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O TEMPORA, O SOPHO-MORES

Even setting aside the AIG corporate greed, government bail-out, trial lawyers as terrrorist rhetoric of former CEO Hank Greenberg, I have always found the AIG ads featuring little kids spewing complex financial terminology to be, well, irksome. For instance:

Not content to be "irked", Jimmy Kimmel updated the ad campaign to conform to current conditions. Sophomoric-perhaps. Not up to the usual Noel Coward-like humor standards of this site--probably. Funny?--Unquestionably.

OPEN AND OBVIOUS IN MICHIGAN--PRESENTING OUR AVERAGE USER OF ORDINARY INTELLIGENCE

In Lugo v. Ameritech, 464 Mich. 512, 516 (2001), the Michigan Supreme Court held that a condition is open and obvious if it is reasonable to expect an average person of ordinary intelligence to discover the danger upon casual inspection.  The case held that all surface potholes and cracks were open and obvious as a matter of law.

 

What conduct, then, does the Michigan Supreme Court expect of average Michigan residents, of average intelligence, in average situations, while trying to traverse the byways of this great state?  I was never quite sure--until now.  Behold, we now see the the only reasonable behavior possible of an average Michigan citizen of ordinary intelligence:

 

 

I hope everyone realizes that the only person behaving correctly in that clip is the girl in the purple top (though I expect, if she fell, her case would be thrown out despite all of her precautions.  Remember, the higher duty is to guarantee that an average citizen never, ever falls.)

While former Justice Cliff Taylor, and current Justices Markman, Young and Corrigan may think this young lady is acting in the only way an average person of ordinary intelligence can, under the circumstances, I have concerns.  I am not sure I would want this young lady operating on me, or drawing up my will, cooking my food, watching my children or operating a car near me or my loved ones.

The over-riding need to make the world safe for insurance companies and corporations leads to absurd results, in most cases, in our great state.

"The role of judges is not to 'do good.'"--Michigan Supreme Court Justice Robert Young, May, 2009.

FULTZ OFF

"The fault lies, not in our facts, but in our Fultz."--William Shakespeare, Julius Caesar

At the recent MAJ Premises Liability Seminar, I shared the dias with Don Fulkerson, an esteemed Appeals specialist, who spoke on the effects of a Michigan Supreme Court case called, Fultz v. Union-Commerce Associates, 470 Mich 460 (2004). 

In Fultz, the plaintiff, Ms. Fultz, slipped and fell in an icy parking lot. She sued the owner of the lot and a default was entered against him. She also sued the snow removal contractor, CML, for failing to plow and salt the parking lot. A jury awarded damages to Ms. Fultz holding that the Defendant contractor owed a common law duty to perform their contract in a reasonable manner and that they breached the duty by not performing their contractual obligation. The appellate court affirmed. The Michigan Supreme Court granted leave to appeal and reversed the lower court.

In Fultz, the Supreme Court held that a contractor is only liable for injuries sustained by a third party if they owe a duty that is “separate and distinct” from their contractual obligations. The Court explained that this separate and distinct duty arises only when a contractor creates a new hazard. A general common law duty to perform the contract in a reasonable manner no longer exists. An excellent analysis of the Fultz case can be found in a piece written by Victoria Shackelford, Fultz v. Union-Commerce Associates: The Supreme Court’s “Separate and Distinct” Fallacy.

At the seminar, Mr. Fulkerson became quite animated about the case and the damage it has done to innocent accident victims. He also stated that since it was decided in 2004, no other state Court, dealing with a similar issue, has cited it as persuasive. In an idle moment after the seminar, as I often do, I consulted YouTube, and found this clip, quite ironically, an insurance company ad:

I wrote to Don, asking whether, under Fultz, the trash removal company would have any liability to the car owner. Don's answer begins, "As indicated at the seminar, there are many who would argue that Fultz would bar the car owner’s claim, because the injury occurred while the contractor was performing the trash-removal contract."

YIKES.

