Memorandum Regarding Negligence of Losing Item - PDF by sge21080


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									                                                                                                                                  October 2006

                                                  FROM GARAN LUCOW MILLER ’S MUNICIPAL LAW DEPARTMENT

                                                    GOV LAW
 Monthly Publication for Michigan Cities, Townships, Villages and Schools                                      

 Garan    Lucow     Miller,    P.C.        1000      Woodbridge         Street       Detroit,     Michigan       48207            313.446.5501

               From the Editor                                                             MUNICIPAL LAW UPDATE
                                                                                               by Jami E. Leach
                   by John J. Gillooly

Campaign Reminders                                                           Highway Exception
         In just a few days, people around the state will                    ‚     The plaintiff, who is blind, tripped on a city
travel to their local polling places to exercise their                             sidewalk which had a one and one half inch height
privilege to vote. Just several days later, if history repeats                     differential between slabs. MCL 691.1402a(2)
itself, several lawsuits will be filed alleging illegal use of                     creates a rebuttable inference that the sidewalk
municipal facilities or equipment in connection with the                           was maintained in reasonable repair if the height
elections. Most cases are brought under the Michigan                               differential is less than two inches. The city had
Campaign Finance Act and are often very politically                                a policy to repair the sidewalk when the height
charged and should be avoided.                                                     differential reached 3/4 of an inch or more.
                                                                                   However, the Court held that one cannot
      Following these basic ground rules will go a long                            substitute the city’s policy for the state’s
way toward protecting you and your municipality:                                   statutorily drawn policy to rebut the inference. In
                                                                                   this case, plaintiff did not present evidence
     • It is not proper to use or authorize the use of                             sufficient to rebut the presumption and summary
       public funds or resources to make an election                               disposition was appropriate. Allgaier v City of
       contribution.                                                               Warren, Unpublished Court of Appeals
    • The act also provides that personnel, office space,                          No.268102, issued August 22, 2006.
       computers and postage may not be used.
     • A recent Court of Appeals decision allowed                            Motor Vehicle Exception
       sanctions to be imposed against the losing party in                   ‚     The motor vehicle exception to governmental
       an election case.                                                           immunity did not apply where a student started a
                                                                                   vehicle during auto-shop class causing an injury to
       Garan Lucow Miller is pleased to assist your                                plaintiff. In this case, the student was not the
community with its election processes. Let us help you                             school’s “officer, agent or employee” under the
understand and comply with the Campaign Finance Act.                               motor vehicle exception. Moreover, the vehicle
                                                                                   was not being “operated” when the engine was
                                                                                   started, not for driving purposes, but for
                                                                                   instructional purposes. Stringwell v Ann Arbor
                                                                                   Public Schools, Unpublished Court of Appeals
                                                                                   No.264252, issued August 15, 2006.

                                                 GARAN LUCOW MILLER, P.C.
GARAN LUCOW MILLER ’S GOV LAW                                                                                                    PAGE 2

Public Building Exception                                                   ‚        Summary disposition to Township and Fire Chief
‚      For purposes of the public building exception to                              affirmed one more time. The defendants were not
       governmental immunity, in determining whether                                 liable under state or federal law for the very
       an item or area outside the four walls of a building                          unfortunate deaths of several children in a house
       is “of a public building”, the courts should                                  fire. Dean v Childs, Unpublished Court of
       consider whether the item or area where the injury                            Appeals No.268921, issued October 3, 2006.
       occurred is physically connected to and not
       intended to be removed from the building. In this                    Proprietary Function
       case, the alleged defect is the lack of a physical                   ‚      Defendant is owned by the City of Flint and is
       connection between the sidewalk and the covered                             entitled to summary disposition because the
       entryway; therefore, the area complained of is not                          proprietary function exception to governmental
       physically connected to the building and the                                immunity does not apply. Simply because the
       exception does not apply. The Township is                                   defendant competes with private hospitals and is
       immune. Romans v Highland Twp, Michigan                                     self-supporting does not lead to the conclusion
       Supreme Court No.130914, issued September 29,                               that defendant’s primary purpose is to produce a
       2006.                                                                       profit. The City has a legitimate desire to conduct
                                                                                   an activity on a self-sustaining basis. Holliday v
Gross Negligence                                                                   Hurley Medical Center, Unpublished Court of
‚      There was a question of fact as to whether the                              Appeals No.267614, issued September 26, 2006.
       wrestling coach was grossly negligent when he
       approached plaintiff from behind and, without                        Freedom of Information Act (FOIA)
       alerting plaintiff, took him down to the floor and                   ‚     Plaintiff requested documents under the Freedom
       performed two successive rolls resulting in a                              of Information Act (FOIA) including personnel
       broken arm. Reaume v Jefferson Middle School,                              files of various employees including the file of a
       Unpublished Court of Appeals No.268071, issued                             friend who was involved in litigation with the
       August 15, 2006.                                                           defendant. The Defendant denied the FOIA
                                                                                  request based upon an exemption for “records or
“The” Proximate Cause                                                             information relating to a civil action in which the
‚      The Chelsea Area Construction Agency (CACA)                                requesting party and the public body are parties”.
       and two of its employees are entitled to                                   The defendant argued that it was clear the plaintiff
       governmental immunity in connection with                                   submitted the FOIA request to obtain information
       damages plaintiff sustained because of shoddy                              for her friend who was already in litigation with
       construction. Plaintiff claims the defendants                              defendant. In ruling in favor of plaintiff, the court
       allowed the work to pass inspection. The Court                             pointed out that initial and future uses of
       held that the two employees were immune                                    information requested under FOIA are irrelevant.
       because their negligence, or even gross                                    The court admitted that this was indeed an absurd
       negligence, was not “the proximate cause” of the                           result, however, it was bound by the terms of the
       alleged damages. Rather, “the one most                                     unambiguous statute and the personnel files were
       immediate, efficient, and direct cause” was the                            not exempt. Taylor v Lansing Bd of Water &
       shoddy workmanship. The Court also held that                               Light, ___ Mich App ___ (2006).
       CACA, which is a public body established
       pursuant to and in accordance with statutes, was a                   ‚        While a person is entitled to a copy of a public
       governmental agency engaged in a governmental                                 record under FOIA, the municipal employee’s
       function and therefore it too was immune.                                     request that a second FOIA request be made
       Chaconas v Lima Township, et al, Unpublished                                  before the copy would be furnished did not violate
       Court of Appeals No.258979, issued August 10,                                 the act. A public body is not required to
       2006.                                                                         immediately furnish copies during the inspection

