These are some of the cases in which the attorneys of Johnson Rosati obtained favorable results for our clients within the last year.
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. This case was handled by Patrick Aseltyne.
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. This case was handled by Ed Plato and Marcia Howe.
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. This case was handled by Michael Rosati at the trial court, and Marcia Howe on appeal.
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. This case was handled by Ed Plato.
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). This case was handled by Ed Plato.
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. This case was handled by Marcia Howe and Michael Rosati.
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. This case was handled by Patrick Aseltyne and Jason Kolkema.
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. This case was handled by Patrick Aseltyne and Jason Kolkema.
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. This case was handled by Laura Amtsbuechler and James Dyer at the trial court, and Marcia Howe on the appeal.
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. This case was handled by Laura Amtsbuechler and Marcia Howe.
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. This case was handled by Marcelyn Stepanski and Randy Field.
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. This case was handled by Margaret Debler and Marcelyn Stepanski.
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. This case was handled by Carol Rosati and Tim Wilhelm.
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.. This case was handled by Carol Rosati and Tim Wilhelm.