Five Stories That Matter in Michigan This Week – January 12, 2024

  1. Cannabis Regulatory Agency Announces $1 Million Social Equity Grant Program

Michigan’s Cannabis Regulatory Agency (CRA) announced a $1 million grant program to applicants who have a recreational marijuana license, have eligible Social Equity Program participants, and participate in the CRA’s “Social Equity All-Star Program.”

Why it Matters: The program is intended to encourage participation in the industry by people from communities that have been disproportionately impacted by marijuana prohibition and enforcement.

———

  1. Fraser Trebilcock Welcomes Danielle Lofton to the Firm

We are pleased to announce the hiring of attorney Danielle Lofton who will work primarily in the firm’s Lansing office, focusing her practice on insurance defense.

Why it Matters: Ms. Lofton represents clients with personal injury claims including no-fault cases for several years. She has routinely secured early dismissals through successful motions and negotiated favorable settlements for her clients. Learn more.

———

  1. Department of Labor Issues New Rule on Independent Contractors

This week, the US Department of Labor issued a new rule modifying its analysis for determining whether a worker is an employee, or an independent contractor under the Fair Labor Standards Act. The final rule is effective on March 11, 2024.

Why it Matters: We previously reported on the Department of Labor publishing a Notice of Proposed Rulemaking regarding classification of employee or independent contractor under the FLSA. Under this final rule effective on March 11, 2024, it will provide clearer guidance for employers and how they determine their workers’ classifications, and further protect employees from misclassification.

———

  1. Fraser Trebilcock Attorney Andrew J. Moore Elected to Board of Directors of Catholic Bar Association

We are pleased to announce that attorney ​Andrew J. Moore has been elected to the Board of Directors for the Catholic Bar Association, a national bar association with members in all 50 states. “I am honored to be elected to the Board of Directors, and I look forward to continuing the mission of the Catholic Bar Association,” said Andrew Moore.

Why it Matters: Andrew focuses his practice on general litigation matters, insurance defense, estate and trust administration, real estate transactions, family law, and criminal defense. His experience covers a range of practice areas, from out of court matters such as assisting clients in estate planning and business and tax matters to representing clients at trial in insurance, divorce, and criminal defense proceedings. He also serves on the Board of Directors of the Lansing Catholic Lawyers Guild. Read more.

———

  1. Independent Citizens Redistricting Commission Required to Redraw Seven House Districts

A three-judge panel ordered this week that the Independent Citizens Redistricting Commission redraw seven state House districts by February 2nd, after it was ruled unconstitutional.

Why it Matters: Last year, a group of voters sued the Independent Citizens Redistricting Commission alleging that the Commission had violated the federal Voting Rights Act by drawing maps that impacted black voters’ opportunity to elect their preferred candidates.

Related Practice Groups and Professionals

Cannabis Law | Sean Gallagher
Insurance Law | Danielle Lofton
Labor, Employment & Civil Rights | David Houston
Litigation | Andrew Moore
Election Law

Five Stories That Matter in Michigan This Week – September 22, 2023

  1. Ten Michigan Colleges Will Accept Any State High School Graduate with GPA of 3.0 or Higher

A coalition of 10 public colleges announced this week they will admit any in-state student with at least a 3.0 GPA for admission next fall. The colleges, including Central Michigan University and Eastern Michigan University, also formed the Michigan Assured Admission Pact.

Why it Matters: The Michigan economy requires a well-educated workforce, including high school graduates who are motivated to attend college. According to the Western Interstate Commission for Higher Education, the number of high school graduates in Michigan has been declining since 2008.

———

  1. Michigan Supreme Court Modifies Open and Obvious Legal Doctrine

Recently, the Michigan Supreme Court significantly modified a decades old legal doctrine that will have wide reaching impacts on property owners and lessees. In its decision in a pair of consolidated cases (Kandil-Elsayed v F & E Oil, Inc and Pinsky v Kroger Co of Mich), the state’s high court effectively abrogated a legal doctrine known as “open and obvious.”

