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THAT'S RIGHT, YOU'RE WRONG

IN CARRINGTON V WEST SIDE CONCRETE, THE MICHIGAN COURT OF APPEALS QUESTIONS THE SUPREME COURT'S OPINION IN FULTZ V UNION-COMMERCE ASSOCIATES (ARE YOU LISTENING?)

On February 9, 2010, the Michigan Court of Appeals issued its unpublished opinion in the case of Carrington v West Side Concrete No. 289075.  This case represents a direct assault on the Michigan Supreme Court's opinion in the case of Fultz v Union Commerce Associates 470 Mich 460 (2004).

I have always had problems with the Fultz case, and I don't think I am alone in this regard.  I have tried, long and hard, on several occasions to condense the opinion down to a form that understandable to the common citizen.  This is as close as I have come:

If I enter into a contract with someone to do a job, and to do that job in a careful manner, that contract eliminates any responsibility I have to other people if I do the job carelessly. (Simple, isn't it?)

Please see my previous post, Fultz Off.

The Michigan Supreme Court has followed that reasoning since, and has slapped down any Court of Appeals panel that has dared hold otherwise.  See Banaszak v Northwest Airlines, 477 Mich 895 (2006).  In that case the defendant was working on some open holes called "wellways" which it was required by contract to cover when during off work hours.  The defendant had used a flimsy cover which gave way when the plaintiff walked on it, causing her to fall in the hole and injure herself.  The Supreme Court held that since the contract for the job called for the defendant to cover the holes, and the hole was covered, however inadequately, the plaintiff had no case against the defendant.  You see, she was not party to the contract.  The defendant did not owe a duty to her, as a third party, to do the contracted work in careful manner. 

The Court of Appeals had held otherwise in Banascak,and that opinion was overturned by the Supremes.

This sounds just flat out stupid to me, and I think it did to the Carrington Court, which basically said, Fultz may be your opinion, Supreme Court, and we are compelled to follow it and kick out the plaintiff, but we are not persuaded by the "logic" of Fultz and we basically ask you to look at this issue again.

The Carrington Court did find a Michigan Federal Court's reasoning persuasive on this subject of contractor's liability.  Quoting from the opinion of Judge Kennedy in the case of Davis v Venture One Construction 683 N.W. 2d 570 (2009): “A contract between two parties does not determine those parties’ obligations with respect to the rest of the world. Contractual duties do not limit separately existing common law tort duties."

Well said.  Let's hope the Michigan Supreme Court looks at Fultz Court's work, and, like the Kay Kyser, the Dean of the College of Musical Knowledge often said:

"That's right.  You're wrong."
 

DRIVE BY SLAMMING

About the time of the Sotomayor Supreme Court confirmation hearings, I published a post called:  How Does a Michigan Textualist Define Judicial Activism?  In that post I advanced an opinion (among others) that was judicial restraint and what was judicial activism generally depended almost exclusively on whether judges of one's political persuasion made up the majority of a particular reviewing court.  I did not believe this to be a spectacularly original opinion.

The post was written on July 29, 2009.  Early on February 5, 2010, I received the following comment, set forth here in its totality:

"I could not disagree more with your conceptualization of activism and restraint. I find it odd, but not telling, that I have never heard a conservative make such a claim, though often hear it from more liberal-minded folk. But it always comes off as a last-ditch effort to argue that all judicial philosophies are on par, and thereby take a relatively moderate stance, when in reality there is no effective label for the jurisprudence exercised by what is largely considered the "activist" wing of the Court. You can always tell the losing side when it offers stalemate. But at the end of the day, is not some guiding principle is necessary? And though you will inevitably retort with something as trite as "Even Scalia writes opinions in which he discards the textualism he champions," you simply cannot shake the fact that 98% of his decisions do track his textualist philosophy; that, in any event, any admittedly rare misstep on his part is no indictment of the philosophy itself; nor the frighteningly pathetic fact that I know with 99% certainty how a Marshall (Thurgood) or Brennan would decide a case without reading past the facts. The oath is to a document. With all due respect, I find your view on this fatally short-sighted, and without a doubt skewed by the myopic lens of politics. It would be a pleasure to discuss this further, so please do not hesitate to email me."

This comment had come from one JR, from a Virginia.edu domain.

Within one hour I posted the following reply, again in its entirety:

"Ouch, the skewed by politics comment hurts. If you look at my site you will find that I have a whole category on the evils of partisan politics. There is indeed much in what you say, and I agree about the necessity of guiding principles. I still believe (and I may have missed something, as this site is an off hours hobby and I have to run to court) that activism is a label used by the losing side, liberal or conservative. Textualism, in my opinion, has been used as a convenient label, and one that carries the obvious appearance of legitimacy, to mask, at least in Michigan, a results oriented legal philosophy. I am more conservative than liberal, if tags must be applied, and I am currently wrestling with the practical results of the Citizens United case, which may be a correct decision. Anyway, happy to discuss this further. Got to run to my paying job. Thanks JR. Be well."

