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Michigan’s New Two-Inch Rule Related to Sidewalk Defects
and Trip and Falls

June 28, 2012 / in Written by Mike Salhaney

Municipalities can breathe a sigh of relief from trip and fall claims and lawsuits now that the Michigan Legislature has brought the “two-inch rule” back to life. The rule gives local units of government the ability to rely upon a presumption that a sidewalk is in a reasonable state of repair if a defect in the sidewalk causing the injury is less than two inches in size.

The “two inch rule,” as it is known, existed in Michigan as merely a rebuttable inference under the statute related to defective public highways.   Municipalities were able to use this statutory inference in lawsuits filed against them related to defective sidewalks that were adjacent to any highway.  That is, until April of 2010 when the Michigan Supreme Court issued its ruling in Robinson v City of Lansing that the statutory inference of reasonable repair applied only to those sidewalks that were adjacent to county highways, not state or local public roads.

The decision in Robinson forced municipalities dealing with claims concerning sidewalks adjacent to non-county highways (i.e. city-owned streets) to spend precious governmental funds to litigate the question of whether the sidewalk was in “reasonable repair” without the benefit of any inference.  Cities were finding themselves without any protection and having to litigate claims from a plaintiff who tripped on a sidewalk heave of an eighth of an inch.

With the legislative action, the “two-inch rule” is back, and stronger than the previous statutory language.  Effective March 13, 2012, the legislature amended the Governmental Tort Liability Act, strengthening the statutory inference by changing it to a much stronger statutory presumption.  This change to a presumption now requires plaintiffs/claimants to carry the burden of proof to avoid governmental immunity. It has also been broadened to include sidewalks adjacent to municipal and state highways in addition to county highways.  A plaintiff/claimant must now prove that the defect in the sidewalk has a vertical defect greater than 2 inches in height. If not, then the sidewalk is presumed to be in reasonable repair, and no liability.

Not only does the amended statute presume a sidewalk to be in reasonable repair, even if it has a defect less than two inches, but it also provides clarity to the issue of how you measure the defect.  For instance, many plaintiffs would measure the defect horizontally (i.e., horizontal pot-hole width), yet the actual vertical discontinuity would only be half an inch.  The statute states, in pertinent part:

In a civil action, a municipal corporation that has a duty to maintain a sidewalk under subsection (1) is presumed to have maintained the sidewalk in reasonable repair. This presumption may only be rebutted by evidence of facts showing that a proximate cause of the injury was 1 or both of the following:

  • (a)  A vertical discontinuity defect of 2 inches or more in the sidewalk.
  • (b)   A dangerous condition in the sidewalk itself or a particular character other than solely a vertical discontinuity.

MCL §691.1402a(3)

This language means the presumption may only be rebutted by evidence showing that an injury was caused by a vertical discontinuity of at least two inches or by a particularly dangerous condition existing in the sidewalk. The question of whether or not the plaintiff has rebutted the presumption is now a question of law for the court to decide, not a question of fact for the jury.

 

Matt’s Safe School Law

March 28, 2012 / in Written by Mike Gibbons

Anti-Bullying Law Requires School Policy by June


Under Matt’s Safe School Law, HB 4163, public, charter and Intermediate school districts will have six months from the law’s effective date to adopt anti-bullying policies. Michigan was one of only three states without an anti-bullying law before this legislation was enacted in early December 2011.

Controversial language exempting the prohibition of “a statement of a sincerely held belief or moral conviction” of a student or school worker was not included in the final legislation. The law now demands that bullying is equally prohibited without regard to its subject matter or motivating animus.

Under Matt’s Safe School Law, a school’s policy must not only prohibit bullying, but also work to ban retaliation against a witness, informant or target of the bullying. Along with required reporting, publicizing and investigation procedures, the proposed law also demands that schools identify who at the school is responsible for ensuring policy implementation. Additionally, schools must notify the parents of the perpetrator of bullying.

The law stops short of mandating that boards require any type of staff training for the prevention of bullying, but does encourage boards to include the following in their policies:

  • Provisions to form bullying prevention task forces, programs, teen courts, and other initiatives involving staff, pupils, clubs/groups, volunteers, parents, law enforcement and the community.
  • A requirement for annual training for admins, employees and volunteers who have significant contact with pupils to prevent, identify and respond to bullying.
  • A requirement to establish educational programs for pupils and parents.
  • Immunity from a cause of action for damages arising out of the reporting itself or any failure to remedy the reported incident, excluding the school official designated for remedying the bullying.

Off-Premises and Telecommunications

It is important to note that the law defines “at school” to include buses, school sponsored activities off-premises, and conduct using a telecommunications access device or service provider if the device/provider is under control of school district. Students using school email addresses to send messaged intended to harm another pupil would be included under this law.