Why it Matters: Now, in light of the Kandil-Elsayed and Pinsky decisions, the nature of an open and obvious condition is evaluated as an element of comparative fault that may reduce a plaintiff’s recovery but will not act as complete bar to recover. Moreover, the issue of comparative fault is a question of fact (that is a determination to be made by the jury). Learn more.

———

  1. Attorney Michael H. Perry Honored as “Lawyer of the Year” in Environmental Law in Lansing

Fraser Trebilcock attorney Michael H. Perry has been named the Best Lawyers in America© 2024 Environmental Law “Lawyer of the Year” in Lansing. This is a high distinction, as only one attorney in each practice area in each community is identified as “Lawyer of the Year.”

Why it Matters: “I am honored to be recognized by Best Lawyers© as a 2024 ‘Lawyer of the Year’ for Environmental Law in Lansing,” said Mike Perry. Because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers© is considered a singular honor. Only five percent of attorneys in Michigan are awarded the honor. Read more about Mike.

———

  1. CRA Publishes August 2023 Data; Average Price Decreases

Per data released by the Cannabis Regulatory Agency, the average retail price for adult-use sales of an ounce of cannabis is $94.16, a decrease from $98.65 in July. This is still a large decrease from August 2022, where the average price was $116.84.

Why it Matters: While the prices of cannabis and cannabis-related products continue to decrease and make consumers happy, growers on the other hand are seeing profits decrease resulting in them seeking ways to halt new licenses to be granted in an effort to steady prices. Contact our cannabis law attorneys if you have any questions.

———

  1. Business Education Series – Practical A.I. Business Solutions

Explore the transformative potential of Artificial Intelligence in the business landscape during our Lansing Regional Chamber of Commerce Business Education Series.

Why it Matters: From understanding the capabilities of AI models like ChatGPT to creating customized workflows using API integrations and automation tools, discover how AI can drive innovation and efficiency across industries. Learn more.

Related Practice Groups and Professionals

Higher Education | Ryan Kauffman
Insurance Law | Ryan Kauffman
Environmental Law | Mike Perry
Cannabis Law | Sean Gallagher

Michigan Supreme Court Modifies Open and Obvious Legal Doctrine

Recently, the Michigan Supreme Court significantly modified a decades old legal doctrine that will have wide reaching impacts on property owners and lessees. In its decision in a pair of consolidated cases (Kandil-Elsayed v F & E Oil, Inc and Pinsky v Kroger Co of Mich), the state’s high court effectively abrogated a legal doctrine known as “open and obvious.” Generally speaking, under this doctrine as it had previously been applied in Michigan, a premises possessor (whether that is the landowner, land contract vendee, lessee, or other party with the right to possess the property) did not have a duty to warn invitees of potentially dangerous conditions on the premises if the condition was “open and obvious.”

In practice, the open and obvious doctrine made it a question of law (that is a determination to be made by the judge, rather than the jury) as to whether the condition that caused an injury was discoverable by a person of average intelligence upon casual inspection. The doctrine was often applied in slip-and-fall and other personal injury cases and acted as an initial barrier for plaintiff’s claims. Defendant premises possessors would bring a motion (typically for summary disposition) and ask the judge to rule on whether the condition was open and obvious. If it were, the case would end there, and the plaintiff’s recovery would be barred. In fact, many premises liability claims likely never made it to the court to begin with, because plaintiff’s attorneys recognized the difficulty in getting past the open and obvious doctrine.

Now, in light of the Kandil-Elsayed and Pinsky decisions, the nature of an open and obvious condition is evaluated as an element of comparative fault that may reduce a plaintiff’s recovery but will not act as complete bar to recover. Moreover, the issue of comparative fault is a question of fact (that is a determination to be made by the jury). In other words, juries can consider the premises possessor’s failure to warn in their comparative fault determinations and still award a plaintiff a portion of their damages even when the condition on the premises that caused the injury was open and obvious. Now, when some is injured as the result of a fall, the claim is much more likely to go to the jury.