As I am still not sure how this comment feature works, I posted the reply and then sent it on to JR as a personal email message.  I have not heard from JR, even though JR promised a dialog on the issue.  I operate on the assumption that if you don't reply to an email in two weeks, you are unlikely to respond at all.

When I first read JR's message and saw its domain, I flattered myself that it might have come from a University of Virginia Law School Prof.  But, remembering my own law school days, and reviewing the rather cocksure tone, and the "I'd love to discuss this with you (if you dare)" sign-off, I tend to think that JR is a U of V law student.  This opinion is bolstered by the fact that I have haven't heard back.  Probably moved on to tell someone else how smart he/she is.

By the way, JR, if you have never heard conservatives apply the activism/restraint labels in the way I have suggested, you have not read Michigan Supreme Court opinions by the Engler Four.

In closing, I hope JR is going somewhere warm for the Winter Break, and best of luck on this semester's Con Law final.

 

AGGRESSIVE FOIA RESPONSE-CITY SUES BLOGGER MIKE BUTLER

An interesting feature of Google and/or Typepad is that a blog owner (me) can see what search terms a user (you, for instance) employs when that user finds your site from a Google search.  I saw that someone clicked on this site based on a search for "michael butler florida attorney".  How my site comes up third out of 58,000 hits for such an inquiry is beyond my understanding, but there it is.

However, my attention sure was drawn to the number one hit on the Google Chart, which was this story about a successful lawsuit by the Florida city of Hallandale Beach against blogger Mike Butler (Yikes.)

That woke me up on an otherwise lazy, snowy winter evening.  After making sure that it was, in fact, another Mike Butler involved--it was, I was interested to find that the city sued Mr. Butler merely because he had asked for some records under the Florida equivalent of the Freedom of Information Act.  Rather than merely refuse the request, and let Mr. Butler sue the city for the records, the city sued him, more or less, for asking.  The court ruled against Mr. Butler, and though he wasn't assessed any damages (that's nice), he is $1450 poorer in legal fees.

I am certainly glad that legal reformers have left the Justice system open for such suits as this one.  Maybe Justice Kennedy, author of the recent Citizens United v FEC case, might want to take a look at the chilling effects of this kind of litigation on the First Amendment.

As one of my heroes, the late Judge Kaye Tertzag, might say "Great country, America".  But, as goofy as this suit sounds, it could be worse.  As another friend of mine, attorney Tom Loeb might say, "It could be worse.  It could have really happened to me".

Best of luck, Mike Butler.  Signed, Mike Butler

 

ANOTHER GREAT "NON-FRIVOLOUS LAWSUIT"-IFART MOBILE vs PULL MY FINGER

While tort reformers ceaselessly labor to eliminate the claims of injured accident victims (the so-called "frivolous lawsuit"), they remain remarkably silent when fellow businessmen sue each other over perceived damages to their property interests.

Take the recent controversy between two businesses that have advanced Western Civilization by developing competing applications for the IPhone (a device I do not possess).  In much the same way as the X-Ray paved the way to the MRI, the Whoopee Cushion was merely prelude to the modern digital fart-noise making app for your mobile phone.

It seems that several companies were working on this tech breakthrough at the same time (sort of like the World War II combatants trying to develop a nuclear bomb to win the war).  Two came to market, called IFart Mobile and Pull My Finger.  As both names contain common colloquial expressions used to describe a biological function which is not as much fun to identify in an biologically accurate manner (like cutting the cheese, booper, etc.), problems were bound to result when the products came to market. 

IFart Mobile uploaded a video to YouTube (which I am not going to show you) which used a phrase, "pull your digital finger" when promoting its product.  The "Pull Your Finger" app people took umbrage ("umbrage" is not another word for fart, by the way), and demanded compensation for damage to its business interests.  The parties are now in court on the issue.  "Pull My Finger" did not bring the suit.  Actually, our legal system is so business friendly that IFart Mobile sued first to protect its right to use the phrase "pull your digital finger", without any possible claim of trademark violation from the "Pull My Finger" developers. 

I guess it really comes down to a freedom of speech issue.  So, it just proves that when you let businesses have unfettered access to the courts, everybody wins.  Business interests are protected and everybody's First Amendment rights are protected by the good citizens at IFart Mobile. 

It is good to know that we have our freedoms protected, as you can see from the YouTube video I will show you.  It shows how apps like IFart Mobile and Pull My Finger can become "voices" (to coin a phrase) in our democratic process, breaking up a city council meeting.

God Bless America.