Bullying is defined as “any written, verbal or physical act, or electronic communication, that is intended or that a reasonable person would know is likely to harm 1 or more pupils either directly or indirectly by doing the following:”

  • Substantially interfering with educational opportunities, benefits or programs of 1 or more pupils.
  • Adversely affecting the ability…to participate in education /activities by placing the pupil in “reasonable fear of physical harm or by causing substantial emotional distress.”
  • Having actual and substantial detrimental effect on a pupil’s physical or mental health.

Schools must report on status of the implementation of the policies one year later.

Matt’s Safe School Law is named after Matt Epling, a freshman from East Lansing who killed himself after a bullying incident by upperclassmen in 2002.

Beier Howlett attorneys have the expertise and experience in school law to draft a comprehensive anti-bullying policy which will comply with the new proposed law. For details, please contact one of the following Beier Howlett attorneys or call (248) 645-9400:

This publication is distributed with the understanding that Beier Howlett, P.C. is not rendering legal or other professional advice or opinions on specific facts or matters and, accordingly, assumes no liability whatsoever in connection with its use. Forward your comments, change of address, or additions to our mailing list at feedback@bhlaw.us.com.

 

Police Department Training Update

March 23, 2012 / in

Self-Defense Chemical Spray Law Amended

Michigan police departments should be aware of a very subtle, yet significant, change in the law related to self-defense chemical spray. An amendment to Michigan Compiled Law Section 750.244d was signed into law on December 22, 2010 by former Governor Granholm. The amendment allows for a higher concentration of oleoresin capsicum in self-defense “pepper” sprays or foam. The law previously allowed for only 2% of a solution containing oleoresin capsicum. The new law allows for a solution containing not more than 10% of oleoresin capsicum.

“Michigan residents will now have access to a greater variety of self-defense products that are not lethal and easy to purchase to protect themselves and their property,” said Rep. Hugh Crawford (R-Novi) who introduced the legislation in the state House. “Allowing a higher concentration of this chemical in pepper spray devices makes these products safer for users, and gives a person more options instead of using physical force for protection.”
Officers throughout the state need to be aware of this subtle change in the law so enforcement can be accurate and effective. Beier Howlett welcomes your questions about this change in the law and is prepared to provide any assistance to your police agency as may be needed on this issue.

For more information, contact Mike Salhaney by email at msalhaney@bhlaw.us.com or call (248) 645-9400.

 

News From The Firm

March 23, 2012 / in

Beier Howlett is now on facebook! For regular updates, news and information from the firm, we invite you to “Like” us on our facebook page.

After serving for more than four decades on the bench of the Oakland County Probate Court, the Honorable Eugene Arthur Moore (left) will return to our firm as an attorney of counsel.

Peter Gojcaj has been named Partner at the firm. He is a member of the business law practice group, and a founding member of the newly formed Albanian American Chamber of Commerce.

The Michigan Environmental Law Deskbook is now available online at www.envdeskbook.org. Jeff Haynes served as co-editor and contributing writer for the Deskbook (second edition). As a free service

of the State Bar of Michigan, it provides up-to-date legal analysis of environmental law issues and hyperlinks to environmental statutes, rules and cases.

CONGRATULATIONS

Beier Howlett has been named to the inaugural edition of the U.S. News Best Law Firms rankings.

Three firm attorneys were also selected by their peers for inclusion in The Best Lawyers in America®:

Tim Currier, CEO of the firm, was named in the field of municipal law;

Jeff Haynes was named in the field of environmental law;

Stephen Jones was named for probate and estate planning.

Stephen Jones of the firm’s probate & estate planning practice has been named a Five Star Wealth Manager by HOUR Detroit and dBusiness magazines. Less than 7% of metro Detroit wealth managers are named to this list. Jones specializes in taxation and will preparation.

Tim Currier, CEO, along with partners Jeff Kragt and Frank Galgan, have been named to the annual Super Lawyers list. Only 5% of Michigan attorneys are included in this list. This is Currier’s fifth consecutive inclusion on the list, and Kragt’s second.

 

Ban On Texting While Driving

March 23, 2012 / in

Police departments and communities struggle with training and enforcement

On April 30th, Governor Granholm signed into law a ban on texting while driving, making Michigan the 23rd state to enact such a ban. Michigan police have until July 1, 2010, when the law takes effect, to interpret the implications of the new law and train officers in the enforcement of it. Beier Howlett can help.

Although the ban may seem clear-cut at first glance, there will be ambiguity as to what “texting” really means under the law. The statute states: “A person shall not read, manually type, or send a text message on a wireless 2-way communication device in the person’s hand or in the person’s lap…while operating a motor vehicle that is moving on a highway or street in this state”.