What happens next is anybody’s guess, but likely effects of this decision include an increase in the number of personal injury lawsuits filed, an increase in the number of personal injury cases going to trial, and across the board increases in property insurance rates for commercial and residential property owners. If you have questions, or require assistance, please contact your Fraser Trebilcock attorney.

This alert serves as a general summary and does not constitute legal guidance. Please contact us with any specific questions.


Ryan K. Kauffman is a Shareholder at Fraser Trebilcock with more than a decade of experience handling complex litigation matters. You can contact him at rkauffman@fraserlawfirm.com or 517.377.0881.

Five Stories That Matter in Michigan This Week – August 11, 2023

  1. CRA Issues Bulletin, Recalling Vape Cartridges Due to Possible Presence of Banned Chemical

On July 21, 2023, the Cannabis Regulatory Agency (“CRA”), issued a public health safety bulletin, recalling more than 13,000 vape cartridges “due to the possible presence of banned chemical residue exceeding the established action limits.”

Why it Matters: Sky Labs, LLC, is the licensed marijuana processor who manufactured the three batches of vape cartridges that were recalled. Businesses operating in the cannabis market are required to adhere to strict rules and regulations laid out by the CRA. Failure to do so can result in steep fines, recalled product, and potential loss of license(s).

———

  1. Business Education Series – Setting Meaningful Goals and Time Blocking for Success

On August 22, 2023, gain valuable knowledge and skills to set meaningful goals, establish priorities, and effectively manage their time through the practice of time blocking.

Why it Matters: Participants will learn practical strategies and techniques to enhance their goal-setting abilities, develop a clear sense of direction, and optimize their productivity. Learn more.

———

  1. Michigan Supreme Court Alters Premises Liability Framework

Michigan courts have long held that premises owners generally have no duty to protect invitees from “open and obvious” hazards. In a recent decision (Kandil-Elsayed v F&E Oil, Inc and Pinsky v Kroger Co of Michigan), the Michigan Supreme Court held that whether a hazard is open and obvious is not an integral part of duty but is instead “relevant to breach and the parties’ comparative fault.” The Court overruled the special-aspects exception, holding that “when a land possessor should anticipate the harm that results from an open and obvious condition, despite its obviousness, the possessor is not relieved of the duty of reasonable care.”

Why it Matters: This decision significantly changes the legal standards in premises liability cases, particularly slip-and-fall cases.

———

  1. Fraser Trebilcock Attorney Thaddeus Morgan Obtains Summary Judgment for Firm Client; Sixth Circuit Affirms Dismissal

The U.S. Court of Appeals for the Sixth Circuit affirmed a decision by the U.S. District Court for the Western District of Michigan, which granted summary judgment for the firm’s client, who was represented by Fraser Trebilcock attorney Thaddeus Morgan.

Why it Matters: The U.S. Court of Appeals for the Sixth Circuit did not find either of the district court’s decisions erroneous, affirming the denial of the Plaintiff’s motion to amend and granting summary judgment to the defendants.

———

  1. Michigan Supreme Court Rules that New No-Fault Law Does Not Apply Retroactively

On July 31, 2023, the Michigan Supreme Court affirmed, in part, a court of appeals decision ruling that medical cost controls in Michigan’s new no-fault auto insurance law do not apply retroactively to car crash victims whose accidents occurred prior to the change in the law.

Why it Matters: As a result of the ruling, drivers who were catastrophically injured in accidents prior to the no-fault must be paid at full rates and not be subject to new cost controls for medical services.

Related Practice Groups and Professionals

Cannabis Law | Sean Gallagher
Business & Tax | Ed Castellani
Insurance Law | Gary Rogers
Litigation | Thaddeus Morgan

Five Stories That Matter in Michigan This Week – August 4, 2023

  1. Michigan Supreme Court Rules that New No-Fault Law Does Not Apply Retroactively

On July 31, 2023, the Michigan Supreme Court affirmed, in part, a court of appeals decision ruling that medical cost controls in Michigan’s new no-fault auto insurance law do not apply retroactively to car crash victims whose accidents occurred prior to the change in the law.