ABA BLAWG 100-ATTORNEYBUTLER.NET INCLUDED OUT

The ABA Journal recently came out with its list of the 100 best legal blogs, as chosen by the ABA Journal's editors.   This list has been thrice compiled, and this site, www.attorneybutler.nethas been thrice excluded.  While this snub cuts me to the quick, I am at least in very good company.  Very good local legal blogs did not make the list-Steve Gursten's Michigan Auto Law Blog, Michigan Lawyers Weekly's Michigan Lawyer , Oakland County Circuit Court Judge Michael Warren's fine blog, America's Survival Guide .  Geoff Fieger's Fiegertime wasn't included, either.

The list did include such exhibits as Corporette.  The latest post on this site is entitled Coffee Break: Bean’s Heritage Tote about a new line of tote bags from LL Bean.  The previous post is The Warmth of Silk. I kid you not.  One of the site's sponsors is Jones New York.  This is one of our best, huh?

Well, folks the votes have been cast, the polls are closed and the results are in.  You could vote for up to 10 of the blogs.   So, I was a bit surprised that only 3 blogs received more than 300 votes---nationally!  The vast majority received less-a lot less.  The leading vote-getter in the business blog category collected a whopping 68 votes.  By the way, there is some justice, Corporette, received only 64 votes in the Lighter Fare category.

Well, it appears that legal blogs have not taken the legal world by storm quite yet. 

I think I'll survive not being listed in the Blawg 100.  I'd hate to think that some year I might nudge Corporette off the ballot.

UPCOMING MEETINGS OF THE SHAMROCK BAR ASSOCIATION

The Detroit Catholic Central Shamrock Bar Association is pleased to announce meetings on March 16 and May 11, 2010, featuring, as guest speakers, two prominent members of the Class of 1980.

 
The first, on Tuesday, March 16, will feature Andy Dillon '80, Speaker of the Michigan House of Representatives, as our special guest.  Andy is the son of Judge John "Jack" Dillon '44, and Andy's name has been prominently featured, in recent weeks as a possible Democratic candidate for Governor.

The event will begin with Mass at 6pm, followed by a casual dinner and social hour.  The program will begin at 7pm.

 

The Association will also present two of the Hon. Richard Hathaway Distinguished Lawyer Awards at this meeting.

 

 

Our second meeting of 2010, Tuesday, May 11 will feature Michigan Attorney General  Mike Cox,  Republican candidate for Governor of the the State of Michigan.

 

Because the Shamrock Bar Association was a group so long delayed in the formation, it will also  present two of the Hon. Richard Hathaway Distinguished Lawyer Awards at the May meeting.

 

Having two meetings before the end of the school year will give the Association an opportunity to develop a proposal for the sponsorship of a mock trial team at CC next year.  I hope to discuss this with school administration before the March meeting and present details to Association members at that time.  Anyone interested in assisting in this project, or about the Shamrock Bar Association and its events, can contact Mike Butler at 734-776-0231, or by email at mbutler@twmi.rr.com .

 

 

GEOFF FIEGER HAS A BLOG-AND I DON'T HATE IT

My clock radio is set to wake us up to WWJ Newsradio 95 every morning.  This does not tempt us to fall back asleep.  Not a lot of fluff and feel good stories at 5:30am.  This was especially the case on Thursday, January 28, when I heard that Geoffrey Fieger was considering a run for Governor of the State of Michigan.  There were a few sound bites from Geoff in which he trivialized every Republican candidate.  It appears that hyperbole is not just for tort reformers.

I have never been a big fan of Mr. Fieger's.  I am sure my opinion, if he learned of it, and if he even knew who I am, would cost Geoff no sleep at night. 

Frankly the theme of this post was to be Geoff's potential as a candidate for Governor.  Unfortunately, I could not locate those WWJ sound bites again, and I couldn't find anything on the story during a short tour of the internet.  However, I did find Geoff Fieger's blog, FiegerTime.  I was prepared to hate it.  Blogs are the perfect medium for ill-informed rants (present blog excepted, of course).  What better vehicle for Geoff Fieger.

However, the blog is not bad.  I think he writes it himself: "....corporations have gotten pro-business judges elected in numerous States".  (have gotten?  not the greatest wording, but a nice, common touch).  I find a I agree with a lot of what Mr. Fieger says, for instance:

"I don’t care if we elect a Republican or a Democrat so long as they are not insane. By that, I mean insane as defined by doing the same things and expecting different results. The next Governor of Michigan will have to be Roosevelt (Teddy AND Franklin) – someone who can break up the corporate stranglehold on government and really represent the interests of working families."

Now, that I like.   And, Geoff's bio lists his favorite quote, which sounds like the battle cry of tort reformers everywhere:

"When you have no basis for an argument, abuse the plaintiff." -Marcus Tullius Cicero

I'll list FiegerTime on my blogroll next time I update it.

