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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?