Under the statue, the police have the right to stop a motorist and write them a ticket for texting while driving as a primary offense. In other words, texting alone is cause enough to be pulled over; no other offense need be committed. A conviction for a first offense is a civil infraction and carries a penalty of $100 and no points on the driving record. A second conviction results in a civil infraction carrying a penalty of $200.

The statute has a series of exceptions included to allow a motorist to send a text message to report an accident, medical emergency or serious road hazard. A driver can also send a text message to report a situation where they believe their safety is in jeopardy or to report the perpetration of a crime.

But what about email? What about surfing the Web on your cell phone? Are these acts considered “texting”? There is also a question about whether or not the person is texting in a motor vehicle that is actually “moving.” Can a driver send or read a text message while stopped at a red light? What if the communication device is mounted on the dashboard or console?

The answers to these questions will be resolved on a case-by-case basis as local and state police departments begin to enforce the ban. But that does not make the implementation and enforcement of the ban easy for law enforcement and prosecutors (or for defense counsel and the court).

Police departments will have to create policy considerations on the implementation and enforcement of this ban. Officers will need to be trained in what to look for, and what evidence to pay attention to. Officers will need to learn to let the facts develop to a certain point, so as to eliminate some of the ambiguities of the statute.

Beier Howlett can help your department with such training. We are prepared to explain the statute and train your officers at an in-house training for command officers and patrol officers. For further information or to schedule a training session for your department, contact the Municipal Practice Group at Beier Howlett, P.C. (248) 645-9400

 

Michigan Supreme Court “Trips-Up” 2-Inch City Sidewalk Rule

March 23, 2012 / in

When someone sues a city or village claiming that they tripped and fell on a defective section of sidewalk, cities and villages have been able to defend themselves by demonstrating that the alleged defect was less than 2 inches in height, depth and/or width.

The Governmental Tort Liability Act contains language that it is a rebuttable inference that a sidewalk is in reasonable repair if the alleged defect is under that 2 inch mark. M.C.L.A. §691.1402a.

But all of that changed on April 8th when the Michigan Supreme Court ruled the 2-inch rule only applies to sidewalks adjacent to county highways, NOT sidewalks adjacent to city or village owned sidewalks!

What does this mean for your municipality? It means that your budget will be hit with either greater costs to inspect, maintain and repair your sidewalks, or increased legal costs to defend and/or resolve sidewalk litigation cases. Municipalities are at a greater risk of being sued if someone trips and falls on a sidewalk that is not adjacent to a county highway. If the city or village owns the highway and sidewalk, they are no longer protected by the 2-inch rule.

For a copy of the Court’s opinion as well as a strategic plan on what this ruling means for your municipality, including what to do next, please feel free to call the Municipal Law group at Beier Howlett, P.C. (248) 645-9400, or email msalhaney@bhlaw.us.com.

 

School Law

March 23, 2012 / in Written by Mike Salhaney

Off the Deep End: Think Before Donating Use of Your School Pool

Pool facilities within our local high schools are often used to benefit the surrounding communities, yet educators should be aware of potential pitfalls associated with loaning out their waters.

In a recent unpublished Michigan Court of Appeals case (Ryan v. Lamphere Pub. Sch. Sys., Unpublished Opinion, NO.: 286741, March 16, 2010), the issue of a school district’s governmental immunity was challenged when a Special Olympics swimmer drowned in a middle school pool during a practice session. Also under review was the trial courts determination that the teachers who donated their time to coaching the Special Olympics swim team and the volunteer student life guard were also protected by governmental immunity.

The family of the victim claimed that neither the school district, the two teachers who volunteered to coach the swim team, nor the volunteer student lifeguard had governmental immunity, asserting a gross negligence claim against the defendants. The family contended the loaning out of a public school’s swimming facilities to a private entity like the Special Olympics goes beyond the normal operation of a public school district. They argued that the Special Olympics practice sessions held on school premises were not part of the school’s curriculum, and thus were not sufficiently related to the educational mission of the school to rise to the level of a governmental function.

The family of the victim also argued that the two teachers who volunteered their time to also coach the Special Olympics swimming team and the student who volunteered to be the life guard were serving “two masters” (the school district and the Special Olympics – a private organization).

The trial court ruled in favor of the school system and individual defendants on the basis of governmental immunity. It concluded that although the Special Olympics swimming practice sessions were not part of the school’s regular curriculum, the school was engaged in the exercise of a governmental function when it loaned out its facilities to the Special Olympics. As a result, the school was immune from liability as a matter of law with respect to any negligence claims arising from the Special Olympics swimming practice sessions.