Don did say he thought the he could argue that the situation came within an exception to Fultz that might prevent dismissal, but based on my experience with Michigan review Courts, my money is on the trash removal company.

Things have come to a pretty pass in Michigan, have they not? The YouTube clip ends with a screen shot stating "Life is full of surprises." I don't think they were referring to the surprise of the car owner when his case against the trash removal company was thrown out like the old stove that crushed his "ride."

"The role of judges is not to 'do good.'"--Michigan Supreme Court Justice Robert Young, May, 2009. Mission accomplished.

"THAT AIN'T RIGHT"

While I was in court last week, I received a voice mail from an old friend.  His daughter had been rear-ended on the expressway.  My friend was out of town on business, and left a message that I should call his wife.  The kid rear ended his daughter.  "That ain't right." 

My friend makes a very good living  and has senior position in a large corporation.  The "ain't" in the message was merely an affectation, meant to convey that he/I would make sure that "right" prevailed.  A Republican, tort reform advocate, pro Chamber of Commerce guy, he has not let my questionable choice of profession get in the way of our friendship.

Like many pro-business, tort reformers, tort reform looks real good--all the way up till the time they, or a family member, are affected.  I did not look forward to explaining the Michigan No-Fault system to my friend's wife, but felt fortunate that I didn't have to explain it first to the husband/father.

The young lady was hurt in the accident, went to the emergency room, had various tests including a CT of the head and had been released, with directions to follow up with her family doctor.  She had been throwing up since her release, probably due to a medication reaction. 

Her truck had been insured, but as it was old, the collision coverage had been removed some time before the accident.  Her No-Fault carrier had already informed her that the most she could recover from the negligent driver, for her $2500 truck, was $500.  I explained the reasoning behind the No-Fault system, which allows for medical expenses, lost wages etc., without the requirement that fault for the accident be litigated first.  I also explained why people removed expensive collision coverage from old cars, as the payoff at blue book rates, did not justify the expense.  I explained that the No-Fault system reduced litigation etc.

The wife seemed to understand, but I could envision my friend's reaction when she told him.  "That ain't right," he would say.  The kid who hit his daughter was wrong, and admitted it.  His daughter did nothing wrong.  She was out a car.  And, if the kid had collision coverage, he probably wasn't.  What kind of attorney was Butler, if he couldn't see that right prevailed.  Yeah, Butler, change 35 years of law, and call me when my daughter's check for $2500 comes in.

Well, the practical advantages of tort reform, no-fault insurance, and fewer tort claims are sometimes harder to appreciate when itsadvocates become victims of someone else's negligence.  I never heard back from my friend.  I called later in the week to see how the young lady was doing.  My message has not been returned.  Thank goodness, as I have not had to explain the serious impairment threshold to him--yet.

GREAT INSURANCE COMPANY ADS-WE HAVE A WINNER

I know what the tort-reform, Chamber of Commerce, pro-Insurance, anti-trial lawyer, anti-frivolous(all) lawsuit,  small government(except for corporate bailouts), decreased government spending(except for corporate bailouts) people think about lawyer's ads, cheesy and otherwise.  I assume part of the reason, is that such groups hold themselves to a higher standard.  Well this ad, out of Illinois, cuts the legs, or should I say talons, out from underneath that argument.  This ad is so awesome, I don't know that anything else can ever come close.  I may have to retire the category altogether.  But, before I would consider doing that, I will run the Eaglewoman ad, which is a part of the same series.

Here it is.  WOW.

 

WEB 2.0-ALL THE COOL LAWYERS ARE DOING IT

This is the title of a recent blog post from Jesse Green's  Media and Public Relations for Attorneys and Law Firms Blog .  It makes some excellent points and offers some cautionary advice for professionals who may overly tempted to mix the personal with the professional in their web presence.  For instance:

"You don’t need the intimacy and immediacy of social networking. Clients and the public do not want or need to know that you are a ‘fan’ of sunsets or to get ‘tweets’ from you between deps. No one cares to get daily updates about the status of your Board Room remodeling project."