Why it Matters: As a result of the ruling, drivers who were catastrophically injured in accidents prior to the no-fault must be paid at full rates and not be subject to new cost controls for medical services.

———

  1. Marijuana Business Can’t Sue State Authority Due to Federal Illegality of Marijuana

On July 31, 2023, US District Court Judge Paul Maloney dismissed a lawsuit filed by Viridis Laboratories against four employees working for the state’s Cannabis Regulatory Agency stemming from a 2021 recall the agency issued against Viridis, pulling nearly $230 million worth of marijuana from retail shelves.

Why it Matters: In Viridis’s lawsuit, it claims that the recall violated its right to due process under the U.S. Constitution when it was unable to challenge the allegations in court. However, federal law prohibits marijuana and characterizes it as illegal contraband, leading to Judge Maloney dismissing the lawsuit on grounds that constitutional protections do not apply to illegal entities. Learn more.

———

  1. Second Quarter Surpasses First Quarter for Michigan Marijuana Sales in 2023

Per data from the Cannabis Regulatory Agency, the second quarter total sales of both medical and adult-use marijuana sales totaled $752,771,513.25, surpassing the first quarter total sales of $673,367,341.50.

Why it Matters: While the prices of cannabis and cannabis-related products continue to decrease and make consumers happy, growers on the other hand are seeing profits decrease resulting in them seeking ways to halt new licenses to be granted in an effort to steady prices. Contact our cannabis law attorneys if you have any questions.

———

  1. Keep Your Michigan Cottage in the Family

The family cottage is a place for fun and relaxation in Michigan. For many, the family cottage becomes the meeting place for generations and where lifelong memories are made. As a result, it’s often the intent of the owner to pass the cottage on to future generations to enjoy. Unfortunately, challenges such as high property taxes and family disputes can prevent that from happening. These obstacles can be overcome through careful cottage succession planning.

Why it Matters: If you own a cottage in Michigan, our Cottage Law team can help you think through the issues and take the actions necessary to create a cottage plan. A cottage plan usually addresses the concerns through the creative use of a limited liability company (LLC) or a trust to own the property. Learn more from your cottage law attorney.

———

  1. Business Education Series – Setting Meaningful Goals and Time Blocking for Success

On August 22, 2023, gain valuable knowledge and skills to set meaningful goals, establish priorities, and effectively manage their time through the practice of time blocking.

Why it Matters: Participants will learn practical strategies and techniques to enhance their goal-setting abilities, develop a clear sense of direction, and optimize their productivity. Learn more.

Related Practice Groups and Professionals

Insurance Law | Gary Rogers
Cannabis Law | Sean Gallagher
Cottage Law | Mark Kellogg
Business & Tax | Ed Castellani

Five Stories That Matter in Michigan This Week – July 7, 2023

  1. NLRB’s Atlanta Opera Ruling Imposes Stricter Independent Contractor Test on Employers

On June 13, 2023, the National Labor Relations Board (“NLRB”) ruled in the closely watched The Atlanta Opera, Inc. case, restoring the multifactor common-law framework the NLRB established in 2014 for worker classification.

Why it Matters: The ruling is significant because it establishes the test for classifying workers as either employees or independent contractors under the National Labor Relations Act (“NLRA”); the test—a return to pre-2019 standards—makes it harder to classify workers as independent contractors, and independent contractors are excluded from the NLRA’s protections for labor organizing activities. Learn more on the subject.

———

  1. New Federal Law Expands Rights for Pregnant and Nursing Mothers in the Workplace

The federal Pregnant Workers Fairness Act (“PWFA”) took effect on June 27, 2023, and requires employers with 15 or more employees to provide reasonable accommodations to pregnant workers, such as providing more frequent bathroom breaks.