As to the individual defendants, the trial court ruled they were acting as volunteers of the school district, and likewise protected by governmental immunity.

The Michigan Court of Appeals affirmed the trial court’s decision that the school district was acting within its authority in loaning out its facilities to the Special Olympics, and that the district was engaged in a governmental function. As such, the school district was protected by immunity. However, the Michigan Court of Appeals reversed the trial court’s order related to the teachers and student lifeguard. A key factor in overturning the decision was the determination of the individual defendants’ employment status. Whether they were in fact an “employee of a governmental agency” or a “volunteer acting on behalf of a governmental agency” determined the applicability of the immunity protection.

While two defendants were school employees supervising the practice sessions on school property during normal school hours, and one defendant was a volunteer lifeguard for the school, there were genuine issues of material fact whether they were simultaneously serving as agents of the Special Olympics at the time of the student’s drowning. Under existing law, dual agents are not entitled to governmental immunity from tort liability. The case was affirmed in part, reversed in part, and remanded.

To fully understand and protect your school system from potential liability, it is important to consult an attorney about the use of your pool facilities by the community. Beier Howlett Municipal and School Law Practice attorneys are available for consultation. please feel free to call the Municipal Law group at Beier Howlett, P.C. (248) 645-9400, or email msalhaney@bhlaw.us.com.

 

News From The Community

Marsh 22, 2012 / in Municipal Law

Gilda’s Club Benefits From MSU, UofM Rivalry

Beier Howlett hosted a tailgate fundraiser for the University of Michigan and Michigan State game last fall. The firm hosted the event to help sponsor “Gilda’s Club,” an organization that offers free network and support groups, workshops, education and social activities for those with cancer. Beier Howlett was able to raise money as well as kitchen supplies to help them host their meetings.

The firm also supported the Raise the Roof for Affordable Housing event recently, donating U of M football tickets for the live auction and participating in the fundraising dinner. As a result of the event, Community Housing Network supporters contributed more than $67,000 to help people with disabilities and those who are homeless get into long-term, successful housing.

 

News From The Firm

March 21, 2012 / in Municipal Law

Beier Howlett is proud to announce Mary Kucharek as a partner in the firm.  Mary is a member of the firm’s municipal practice group.  Specializing in prosecutions and criminal law, she frequently speaks to community groups about under-age substance abuse.

Congratulations to attorneys Tim Currier, Stephen Jones and Jeff Haynes, named to the Best Lawyers in America for 2012.

 

Ban On Texting While Driving: Police departments and
communities struggle with training and enforcement

April 30, 2012 / in Written by Mike Salhaney

On April 30th, Governor Granholm signed into law a ban on texting while driving, making Michigan the 23rd state to enact such a ban. Michigan police have until July 1, 2010, when the law takes effect, to interpret the implications of the new law and train officers in the enforcement of it. Beier Howlett can help.

Although the ban may seem clear-cut at first glance, there will be ambiguity as to what “texting” really means under the law. The statute states: “A person shall not read, manually type, or send a text message on a wireless 2-way communication device in the person’s hand or in the person’s lap…while operating a motor vehicle that is moving on a highway or street in this state”.

Under the statue, the police have the right to stop a motorist and write them a ticket for texting while driving as a primary offense. In other words, texting alone is cause enough to be pulled over; no other offense need be committed. A conviction for a first offense is a civil infraction and carries a penalty of $100 and no points on the driving record. A second conviction results in a civil infraction carrying a penalty of $200.

The statute has a series of exceptions included to allow a motorist to send a text message to report an accident, medical emergency or serious road hazard. A driver can also send a text message to report a situation where they believe their safety is in jeopardy or to report the perpetration of a crime.

But what about email? What about surfing the Web on your cell phone? Are these acts considered “texting”? There is also a question about whether or not the person is texting in a motor vehicle that is actually “moving.” Can a driver send or read a text message while stopped at a red light? What if the communication device is mounted on the dashboard or console?

The answers to these questions will be resolved on a case-by-case basis as local and state police departments begin to enforce the ban. But that does not make the implementation and enforcement of the ban easy for law enforcement and prosecutors (or for defense counsel and the court).

Police departments will have to create policy considerations on the implementation and enforcement of this ban. Officers will need to be trained in what to look for, and what evidence to pay attention to. Officers will need to learn to let the facts develop to a certain point, so as to eliminate some of the ambiguities of the statute.

Beier Howlett can help your department with such training. We are prepared to explain the statute and train your officers at an in-house training for command officers and patrol officers. For further information or to schedule a training session for your department, contact the Municipal Practice Group at

Beier Howlett, P.C.         (248) 645-9400