Michigan Court of Appeals Continues Anti-Justice Trend in Premises Liability Lawsuits

A Kalamazoo, MI man died after strong winds caused a huge branch to crack off a tree and fall on top him. The accident happened on a Sunday afternoon in June 2008 when the man was taking a walk. The branch, 12 – 16 inches in diameter and as long as a bus, fell from an old choke cherry tree on the edge of a homeowner’s property. The victim was left in a coma with serious injuries including a fractured skull, a broken hip and a broken leg. He died days later.

The victim’s family filed a lawsuit alleging that the property owners should have known about the dangerous condition of the tree, but failed to have it inspected and/or removed. During a storm in 2002 a large branch fell off the tree, similar to the one that struck the victim. The lawsuit stated that this should have been a warning to the property owner that the tree needed to be inspected. Additionally, the plaintiff alleged that the tree had visible signs of decay.

The defendant argued that it was not necessary to contact an arborist to inspect the tree after the branch fell in 2002, and even if the tree was inspected, it is not clear whether the arborist would have found the tree weak or decayed. Neighbors said the tree had blue paint marks on it, making them wonder if the county was planning on cutting it down, but the Kalamazoo County Road Commission says they don’t use blue paint to mark unsafe trees.

In a 2-1 decision last week, the Michigan appeals court ruled not to hold the defendant responsible. The court said evidence of visible decay was based on “conjecture, speculation and misinterpretation of facts” and there is no guarantee that an arborist would have found any problems. Court of Appeals Judge Douglas Shapiro dissented. He was the "1" in the 2-1 decision; he stated that his appeals court colleagues disregarded valuable testimony from a tree expert. So, why would the majority simply ignore the expert in this case? Because of politics and campaign contributions, of course; read on.

“Liability” is an important issue in any premises liability case. To prove liability, a plaintiff must prove negligence. So, in this case, was the property owner negligent in not having the tree inspected and/or removed? Did he/she exercise reasonable care to keep the property safe? This is not a case where a branch was torn away from a tree during a storm, allowing no time for property owner action. Decay does not happen overnight. It had been six years since a similar-sized branch had fallen; six years, and the homeowner made no effort to make sure the tree was safe. Isn’t this an injustice to an innocent passer-by, you ask?

The answer is: “Not in Michigan”. In Michigan, premises liability law grants almost complete immunity to the premises owners to the detriment of innocent victims of premises owner negligence. In most jurisdictions, property owners have a duty to exercise reasonable care to protect others from harm caused by a defective condition; they bear the simple responsibility to keep their premises safe. In comparative negligence states like Michigan, the courts (or the jury) are supposed to compare the negligence of the plaintiff to the negligence of the defendant and come up with a fair percentage of blame. The plaintiff collects an award that is discounted by the percentage of blame that he/she is held responsible for. This sounds fair, doesn’t it? But, in Michigan, property owners have no duty to protect you from dangers lurking on their property, even if they know or should know about them. It wasn’t always this way; under a body of premises case law that has developed over the last several years (by right- wing political appointees), the victim must “watch where he/she is going”, must assume serious dangers that are not readily observable (snow under ice; black ice, etc.). Any defect or danger that a higher court might assume to be “open and obvious” to the victim is used to completely exonerate the conduct of the wrongdoer. The “Open and Obvious” standard gets around the comparative negligence analysis by excusing the defendant’s duty to keep his/her premises safe. Can anything be more absurd than that?

Apparently, we are all supposed to get down on our hands and knees after each step and carefully inspect for potential defects that might make us fall. We are also, apparently, supposed to look up at and inspect every tree which branches over the sidewalk during our neighborhood walk even though the homeowner is on notice that something may be wrong, is in a position to correct the problem, and does absolutely nothing. The appellate courts in Michigan have even applied these ridiculous standards to a blind person!

Why does anyone need premises liability insurance? Have the rates for such gone down? As comedian Steve Martin would famously say, “Oh, I forgot!” Insurance companies love taking our money in premiums, they just don’t care to pay it out in benefits. In Michigan, we actually reward property owners for creating more obvious dangerous conditions; the more obviously dangerous it is, the less liability the premises owner has for it. Thus, premises owners can maintain seriously dangerous conditions on their properties and enjoy complete immunity in Michigan. And who picks up the tab for the victim? The taxpayer does, of course. But, as long as insurance companies don’t have to pay benefits, as long as corporate premises owners don’t have to be responsible for injuring citizens, the courts, beholden to corporate campaign contributors in the millions and billions, have done their jobs.

So, what is the answer? How do we correct these injustices? We can start at the grass roots. Tell your elected state senators or state representatives that you are mad as hell and you are not going to take it anymore! There is zero incentive for property owners to keep their premises safe and they and their insurance companies are laughing all the way to the bank while injured citizens and taxpayers suffer. Contact your state representatives and ask them to sponsor a bill to make premises liability laws fair again, in Michigan.

Mark Bello has thirty-three years experience as a trial lawyer and twelve years as an underwriter and situational analyst in the lawsuit funding industry. He is the owner and founder of Lawsuit Financial Corporation which helps provide legal finance cash flow solutions and consulting when necessities of life litigation funding is needed by plaintiffs involved in pending, personal injury litigation. Bello is a Justice Pac member of the American Association for Justice, Sustaining and Justice Pac member of the Michigan Association for Justice, Business Associate of the Florida, Tennessee, and Colorado Associations for Justice, a member of the American Bar Association as well as their ABA Advisory Committee, the State Bar of Michigan and the Injury Board.