Why it Matters: The PUMP Act requires employers to provide a private lactation space and break times during work for nursing mothers. Contact a Fraser Trebilcock employment law attorney with questions or for assistance.

———

  1. U.S. Supreme Court Rules on Affirmative Action

The United States Supreme Court struck down affirmative action in a ruling recently, when they ruled against the admissions plans of two colleges, Harvard and the University of North Carolina.

Why it Matters: The ruling is causing higher education institutions to review their own admissions process in seeking out a diverse student body. Contact your Higher Education Fraser Trebilcock attorney for any questions.

———

  1. $82 Billion State Budget Approved for Fiscal Year 2024

Last week, the Michigan State Legislature with some bipartisan support approved the $82 billion state budget that will take effect later this year on October 1.

Why it Matters: Looking into the budget, the Department of Natural Resources (DNR) will receive more than $36 million more in funding than last year, the public universities located across the state will receive $2.2 billion, including $482 million from the School Aid Fund under the School Bus budget bill. Community colleges will receive $544 million from the School Aid Fund.

———

  1. Michigan’s New Distracted Driving Law Took Effect June 30

In an effort to mitigate the risks associated with distracted driving, Michigan recently enacted legislation meant to deter and punish instances of distracted driving. Michigan is the 26th state in the United States to pass a hands-free driving law, signifying the growing national consensus around the importance of focused driving.

Why it Matters: The new law, which took effect June 30, 2023, makes holding and using a mobile electronic device while operating a motor vehicle illegal. Learn more about the new law from your Fraser Trebilcock attorney.

Related Practice Groups and Professionals

Labor, Employment & Civil Rights | Dave Houston
Higher Education | Ryan Kauffman
Business & Tax | Ed Castellani
Insurance Law | Gary Rogers

Five Stories That Matter in Michigan This Week – June 30, 2023

  1. Michigan’s New Distracted Driving Law Takes Effect June 30

In an effort to mitigate the risks associated with distracted driving, Michigan recently enacted legislation meant to deter and punish instances of distracted driving. Michigan is the 26th state in the United States to pass a hands-free driving law, signifying the growing national consensus around the importance of focused driving.

Why it Matters: The new law, which takes effect June 30, 2023, makes holding and using a mobile electronic device while operating a motor vehicle illegal. Learn more about the new law from your Fraser Trebilcock attorney.

———

  1. Gain Peace of Mind Through Life’s Toughest Challenges

Family law involves deeply personal and often emotional issues – that can be as complicated as they are sensitive. A strong family law attorney understands the judicial processes and procedures, while also handling your case with care and compassion.

Why it Matters: Fraser Trebilcock attorney Paula C. Spicer has over a decade of experience assisting clients in family law matters. Paula compassionately and efficiently works with clients to help them understand their options and navigate the often challenging and emotional situations. Learn more how she may be able to assist.

———

  1. 6th Circuit Decision Clarifies Rights of Schools to Discipline Students for Off-Campus Speech and Conduct

In a case that involved a student creating a fake Instagram account impersonating a teacher, and the student being suspended by his school, the U.S. Court of Appeals for the Sixth Circuit clarified that schools can regulate student speech—even off-campus speech—that causes or can reasonably be forecast to cause substantial disruption to the educational environment.

Why it Matters: As this case (Kutchinski v Freeland Community School District) demonstrates, off-campus speech can easily make its way onto school grounds given the widespread use of social networks and other digital means of communication by students. While every case of discipline for off-campus speech must be evaluated pursuant to its own unique facts and circumstances, the Sixth Circuit affirmed a school’s rights to take disciplinary action under appropriate circumstances.

———

  1. Governor Whitmer Announces New Support Hubs for Small Businesses

On June 27, Governor Whitmer, along with the Michigan Economic Development Corporation, announced a new program aimed at supporting small businesses in the state by providing additional resources to them.