Recently, I was accepted as a "friend" on the Facebook page of man who also happens to be an elected official in a Southeast Michigan community.  I don't visit Facebook often; in fact, I get messages notifying me of that fact.  But when I went to that gentleman's page recently, the information contained dealt, almost exclusively with his on-line poker experiences and with his "Mafia Wars" progress.  (For the uninitiated, Mafia Wars is an on line game of some sort, or something.)  Good luck to this guy in the next election.

I have no personal use for Twitter, and I am sure someone has beaten me to the punch in calling Twitter's devotees, "Twits".

So, be careful out there.  Twitter's Tweets do allow me to indulge in the guilty pleasure of posting this clip from YouTube featuring Hugh Laurie in a pre-House incarnation as Bertie Wooster in a dramatization of one of PG Wodehouse's classic Jeeves books.  Bertie plays and sings "Tweet, Tweet."

 

MICHIGAN PREMISES LIABILITY-REPORT FROM THE TRENCHES 2

While the prior Report From the Trenches, is based on an actual deposition exchange, this colloquy is not.  The beginning is pirated from the 1939 movie Young Mr. Lincoln, a trial exchange between Henry Fonda as Lincoln and Ward Bond as J. Palmer Cass.  The balance of the script is based on my own experience in countless depositions where defense attorneys attempt to make constructive knowledge of the merely possible the basis of an "Open and Obvious" motion for Summary Disposition.  

If the exchange sounds ridiculous, I apologize.  To the extent that imputed constructive knowledge of possibilities has become the legal standard in Michigan for granting Summary Disposition in premises liability cases, maybe the black robes in Lansing should apologize to the citizens of our state.  

Q:  What is your name, sir?

A:  J. Palmer Cass.

Q:  What does the "J" stand for?

A:  John.

Q:  Anyone ever call you Jack?

A:  Yeah, sometimes.

Q:  Why "J. Palmer Cass?"  Why not "John P. Cass?"

A:  Well...

Q:  Does J. Palmer Cass have something to hide?

A:  I got a right to call myself anything I want as long as it's my own name.

Q:  I guess that's right.  Well, then if its all the same to you, then, I'll just call you Jack Cass.    Mr. Cass, what is your profession?

A:  I'm the manager of the Kroger store here in town.

Q:  How long have you been manager?

A:  20 years.

Q:  Though I am not sure how your attorney, Mr. Smith might answer this question, but, Mr. Cass, have you been a life long resident of the planet Earth?

A:  Hey, what is this?

Def. Atty Smith:  Are you trying to be cute?

Q:  Not at all.  This is discovery.  Frankly, if he is not a life long resident of the planet Earth, then I have a whole different set of questions, believe me.

Def Atty Smith:  We will stipulate that Mr. Jack Cass is a life long resident of the planet Earth, but I object to the relevancy of the question.

Q:  That's nice.  Mr. Cass, as an admitted life long resident of this planet, I assume that you are familiar with the Earth's law of gravity?

A:  I don't know what you are talking about.

Def Atty Smith:  What's the point of this?

GREAT INSURANCE COMPANY ADS

This one is a little different, with that very restrained huckster, Billy Mays, hawking health insurance.

You can tell Billy really believes in this product, as he is not shouting as loud as he does in most of his infomercials. The man exudes credibility, as shown in this spot for Kaboom (and no, it is not a commercial for AIG).

What better man to sell health insurance than a man that can shout about the virtues of a bathroom tile cleaner. Apologize for the terse post, but it is Wings-Pens, Game 1 night.

SHAMROCK BAR ASSOCIATION MAY 12 MEETING

 

The third meeting of the Detroit Catholic Central High School "Shamrock Bar Association" was held on Tuesday, May 12, 2009 at the school.  The featured speaker for the meeting was the Honorable Robert Colombo, pictured above, of the Wayne County Circuit Court, and member of the class of 1968. The CC class of 1968 has made an extraordinary contribution to the legal community, with over two dozen of its members having gone on to become lawyers or judges.  It was announced at the meeting by retired Wayne County Circuit Judge Richard Hathaway (also a member of the class of 1968), that Judge Colombo will be running for a seat on the Michigan Supreme Court in 2010.