PRELUDE TO PODCASTING-EVERBODY HATES LAWYERS

"Good evening, Mr. and Mrs. America, from border to border and coast to coast, and all the ships at sea.  Let's go to press."--Walter Winchell

During 2010, I intend to jump into the podcasting business.  This will be an enterprise, I am sure, that will bring enlightenment and entertainment to, and a boatload of fan letters from, a rapt and adoring audience.  Or not.

Why would a man of my age--and charm, technical ineptitude--and charm, and inexperience--and charm, want to get involved in the broadcasting "game"?  Not sure.  I do have a great face for radio, to use an old joke.  Maybe I want to become a multi-media mogul like Rupert Murdoch.  Maybe because I have a rich, nasal baritone voice that could annoy an audience in a way that my writing cannot. 

Am I motivated by some element of vanity and ego?  Probably.  And irony.  I will love to see the look on my kids faces when I tell them I can be found in the ITunes library.

But I am anxious to try the "radio" approach.  Maybe, as a lawyer, I think I can reach a listening audience with a message (if any), in the way I try to reach a judge or jury through oral argument, opening or closing statement--a way that just doesn't come through in a brief.

Well, we'll see where this takes me.

And though this is contrary to many business models, this enterprise might benefit from some advance thinking and planning.

Here are a few things I'd like to think through as I begin.

GREAT COURTROOM SCENES-DUCK SOUP

Picking up from the previously posted, The Court Martial of Private Harry Speakup, I present this courtroom classic from the Marx Brothers film, Duck Soup.

"I suggest that we give him ten years in Leavenworth or eleven years in Twelveworth."

"I'll tell you what I do.  I'll take five and ten in Woolworth." (pronounced "Woolwoith".)

Sam Waterston, eat your heart out.

MICHIGAN OPEN AND OBVIOUS: A GLIMMER OF SENSE

On January 7, 2010, the Michigan Court of Appeals issued its unpublished opinion in the case of Brown v Eastman Outdoors, Inc. No. 286844.

Mr. Brown slipped and fell on ice at Eastman's business.  He was making deliveries to Eastman at the time.  He injured his knee in the fall, but attempted to continue working anyway.  Ultimately he had to call another driver to finish his route.

Eastman did not, apparently, dispute the existence of ice at the door Mr. Brown used to make his deliveries.  But, as all good Michigan businesses do, it moved for Summary Disposition on Mr. Brown's negligence case, stating that the ice was open and obvious, and so, in spite of any negligence on the part of Eastman, any injury sustained by Mr. Brown was basically his own fault.  He is to blame for attempting to do his job, and not guaranteeing his own safety. 

But, Mr. Brown argued, even though he saw the ice before he fell, the ice was effectively unavoidable because he was told he had to make deliveries at the door where he sustained his accident.  There is indeed a small loophole in the Michigan open and obvious "doctrine" which may preclude dismissal of a case by a judge, if encountering the hazard was "effectively unavoidable".  Unfortunately, most Michigan defendant's get around this by having someone say that there was another door to the business.  Of course, the other door may be an employee's only entrance, or a trapdoor to access the roof, or may be 4 feet wide when the plaintiff is delivering equipment 5 feet wide.  But, generally the bare allegation of another opening in the business does the trick for defendants, and the hazard is held not be be unavoidable.  Case dismissed.  (By the way, it is interesting to note, that in snow and ice cases it is always held as a matter of law that these "alternative entrances" are clear, dry and hazard-free.  How can they know that?)

So it had held by the trial court in Mr. Brown's case. Eastman employees had testified that "plaintiff would have been entitled to make deliveries elsewhere".  The trial court held the hazard was not effectively unavoidable because of the option to deliver to another door.  Case dismissed.

The Court of Appeals looked at the case and said:  Wait a minute.  Plaintiff says he was required to make deliveries at this door.  Defendant says he wasn't.  Isn't that a factual question?  Who is right?  And who is to determine who is right?  And de terming who is right is very important to Mr. Brown's case.  The trial court, without seeing or listening to the witnesses determined, as a matter of law, that the Defendant was right.  Why must the Defendant be right--and right as a matter of law?

Well, in the olden days, in premises liability cases, such issues were decided by juries who listened to all the evidence and made findings on disputed factual issues.  That is there job.  It is not the job of a judge.  This doctrine of Michigan Law is older than the judicially created Open and Obvious "doctrine".

The dismissal of Mr. Brown's case was reversed, and the case will be returned to the trial court for a trial by jury.  At that time, Mr. Brown might win, and he might lose.  However, the mere possibility that a jury might allow Mr. Brown to prevail is a possibility tort reformers want to eliminate.  They want to take that uncertainty out of the corporate profit calculation.

Thanks to Judges Servitto, Fort Hood and Stephens.  They got this one right.  It is but a small step, but welcome nonetheless.