Why it Matters: The program is designed to allocate new and improved resources to small businesses through funding, direct support, and programming. Learn more about the new program.

———

  1. City of Detroit Approves Second Round of Recreational Cannabis Applications

On June 27, the Detroit City Council approved a second of three rounds of recreational cannabis applications to open up for submission.

Why it Matters: The second round will see a maximum of 50 applications for cannabis operations, broken down into the following categories: 15 adult-use retailer licenses, 15 adult-use equity retailer licenses, five microbusiness licenses, five microbusiness equity licenses, five designated consumption establishment licenses, and five designated consumption establishment equity licenses.

Related Practice Groups and Professionals

Insurance Law | Gary Rogers
Family Law | Paula Spicer
Business & Tax | Ed Castellani
Cannabis Law | Sean Gallagher

Michigan’s New Distracted Driving Law Takes Effect June 30

In an effort to mitigate the risks associated with distracted driving, Michigan recently enacted legislation meant to deter and punish instances of distracted driving. The new law, which takes effect June 30, 2023, makes holding and using a mobile electronic device while operating a motor vehicle illegal. Michigan is the 26th state in the United States to pass a hands-free driving law, signifying the growing national consensus around the importance of focused driving.

Background

The journey to this legislation commenced in early May when the Michigan House and Senate passed House Bills 4250, 4251, and 4252. These bills sought to amend portions of the Michigan Vehicle Code, intending to curtail the surging number of distracted-driving mishaps and fatalities.

Texting while driving was already prohibited in Michigan. However, the no-texting law was instituted during an era when mobile phones were in their relatively nascent stage of adoption. With the current legislation, all mobile phone usage while driving is effectively deemed illegal, reflecting the pervasiveness of such devices and our current understanding of the risks of distracted driving. According to the National Highway Transportation Safety Administration (NHTSA), over 3,500 lives were lost due to distracted driving in 2021.

Understanding the New Law

At its core, the new law restructures Michigan’s Vehicle Code to make using a mobile electronic device for any task illegal, including, but not limited to, making or receiving telephone calls, sending, reading or receiving text messages, viewing, recording or transmitting videos, and accessing, reading, or posting to social networking sites.

Importantly, the law designates holding or using a cell phone while driving as a primary offense, allowing an officer to pull over and ticket someone solely for this violation. However, the legislation provides that police cannot search a driver based on this violation alone.

The Cost of Distracted Driving in Michigan

The legislation imposes penalties for distracted driving, ranging from monetary fines to community service.

    • For the first violation, drivers face a $100 fine or 16 hours of community service.
    • A second violation will result in a $250 fine or 24 hours of community service.
    • If three violations are committed within three years, the driver will be ordered to complete a driver-improvement course.

Stiffer penalties apply to commercial vehicle or school bus drivers, with the first violation attracting a $200 fine or 32 hours of community service, and subsequent violations drawing a $500 fine or 48 hours of community service. Notably, if an at-fault driver is found to be using a cell phone during a crash, any civil fines are doubled.

Potential Liability

A potential secondary cost is the fact that if a driver is involved in a crash causing injury or death while in any way in violation of the new law; the court at trial will instruct the jury that if the driver violated the new statute that the violation creates a prima facie case from which a jury may draw an inference of negligence. In other words, the burden will shift to the user of the mobile electronic device to show that he / she was not negligent. In a normal circumstance, without violation of a statute, the burden of proving negligence is on the Plaintiff, not the Defendant. Violation of the new statute will shift the burden of proof and make it easier for the Plaintiff to convince the Defendant driver was negligent.

Exceptions

The law includes several exceptions. Law enforcement, first responders, and other emergency workers are allowed to use a cell phone while performing their official duties. Similarly, anyone texting or calling 911 to report an emergency is exempted. All drivers, except those with a level 1 or 2 graduated license, may use their device in hands-free modes.