Distinguished Jurist Awards were presented to Judge Hathaway, Judge Colombo, and US District Court Judge Sean Cox '75, who are pictured above, left to right respectively, with Fr. Richard Elmer, CSB.

The establishment, sponsorship and coaching of a Mock Trial Team at CC was also discussed.

An album with just over 200 pictures from the event, can be found here.

The meeting was chaired by yours truly, a member of the illustrious Class of 1971.

 

Any CC alum who would like to receive notices of future meetings can contact me through this site.

MICHIGAN PREMISES LIABILITY CASE-REPORT FROM THE TRENCHES

Colloquy from a deposition I attended last week.  Plaintiff sustained injury after slipping on a patch of black ice.  At the time she had been walking between two cars in a parking lot in order to return to the car where her husband was waiting. The accident happened in second week of April, nearly three weeks after the vernal equinox.  How this date relates, as a matter of law, to the definition of "Michigan Winter" as used in many open and obvious case opinions in Michigan, is, as yet, unknown to this writer. 

The questions and comments of the attorneys, rather than the testimony of the client are set out here.

Q.  Have you lived in Michigan all your life?

Q.  Do you agree that the temperature can go below freezing, even after the end of winter?

Q.  Would you agree that the during the night, the temperature is lower than during the day?

Q.  Would you agree that when it is cold, ice can form on top of water?

Q.  Would you agree that, when it is cold, that areas that appear wet, may actually have ice on top of them?

Q.  Would you agree that, in the early morning, the ground may be colder than the air, even when the temperature is above freezing?

AttorneyButler:  Based on these questions, will your client be withdrawing any notice defense in this case?

Def.  Atty.:  We are not waiving a notice defense.

AttorneyButler:  Then you will be trying to impute knowledge of conditions on your client's premises to my client alone?

Def. Atty.:  We are not waiving the notice defense in this case.

AttorneyButler:  Oh, dear.

MICHIGAN OPEN AND OBVIOUS NONSENSE-BROWN V ALTERRA HEALTHCARE

The unpublished Michigan Court of Appeals decision in the case of Cynthia Brown v Alterra Healthcare Corp. (No. 281352) came down on May 12, 2009.  It is a case involving the "open and obvious doctrine", as applied in Michigan premises liability cases.  The opinion is made up mostly of canned, boilerplate paragraphs.  In this regard, the decision resembles most defense SD briefs on the issue, long on boilerplate, short on analysis.

If we accept the legal requirement that, in ruling on Summary Disposition motions, the trial Courts and reviewing Courts are not supposed to be making findings of fact (the task of the jury; hey, who remembers them?), Ms. Brown fell on a patch of black ice on an otherwise clear sidewalk on a late January day.  She testified the ice was clear, and she did not see it before she fell.  The court also determined that there were piles of snow lining both sides of the sidewalk.  Ms. Brown claimed that the ice came from run-off from an open drainpipe on the defendant's property that drained onto the sidewalk.

Pictures taken a few days later were also part of the submissions to the Court.  The Appeals Court panel ruled, that because they could see a darker spot on the sidewalk, where the ice had been, Ms. Brown should have seen a darker spot on the sidewalk the day of the accident, though she had testified she had not.  The Appeals Court found that she should have.

The Court also pointed out all the subjective factors they normally use to find a fact, as a matter of law, that an invisible condition in one place, is open and obvious, because of the existence of unrelated conditions elsewhere, and because of subjective knowledge, or lack thereof on the part of the injured party.  What happened to that objective standard in Lugo v Ameritech?  Sometimes that standard is not sufficient to serve the ends of dismissal.

ARE MICHIGANDERS REALLY TOO STUPID TO ELECT JUDGES?

