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Township loses specious immunity arguments but is not sanctioned

Attempting to take advantage of the Republican judicial majority's over-broad interpretation of governmental immunity, Ingham County's Charter Township sought immunity for injuries caused by one of its police officers in a car accident.  The cop backed out of his driveway in his Township-owned cruiser, directly in front of Carl Mennare, causing Mennare serious head injury.  When Mennare sued, the Township's attorneys argued that the collision was the neighbor's fault because she allowed a hedge on her property that obstructed the officer's view.  The Judge agreed with Mennare's attorneys that the hedge in the right-of-way was not legal fault by the neighbor.

The Township then argued that Mennare should be forced to submit to an Independent Medical Examination on the eve of trial.  The Plaintiff objected, noting that it had twice arranged to attend IMEs with Defense doctors only to have the IME cancelled by the doctor at the eleventh hour.  The Judge agreed with the Plaintiff that it was too late to conduct an IME with a third doctor and the Township had "slept on its rights" to secure an "independent" examination.

The Plaintiff presented the testimony of several treating physicians and a neuropsychologist to confirm his closed head injury (CHI).  The Defendant presented the testimony of a single Ph.D. who argued that Plaintiff had not suffered a CHI, was not disabled, and merely suffered from "emotional distress."  The Ph.D. refused to answer, on cross-examination, Plaintiff's inquiries with regard to whether he was qualified to diagnose an actual medical injury, conceding that he was not qualified to offer that testimony.  The Plaintiff's attorneys then sought a "directed" verdict of fault and serious injury.  The Judge agreed with Mennare's attorneys and sent the case to the jury to assess damages.  After a six-day trial, the jury awarded Mennare economic and non-economic damages, but the Township appealed all of the above rulings.

The high court noted the extensive evidence of CHI and the Defendant's failure to refute that evidence with medical testimony and found no question of fact with regard to the treating doctors' evidence of serious injury.  It also rejected the Township's argument that non-economic damages were barred under the immunity statute, because Mennare had not suffered a "bodily injury." The court noted that the Defendant had not timely raised this issue, had not objected to the jury instructions or verdict form that allowed an award of non-econmic damages, and that high court interpretations of the law are not normally given retroactive effect to pending cases.  (Republican high court judges recently reinterpreted a decades-old statute and ruled for the first time that head injury victims cannot collect non-economic damages for bodily injury from governmental entities in Mennare's circumstances.)

With regard to the IME issue, the high court noted that the Defendants were given nearly 18 months to conduct the IME, including extensions, and failed due to their own experts' non-cooperation.  Under the circumstances, it was not an abuse of discretion for the trial judge to deny the request for an IME long after the deadline and on the eve of trial.  Finally, the court noted that since the hedge which the officer claimed interfered with his sight was not even on the neighbor's property, it was appropriate for the trial judge to reject his attempt to blame the neighbor for contributory fault:  the neighbor was not legally in possession of the right-of-way and owed no duty to trim the hedge.


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Traverse City, Michigan 49684
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