Drivers are allowed to utilize their GPS, provided it is hands-free. Mobile phones can serve as navigation systems if operated in a hands-free mode, for instance, by mounting it on the dashboard or using voice commands. Generally, using voice commands or hands-free modes to use mobile devices is allowed.

Conclusion

As we navigate the digital age, including on our roads, laws must keep pace with technological progress. Michigan’s new distracted driving law is an attempt to improve road safety in the era of smartphones. Get ready to go hands-free on June 30.

This alert serves as a general summary and does not constitute legal guidance. Please contact us with any specific questions.


Fraser Trebilcock Shareholder Gary C. Rogers is recognized as one of the top civil defense attorneys in the area of automobile related cases, and he has co-written Michigan No-Fault Law-The Insurers’ Perspective, a handbook for handling claims under Michigan’s No-Fault Automobile legislation. Gary can be reached at grogers@fraserlawfirm.com or (517) 377-0828.

Five Stories that Matter in Michigan This Week – December 9, 2022

  1. Probate Court May Appoint Guardian Even Though Patient Advocate Already in Place

In the case In re Guardianship of Tyler J. Newland, the Michigan Court of Appeals held in an unpublished decision that a probate court may appoint a guardian for an individual who already has a patient advocate in place. The case involved a hospital that petitioned the probate court for the appointment of a guardian, alleging that a guardian was needed because the advocate for one of the hospital’s patients was not acting consistent with the patient’s best interests.

Why it Matters: This case highlights the need for experienced and effective estate planning legal counsel. For help with your estate planning needs, please contact a member of Fraser Trebilcock’s Trusts & Estates team.

———

  1. Minimum Wage Set to Increase, With or Without Court Action

On Monday, December 5, 2022, the Michigan Department of Labor and Economic Opportunity announced the effective minimum wages for 2023, setting the standard minimum wage at $10.10 per hour.

Why it Matters: The Department’s notice cautioned that the announced rates were subject to change, pending a decision by the Michigan Supreme Court regarding the Michigan Legislature’s amendment to a successful 2018 ballot initiative. In any event, workers and employers can expect higher wage rates in the new year, just how much higher will be determined in the coming weeks and months. Learn more on the subject.

———

  1. The Demise of the Open and Obvious Defense? (Michigan’s Evolution of Premises Liability Law)

Premises liability cases are often litigated in Michigan with considerable difficulty. In a premises liability claim, a possessor of land owes a duty to an invitee to exercise reasonable care to protect them from an unreasonable risk of harm caused by a dangerous condition on the land. However, plaintiffs frequently find difficulty in successfully making claims under a premises liability theory due to the “open and obvious” defense.

Why it Matters: Michigan courts have traditionally held that the hazards presented by snow, snow-covered ice, and observable ice are open and obvious and do not impose a duty on the premises possessor to warn of or remove the hazard. However, the courts appear to be slowly eroding this traditional approach. Learn more on the subject.

———

  1. Tax Changes Coming for Research & Experimental Expenditures

For tax years beginning in 2022, research and experimental (R&E) expenditures are no longer immediately expensed but rather must be amortized over five years (15 years for foreign expenditures). This change to the tax treatment of R&E expenditures was included as a revenue raiser for the federal government to help pay for other tax breaks in the Tax Cuts and Jobs Act passed at the end of 2017.

Why it Matters: Guidance is needed immediately for the 2022 tax year, especially for corporations that must prepare financial statements. The post-2021 tax treatment of R&E expenditures is inconsistent with financial accounting principles that requires most research and development costs to be expensed immediately.

———

  1. Judge Upholds CRA’s Decision to Suspend Licenses for Flint Marijuana Business

As we covered in a previous newsletter, the Michigan Cannabis Regulatory Agency suspended Green Culture’s medical and recreational licenses after they were found to have sold unregulated products that may have contained several contaminants, such as mold and/or bacteria. Following a two-day hearing, a judge sided with the state agency and upheld the suspension.