The title of this post is paraphrased from a piece authored by none other than that legal and intellectual Titan, Dan Pero, said piece having been run on his blog, American Courthouse, on May 12, 2009.  Mr. Pero's article is entitled,  "Are Pennsylvanians Really Too Stupid to Elect Judges?"  The post begins with this incredible paragraph:

"The Philadelphia Inquirer is out with a slate of judicial endorsements, but not before trashing the idea that judges should be chosen by the people through democratic elections.  Voters, the editors grumble, 'may well apply the usual uninformed criteria' when deciding who to put on the bench.  (And these are the same folks who sit around scratching their heads wondering why newspapers are losing readers in droves – to bloggers, no less – and filing for bankruptcy.)"

The logic of that last sentence is unassailable.  According to Dan Pero, newspaper bankruptcies are directly related to suggestions, by newspapers that  judicial selection procedures might need review.

  The May 8, 2009 Philadelphia Inquirer editorial to which Mr. Pero refers, does not "trash" democratic election of judges.  The editorial, entitled "Judicial Endorsements", does begin by asking what criteria voters might use to choose among the 33 candidates for 11 judicial openings in the upcoming election.  Fair question.  When the editorial states,  "...they (voters) may well apply the usual uninformed criteria that often decide these races: candidates' names, gender, ethnicity, party backing, ballot position, slogan, or advertisements",  I think the paper makes a valid point.

 And I don't think that editorial board of the paper is calling the voters "stupid".  I think even someone as politically astute as Dan might be hard pressed to know everything there is to know about the qualifications of all 33 hopefuls.  Such knowledge must be assumed if we are to accept American Courthouse's belief that pure, unadulterated democratic elections can be the only way to select judges.

The Inquirer doesn't want to get rid of elections.  The editorial states:  "The flawed election process strengthens the case for switching to merit-based judicial appointments, with voters' getting a say through retention elections."

No, no, horrible, horrible says Dan Pero.  All states must have the kind of judicial election system we have here, in the great state of Michigan.  (This last statement does not appear in the May 12 post, but is culled from his many pieces on this subject.  In fact, my suggestions that the Michigan system might possibly be flawed, were called "fringe" by Mr. Pero in one of his articles.  Commentary can be found here.)

TATTOO YOU

"Thus, when my 50-something conservative brother got a tattoo two years ago, it was the day the inking died for anyone approaching cool."--Grand Rapids Press-February 15, 2009

The "50-something, un-cool conservative referred to in the article--yours truly.  The author of the column, my loving older sister, Ruth Butler, long time columnist for the Press.

The good news--if I ever run for office I can truthfully include the following plug:  "Mike Butler has been called a conservative by the ultra-conservative Grand Rapids Press, and it ought to know a conservative when it sees one."  Ought to get me the western Michigan Republican vote.  Maybe Dick DeVos will endorse me.

That reminds me of how the Cliff Taylor campaign kept referring to the Wall Street Journal calling the Michigan Supreme Court the "best in the nation."  (Quotes included in the campaign material.)  In reality, the article was a viewpoint piece written by a former Taylor staffer.  The quoted language didn't appear in the article, and certainly wasn't the result of an empirical study done by the Journal's editorial board.

The bad news--my own sister doesn't read my blog, and I must assume doesn't even know I have written one for nearly two years. If she was familiar with my site, she might retract her "conservative" label.  My views have been described as "fringe" by the esteemed Dan Pero of the American Justice Partnership, a group founded by John Engler, former Republican Governor of Michigan.  The site regularly comments on the gutting of the right to civil jury trial by our Republican led Supreme Court, the stifling of corrective legislation by Republican Senate leader Mike Bishop, and the  hypocrisy of tort reformers, among other light-hearted topics.  Hardly the kind of opinions that will have the Michigan Chamber of Commerce waiving my yearly dues.

What really hurts is the knowledge that my sister thinks I am not cool.  How can she say this about a guy who, as an adolescent, and, knowing all the risks, and defying death, swallowed a whole mouthful of Pop Rocks and washed them down with three cans of warm Coke.  (Only wimps used the cold stuff.)

