student may be killed due to the negligence of the money-making football program, the University and the program is immune (I am not making this up).
o Under the Michigan “Open and Obvious” doctrine, Sullivan should have known about the danger of high winds, and therefore the University owed no duty to him. (His text messages from the tower would be used by the University to prove this).
o No special aspects of the incident would prevent the application of the “Open and Obvious Doctrine to Sullivan. This is not the 30 foot unguarded pit of Lugo v Ameritech. The tower fell with him on it. He didn’t fall from the tower.
o The hazard was not effectively unavoidable. Sullivan should have refused to go up in the tower. Case dismissed.
o At the same time it argued that Sullivan should have known of the weather conditions, the U of M would argue that it had no notice of the weather conditions, especially of the sudden gust that caused the accident. Case dismissed. It would argue at the same time that Sullivan should have known about the weather, but the U of M had no reason to know about the same conditions. (Again, I am not making this up).
o Violations of OSHA standards by the University are not proof of negligence such as to eliminate the Open and Obvious Doctrine or create a duty to Sullivan by the U of M.
o Sullivan was over 50% comparatively negligent for his own death and is entitled to no non-economic loss (he was texting while up there, remember – he probably wasn’t being careful.)
Citizens of Michigan might say, “That is not right. That is not fair. That is not just.” Justice Robert Young would say, “Tough.” Doing good is not a judge’s job, as he has said. And, in fact, he is now champing at the bit to make sure, now that he has his “Rule of Law” majority on the Supreme Court bench, to make sure that the Michigan Supreme Court indeed does no “good” in the future. So called “activist” judges (so called by him) in Michigan have made the law what they want it to be, not what it is. I would agree that Justice Young is, in fact, one of the most activist judges of all. He has and will continue to make the law what he wants it to be, and the Declan Sullivans of the world, and their families had better be prepared for the worst.”
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