Why it Matters: Marijuana businesses should heed this as a warning, the CRA are cracking down on businesses that do not follow the strict guidelines and rules laid out by the state agency. Contact our cannabis law attorneys if you have any questions.

Related Practice Groups and Professionals
Trusts & Estates | Melisa M. W. Mysliwiec
Business & Tax | Robert Burgee
Insurance Law | Laura DeMarco
Business & Tax  | Paul McCord
Cannabis Law | Sean Gallagher

Five Stories that Matter in Michigan This Week – December 2, 2022

  1. New Michigan NIL Legislation Takes Effect December 31, 2022

Michigan House Bill 5217 which was passed into law in 2020, takes effect December 31, 2022 and sets new standards for how student-athletes can earn compensation for the use of their name, image, and likeness (“NIL”) in Michigan.

Why it Matters: Student-athletes, covered higher education institutions, and businesses must ensure that NIL deal comply not only with NCAA rules and regulations, but also with the new standards that will apply in the State of Michigan starting in 2023. For example, higher education institutions are prohibited from paying a student-athlete compensation directly for the use of their NIL rights, or revoking or reducing a student-athlete’s athletic scholarship because they earned compensation from an NIL deal.

———

  1. FTC Safeguards Rule Deadline Extended, But Don’t Wait to Implement Data Security Compliance Protocols

The Federal Trade Commission recently extended the deadline, from December 9, 2022, to June 9, 2023, for compliance with the most stringent requirements of its latest rulemaking, revisions to the Safeguards Rule under the Gramm Leach Bliley Act (“the GLBA”).

Why it Matters: The GLBA, which was implemented over 20 years ago, defines how businesses gather, use, and share certain financial information about their customers. The Safeguards Rule establishes certain data security requirements for how a business stores that information. Learn more from our Fraser Trebilcock attorneys on the matter.

———

  1. The Demise of the Open and Obvious Defense? (Michigan’s Evolution of Premises Liability Law

Premises liability cases are often litigated in Michigan with considerable difficulty. In a premises liability claim, a possessor of land owes a duty to an invitee to exercise reasonable care to protect them from an unreasonable risk of harm caused by a dangerous condition on the land. However, plaintiffs frequently find difficulty in successfully making claims under a premises liability theory due to the “open and obvious” defense.

Why it Matters: Michigan courts have traditionally held that the hazards presented by snow, snow-covered ice, and observable ice are open and obvious and do not impose a duty on the premises possessor to warn of or remove the hazard. However, the courts appear to be slowly eroding this traditional approach. Learn more on the subject.

———

  1. Michigan Department of Technology, Management and Budget Prevailing Wage Policy Upheld by Court of Claims

On March 1, 2022, the State of Michigan began to require state contractors and subcontractors to pay prevailing wage on construction-based contracts issued by the Department of Technology, Management & Budget (“DTMB”). The directive established the following guidelines for when the payment of a prevailing wage is required.

Why it Matters: In October, the Michigan Court of Claims sided with the state and ruled that DTMB did not violate the law when it implemented its prevailing wage policy. The court granted DTMB’s motion for summary disposition, resulting in the dismissal of the case.

———

  1. EEOC Issues New Workplace “Know Your Rights” Poster

The Equal Employment Opportunity Commission has issued an updated “Know Your Rights” workplace poster. Employers with more than 15 workers are required to display the poster, which can be found here, in their workplace. The updated poster identifies and summarizes laws that protect workers from discrimination and retaliation, and explains how employees or applicants can file a complaint if they believe that they have experienced discrimination.

Why it Matters: Employment law is a constantly evolving area, so it’s important for employers to stay abreast of new developments, such as this updated poster requirement from the EEOC. Contact a member of our Labor, Employment & Civil Rights team with any questions.

Related Practice Groups and Professionals

Higher Education | Ryan Kauffman
Business & Tax | Robert Burgee
Insurance Law | Laura DeMarco
Labor, Employment & Civil Rights | Aaron Davis