These are some of the cases in which the attorneys of Johnson Rosati obtained favorable results for our clients:
Trial confirms City’s lien for clean up costs against developer. The plaintiff developer hired an unqualified house mover to remove two houses from the developer's property to satisfy the requirements of a special use permit received from the city. When the mover dumped the house in the middle of a city street, the developer promised to pay the contractor the city found to demolish the house and remove the hazard. Later, the developer contacted an attorney and thought better of his deal. He refused to pay the contractor after the city issued his occupancy permit. The city created a special assessment district and placed the cost of the demolition as a lien against the property. The developer refused to pay and sued the city, seeking to enjoin the enforcement of the assessment and damages against the city for allegedly violating his constitutional rights. After a three day circuit court bench trial, the judge issued an opinion in favor of the city, dismissing the damage claim and the request for an injunction. The city was awarded costs and fees. The case was tried by attorney Patrick Aseltyne from the firm's Lansing office.
Course of employment expanded. The Michigan Court of Appeals held that an off duty Deputy’s operation of the Sheriff Department’s airboat, resulting in injuries to Plaintiff, was “in the course of employment,” such that qualified immunity applied under MCL 691.1407(2). The incident occurred during Winterfest, where the Sheriff’s Department offered rides to the public on its airboat by qualified deputies. Though this particular Deputy was off duty, driving relatives and a neighbor’s children, he was “performing work assigned by the employer or engaging in a course of conduct subject to the employer’s control.” The "fact that [the Deputy] may have been motivated, at least in part, by a desire to give his family a ride on the airboat does not change the fact that the act performed was in furtherance of his employer’s purpose." Additionally, the Deputy was only permitted to drive the airboat due to his employment relationship with the Sheriff’s Department, although not specifically directed to do so that day.
Michigan Court of Appeals upholds dismissal of defamation suit against mayor. After a 2007 murder, four young men were taken into custody at the scene, and later released, for their suspected involvement in the crime. One of the young men admitted to shooting the victim, but that confession was later determined to be false after a gunshot residue test demonstrated that he did not shoot a gun on the night in question. After his release, the Mayor of the City, where the crime occurred, was interviewed by a news reporter who asked him to respond to recent demands by family members of the men for an apology on behalf of the City. The Mayor declined to apologize to the former suspects. The Mayor was later sued by all four men for defamation and slander stemming from the interview. The Circuit Court for the County of Wayne granted summary disposition in favor of the Mayor, finding he was absolutely immune from suit as the highest elected official in the City. Plaintiffs appealed this decision and the Michigan Court of Appeals upheld the trial court's dismissal.
Whistleblower's case dismissed because he blew the wrong whistle. An assistant county facilities director applied for but was not chosen for the director's position. He immediately began reporting incidents he regarded as mismanagement by the new director. Meanwhile the state police investigated reports that scrap materials from a county building remodeling project were being sold and the money retained at the building site to provide snacks for the workers on the project in violation of county policy. The police took possession of thousands of dollars in cash from the sale of county property which had never been reported to the county. Plaintiff was fired as he had supervised the project and knew of the practice. Plaintiff filed a whistleblower claim alleging he was fired for incidents regarding the new director that he had reported to the county. Although some of the incidents lead to the termination of the new director, the trial court dismissed the whistleblowers claim stating that plaintiff's knowledge of the scrap for snacks scheme and the failure to properly handle county money was the legitimate reason for firing the plaintiff. The court of appeals upheld the trial court.
A sidewalk is defined to include the paved areas in the street right-of-way that are open to the public and intended for public use. Plaintiff was injured when she tripped and fell over a paved improvement in the berm area as she walked toward the fenced-in parking installed by the adjacent business for use by its employee. The entire surrounding area in between the buildings and the parking lot, right down to the curb at the street, was paved and used for the parking of delivery trucks, a lunch truck, and hi-lo traffic. The City neither installed nor approved any improvement to this area under its sidewalk ordinance. Instead, the paved area was used almost exclusively for business purposes. The business installed and maintained the paved area. Consequently, location of the defective area causing the fall would not constitute a public sidewalk intended for use by the general public. The City's subsequent issuance of a citation to the business requiring repair and restoration of the right-of-way did not change the court's perception that the physical nature of area was not a sidewalk as that term is commonly understood.
Police "Knock and Talk" Action In a case of first impression in the 6th Circuit, the Court of Appeals held that under the "knock and talk" exception to the warrant requirement of the 4th Amendment to the US Constitution, if police have a reasonable belief that someone is home and not responding to the police attempts to make contact, an officer may take reasonable steps to speak with the person even when such steps involve intrusion into private areas around the home, such as the backyard or a deck. In this case, officers investigating a minor in possession of alcohol party went around the back of a home onto the deck to knock at the back door when the minors inside the house failed to respond to their knocking on the front door. The Court also held that the officers could proceed inside the home when they could not get a response from an individual laying on a couch because they had reason to be concerned regarding his health and safety.
Governmental employees asserting immunity need not file an affidavit of meritorious defense in an action for medical malpractice. The Michigan Supreme Court held that governmental immunity is a complete defense against a medical malpractice claim. Therefore, employees need not file an affidavit of meritorious defense unless a final order denying governmental immunity is entered by the court.
Time period shortened for employee to file a discrimination claim. The firm represented the defendant employer in Joliet v Pitoniak, 475 Mich 30 (2006), in which the plaintiff claimed age and gender discrimination by her supervisors. The Supreme Court reversed the trial court and the Court of Appeals and held that a claim of discrimination in employment accrues when the adverse discriminatory acts occur and that a claim of constructive discharge occurring after the alleged discriminatory acts does not extend the statute of limitations for acts that occurred before the employee termination. The Supreme Court specifically overruled its prior decision in Jacobson v. Parda Fed Credit Union, 457 Mich 318 (1998).