JUSTICE ROBERT YOUNG'S SOUL-KILLING EXPERIENCE

OH, WOE IS HE

On the "Politically Speaking" page of the April 19, 2009 Detroit FreepNews, coverage was given to a recent meeting of Macomb County Republicans, where former Governor John Engler spoke, returning to the scene of the crime as it were.  He has been chairman and CEO of the National Association of Manufacturers since leaving Michigan, where, you might remember he served as Governor from 1991-2003.  His wife is on the board of Freddie Mac, by the way. Odd, isn't it that those three entities, the state of Michigan, the Nation's Manufacturers and Freddie Mac, aren't doing very well, despite various Englers having turned the light of their respective countenances upon them for extended periods from 1991 to the present.

It was not surprising that Michigan Supreme Court Justice Robert Young, an Engler appointee to that Court as well as the Michigan Court of Appeals was also at the Macomb County meeting.  The following quote from Justice Young is contained in a sidebar of the paper:  "We need to take back the Court because it is a soul-killing experience to go to conference with my new colleagues and see them destroy the law."

Curious.  Justice Young, always a stickler for the plain meaning of language, must have been misquoted.  He has only one new colleague on the Supreme Court this year, that is Justice Diane Hathaway, who defeated Justice Young's textualist fellow traveler Cliff Taylor in November, 2008.

Admittedly, Justice Young probably had more fun on the job when he was one of five Republicans on the bench. He was also a member of a sub-group of four Justices, including Justice Maura Corrigan, Justice Stephen Markman, Justice Clifford Taylor and Justice Young, that re-wrote Michigan Law and overturned decades old precedent at an breath-taking rate over the past dozen years.  Justice Young doesn't believe that he and his fellows were destroying Michigan law then.  They were merely correcting innumerable cased wrongly decided by their ignorant and activist predecessors.

AMERICAN COURTHOUSE-ANALYSIS AREN'T US

American Courthouse is billed as the personal blog of Dan Pero, of the American Justice Partnership.  A personal blog by description, I am persuaded that the content is obtained and posts are written either by the AJP's paid staff or unpaid interns.  This should be taken as a compliment by Mr. Pero, as I do not think he is solely responsible for the simple-minded stuff that appears on his blog.  Of course, while I say this, I also mean that "Ol Dan" really doesn't care much what the blog says, so long as the buzzwords "trial lawyers", "tort reform", and frivolous lawsuits" are contained therein.

Take the latest.  The blog has a post on the annual "Wacky Warning Labels" contest run by an organization, that like all others in the tort law area (including some to which I belong, truth be told), by a title including the words "Fair" and "Justice".  This particular entity is called the "Foundation for Fair Civil Justice", and is run by a man named Bob Dori go Jones (vaguely "Zorro-esque" sounding, don't you think?).

Bob Dorigo explains his contest thusly:  "The contest reveals how lawsuits and the fear of lawsuits have driven companies to spend millions on common-sense warnings." 

On to this year's winner.  An ad for the "Off-Road Commode", includes this language:  "Not for use on  moving vehicles."  Here is a link to the website.  Now no one can seriously argue that sales of the Off-Road Commode must not be restricted in any way if the USA wants to emerge from its present economic crisis.  For those who didn't click on the link, the O-RC is a camouflaged toilet seat (ring only-no cover) that fits on to a vehicles trailer hitch.  No assembly required.  One part only,  One size fits all-vehicles that is, it has a five hundred pound weight capacity.  It is perfect for people on the go, but, apparently people on the go, aren't supposed to go while the vehicle is going.  Now, ain't that a hoot!! Yahoo!!

Now, in keeping with the point of the contest, one would think that the winner must have been forced to include the warning because of countless claims made against the makers by folks getting injured while relieving themselves from the back of a moving vehicle.  Ha-Ha.  Darn them frivolous lawsuits.  Darn them trial lawyers.  We need some more darn tort reform.

Well, the reality is somewhat different.  Take a look at the award video.