In a travesty of justice, the Michigan Supreme Court ruled on July 25 that the discovery rule is no longer applicable to wrongful death actions--even if it was impossible to bring the suit within three years of the death. The Court reversed decades of precedent in Trentadue v Gorton, a case that arose from the tragic and brutal murder/rape of a woman in Flint in 1986. The killer was able to evade authorities until 2002, when DNA evidence finally linked him to the crime.
Within 6 months of learning the identity of the killer (he worked for a lawn sprinkler company that was servicing the property on which the victim lived), the victim's daughter filed a wrongful death action against the lawn sprinkler company and her former landlord [note: The sprinkler company was owned by the murderer's parents and they knew he had been convicted of assaulting women. The victim had also asked her landlord to provide better security on the premises where she lived]. Even though there was no way for the victim's daughter to know who her mother's killer was until the police connected the DNA evidence to the murderer in 2002, according to the Supreme Court, she is barred from bringing an action by the statute of limitations.
Friday, July 27, 2007
Friday, July 20, 2007
Michigan Supreme Court puts Birmingham park "in the doghouse"
On July 18, 2007, the Michigan Supreme Court issued its Opinion in Bloomfield Estates Improvement Association, Inc v City of Birmingham, holding a dog park to be a violation of a deed covenant restricting land use to solely residential purposes. Further, the Court held that Plaintiffs could enforce the covenant against the city even where they had watched without objection as the land had been used as a park for the past seventy years because a dog park is a "more serious violation" of the restriction.
The majority reasoned that a dog park is not a residential purpose pursuant to the language contained in the deed restriction because a dog park, unlike a fenced in back yard, is not attached to a residence and could contain an unlimited number of dogs. The majority went so far as to equate a dog park with a public kennel.
In its Opinion, the majority also concluded that a party who has failed to object to a violation of a deed restriction does not lose the right to object to a more serious violation of that restriction. Although it admitted that the determination of what is a “more serious” violation is dependant on the facts of each case, it made a conclusory determination that a dog park is a “more serious” violation of the residential purposes restriction than a regular park. In doing so the Court conducted a factual analysis appropriate for a trier of fact. Depriving the jury of its role in cases that require weighing of credibility and application of facts to law, is a dangerous trend that could inevitably serve to upset the delicate balance between the role of the jury as trier of fact and the role of the judge.
The Bloomfield Estates Opinion may have a profound impact on the enforcement of restrictive covenants and on the means in which such covenants are construed in Michigan. Although it is yet unclear how far these impacts will reach, one thing is certain: for Michigan dog lovers, finding a place for casual recreation may no longer be a walk in the park.
The majority reasoned that a dog park is not a residential purpose pursuant to the language contained in the deed restriction because a dog park, unlike a fenced in back yard, is not attached to a residence and could contain an unlimited number of dogs. The majority went so far as to equate a dog park with a public kennel.
In its Opinion, the majority also concluded that a party who has failed to object to a violation of a deed restriction does not lose the right to object to a more serious violation of that restriction. Although it admitted that the determination of what is a “more serious” violation is dependant on the facts of each case, it made a conclusory determination that a dog park is a “more serious” violation of the residential purposes restriction than a regular park. In doing so the Court conducted a factual analysis appropriate for a trier of fact. Depriving the jury of its role in cases that require weighing of credibility and application of facts to law, is a dangerous trend that could inevitably serve to upset the delicate balance between the role of the jury as trier of fact and the role of the judge.
The Bloomfield Estates Opinion may have a profound impact on the enforcement of restrictive covenants and on the means in which such covenants are construed in Michigan. Although it is yet unclear how far these impacts will reach, one thing is certain: for Michigan dog lovers, finding a place for casual recreation may no longer be a walk in the park.
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