                                                GARAN LUCOW MILLER, P.C.
GARAN LUCOW MILLER ’S GOV LAW                                                                                                   PAGE 3

       of records, but is allowed a reasonable period of                   Takings
       time to comply with the request. Yourdan v Brown                    ‚     Pursuant to its general police power, the City has
       City Community Schools, Unpublished Court of                              the authority to enact regulations that regulate
       Appeals No.260419, issued October 3, 2006.                                public safety, public health, morality, and law and
                                                                                 order. Requiring property owners to connect to a
‚      A public body’s duty is to conduct a good faith                           municipal water supply is rationally related to the
       search for the records requested. A public body is                        legitimate government interest of promoting the
       not required to revisit old FOIA requests if                              public health by ensuring a safe and pure water
       documents are discovered later. Yourdan v Brown                           supply. The ordinances do not deprive the
       City Community Schools, Unpublished Court of                              property owners of economically viable use of
       Appeals No.260419, issued October 3, 2006.                                their properties and do not effect an
                                                                                 unconstitutional taking. City of Gaylord v Maple
Civil Rights Acts                                                                Manor Investments, et al., Unpublished Court of
‚      Plaintiff was the deputy city administrator who                           Appeals No.266954, issued August 8, 2006.
       was terminated, allegedly in violation of the
       Whistleblowers’ Protection Act (WPA). There                         ‚        Plaintiffs failed to make out a case of regulatory
       was no violation of the WPA because plaintiff                                taking in connection with zoning ordinances and
       could not prove that he actually reported an                                 variances surrounding vacant land they purchased
       impending potential violation of the City Charter                            in defendant city. Plaintiffs purchased the lot for
       to anyone. DeMaagd v City of Southfield,                                     $5,500. It was later determined that the lot was
       Unpublished Court of Appeals No.267291, issued                               not buildable due to its size. That plaintiffs’ own
       August 10, 2006.                                                             appraisal expert testified that if the lot were
                                                                                    buildable it would be worth $160,000 establishes
‚      The Persons with Disabilities Civil Rights Act                               that plaintiffs’ expectations regarding the
       (PWDCRA) does not impose a duty upon an                                      buildability of the lot were not reasonable.
       educational institution to provide an opinion on                             DiCicco v City of Grosse Pointe Woods,
       why a student is having academic difficulties or to                          Unpublished Court of Appeals No.265163, issued
       diagnose any conditions a student may have.                                  August 8, 2006.
       Moreover, a defendant is not liable under the Act
       simply because it fails to grant some of the                        Discovery
       requested accommodations, so long as the denial                     ‚     Although parties are permitted to obtain all
       is not unreasonable. Buck v Thomas M. Cooley                              relevant, nonprivileged information through the
       Law School, ___ Mich App ___ (2006).                                      discovery process, MCR 2.302(B)(1), the
                                                                                 judiciary generally may not interfere with a
‚      The Elliott-Larsen Civil Rights Act (ELCRA) did                           legislative decision-making process by allowing
       not apply to plaintiff’s alleged discrimination on                        inquiry into the thought processes of legislative
       the basis of weight claim because he was not an                           officials. This rule does not preclude deposing
       employee but rather an independent contractor.                            individual board members, but merely inquiry by
       There was no doubt that the position of City                              plaintiff into the motivations and understandings
       Attorney in this instance was an independent                              of the members regarding adoption of the
       contractor position rather than that of an                                reorganization plan. Goodman v Genesee County,
       employee/employer. Hacker v. City of Mount                                Unpublished Court of Appeals No.266955, issued
       Clemens, Unpublished Court of Appeals                                     August 8, 2006.
       No.267403, issued September 26, 2006.

                                               GARAN LUCOW MILLER, P.C.

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