Sixth Circuit dismissed Constitutional claims against police officers. City police officers were entitled to qualified immunity in a civil rights action brought by business owners for an unconstitutional search of their business premises. The officers consulted the prosecutor regarding constitutionality of the search and a judge issued a search warrant, demonstrating that the officers had a reasonable belief that the search was supported by probable cause.
Michigan Court of Appeals finds for mental health therapist. Mental health therapist was not liable for the death of a young man who ran into the road outside the Community Mental Health building and was struck and killed. He had sought treatment at the CMH emergency service unit. The therapist had determined that the decedent was delusional but not suicidal. He was cooperative and calm while waiting to complete the process required under the Mental Health Code. When decedent left the building without warning, the therapist asked a security officer to try to convince him to return, but did not order him taken into custody. The Court held that the estate of the decedent could not sustain allegations of gross negligence and deliberate indifference to known psychological needs against the therapist. The Community Mental Health and its executive director were also found not liable.
Mental Health Therapist’s Dismissal Upheld. In a case involving a mental health therapist who was sued by the estate of a deceased juvenile whom she had approved for release from a jail suicide observation cell, the federal Sixth Circuit Court of Appeals recently upheld the lower court’s grant of summary judgment in favor of the therapist. In a published decision, the lower federal court had found that she was not liable for the suicide death of the inmate, which occurred just a few days after he was released from the observation cell, because she did not show deliberate indifference to his known psychological needs, contrary to 42 USC 1983 and the 14th Amendment. The Defendants had rejected a $275,000.00 case evaluation award and opted to argue the motion for summary judgment on the eve of trial.
Weight Discrimination Claim Dismissed. Plaintiff was a previous City Attorney who was not re-hired when the City put the position out for bids. He brought his lawsuit under the Elliot Larsen Civil Rights Act (ELCRA), which prohibits discrimination against the overweight. Plaintiff alleged that during his interview with the City Commission, a Commissioner asked: "If you become City Attorney, will you lose weight"? The Court found that the Plaintiff was an independent contractor under the economic reality test. Accordingly, the court dismissed the case because Plaintiff was not protected by the ELCRA, which protects only employees, or applicants for employment.
Dismissal Of Sex Harassment Claim Upheld. The Michigan Court of Appeals upheld the dismissal of the Human Resources Secretary's claim against the County. She alleged that her boss, the Human Resource Director, created a hostile work environment through jokes, emails, touching, and comments. Plaintiff complained to a County Commissioner about her boss, but did not clearly state that she was complaining about sexual harassment. In finding the County not liable, the court held that Plaintiff did not give the County notice, and an opportunity to correct the situation. Importantly, when the County did become aware, prompt remedial measures were taken.
Sixth Circuit affirms summary judgment in unlawful search, arrest, and prosecution case under federal and state law, and upholds award of attorney fees and costs to Defendants as prevailing parties. After charges against Plaintiff were dismissed by the state court, the Plaintiff filed a federal action, suing various sheriff's detectives and the prosecuting attorney alleging numerous violations of state and federal law, including unlawful search, wrongful arrest, malicious prosecution, and false imprisonment. The Plaintiff argued a lack of probable cause and improprieties in his prosecution. The district court granted summary judgment to the Defendants and, after further briefing, awarded them costs and attorney fees. In a recent published decision, the Sixth Circuit affirmed, finding probable cause as a matter of law despite the dismissal of the criminal charge and upheld the award of costs and fees.
Sixth Circuit affirms summary judgment in jail case where 16-year-old juvenile detainee held in segregation under suicide watch and challenged conditions of confinement. The Plaintiff claimed that there was no basis to detain him in the mental health ward and that doing so was designed to punish him for his reputed involvement in a high profile crime. The federal district court granted summary judgment, finding that the evidence supported the challenged segregation and that the alleged conditions did not violate the Constitution. In a recent published decision, the Sixth Circuit upheld summary judgment where the jail officials followed Michigan law in detaining the youth and where the deprivations imposed were affirmative steps to secure his well being.
Circuit Court Dismisses All Constitutional Claims Against City Arising From Zoning Dispute. City client obtained summary disposition of a multiple-claim lawsuit filed by a plaintiff owner/developer suing for damages for alleged violations of due process, equal protection, taking without just compensation, detrimental reliance, and trespass. The Plaintiff alleged that the City unreasonably refused to rezone the property, refused to grant Brownfield tax incremental financing for Plaintiff's private development, and improperly engaged in selective ordinance enforcement against Plaintiff's property. The Circuit Court of Oakland County agreed with the City's arguments and granted the City's motion for summary disposition on all claims finding that: a) the City had a rational basis for not rezoning the property and not granting public financing; b) the owner had no legal right to force the City to provide public financing for a private project; c) the owner presented no evidence of disparate treatment which would support an equal protection violation; and d) the trespass claim was barred by governmental immunity. The Michigan Court of Appeals affirmed this decision.
Township's Motion for Summary Judgment Granted in Site Plan Case. In a case involving federal and state constitutional claims that the Township violated the Plaintiff's substantive due process rights by intentionally and arbitrarily delaying the approval of the Plaintiff's site plan based on several allegedly pretextual issues, the federal District Court for the Eastern District of Michigan granted the Township's motion for summary judgment. The court ruled that the Plaintiff failed to establish that it was entitled to site plan approval at any point prior to the Township's allegedly "delayed" approval; therefore, no constitutional violation could have occurred. The appeal to the Sixth Circuit Court of Appeals was dismissed by the Plaintiff, who agreed to pay outstanding water and sewer fees.