Goose attack; Negligence versus premises liability; Nathan v David Leader Mgmt, Inc; Ferae naturae; Glave v Michigan Terminix Co; Whether an animal can qualify as a condition of the land for premises-liability purposes; Tripp v Baker; Contractor duty; Loweke v Ann Arbor Ceiling & Partition LLC

The court held that ferae naturae barred plaintiff’s negligence claims against both defendants, but the complaint stated a viable premises-liability claim against defendant-Ascension. Plaintiff alleged he was attacked by a goose on Ascension’s premises, that employees and security personnel said the goose had been an “ongoing danger” and had attacked others, and that defendants failed to remove it or warn of its presence. He sustained a fractured hip requiring surgery. The trial court dismissed all claims, reasoning that liability for a wild animal requires allegations of “dominion, control, or possession,” and the complaint did not allege either defendant had such control over the goose. On appeal, the court agreed negligence was foreclosed because, absent allegations a defendant “‘tamed, confined, or otherwise controlled’” the animal, ferae naturae “generally applies to preclude relief,” and plaintiff alleged only that Ascension was the “owner and/or possessor of the property,” which “is a claim sounding in premises liability.” It also affirmed dismissal as to defendant-Teachout because the complaint did not allege Teachout possessed or controlled the premises, and contractual obligations did not create “a separate and distinct duty owed to plaintiff.” Turning to Ascension, the court ruled the complaint sounded in premises liability because plaintiff alleged injury from “a dangerous condition on the land.” It held that an animal can qualify as a condition of the land for premises-liability purposes, explaining that in that framework “an animal can be considered a dangerous condition on the land,” and that “a goose, like a dog, can pose an ‘artificial risk’ to invitees.” Because plaintiff alleged the goose was nesting on the property, that Ascension knew of prior attacks, and that Ascension failed to warn or respond, the pleading was “legally sufficient to survive” a summary disposition motion under (C)(8) as to a premises-liability claim against Ascension. Affirmed in part, reversed in part, and remanded.

Unavailable victim; Due diligence; MRE 804(b)(1) & (a)(5); People v Bean; Admission of preliminary exam testimony; Great weight of the evidence; People v Lacalamita

The court held that the prosecution exercised due diligence to locate the unavailable victim, that admission of the victim’s preliminary exam testimony was proper, and that the bench-trial verdict was not against the great weight of the evidence. Defendant was convicted of unarmed robbery and receiving and concealing stolen property arising from a daytime street robbery outside a jewelry store. The victim did not appear for trial, and the trial court admitted her preliminary exam testimony after finding due diligence by the prosecution. On appeal, the court stated former testimony is admissible where the witness is unavailable and was subject to cross-examination. The test for unavailability under MRE 804 requires “a diligent good-faith effort” and is “one of reasonableness,” not whether more stringent efforts could have succeeded. The record showed officers and the prosecutor attempted service at the last known address, mailed subpoena materials, called repeatedly, checked jail, hospital, and medical examiner sources, searched law enforcement and Secretary of State databases, involved a victim advocate, sent multiple letters, and promptly investigated a possible alternate address when it surfaced. The court distinguished Bean because there the prosecution failed to follow a known lead while here there was no known location beyond the last verified address. It found these efforts supported the trial court’s due diligence finding, and because defense counsel cross-examined the victim at the preliminary exam, confrontation was satisfied. Turning to the great-weight claim, the court explained a verdict is against the great weight of the evidence only where evidence “preponderates so heavily against the verdict” that allowing it to stand would be a miscarriage of justice, and that circumstantial evidence may be sufficient and is often strong. Even aside from the victim’s testimony, witnesses described the suspect as a black male in black clothing on a bicycle, police located defendant within minutes and a short distance away, and an officer found the victim’s stolen cross in defendant’s pocket. The victim accepted it when returned, supporting the inference defendant was the perpetrator. Affirmed.

Other acts evidence admitted under MCL 768.27a; Unfair prejudice; People v Watkins; Waived verdict form claim; Ineffective assistance of counsel; Failure to make a meritless objection

Holding that the trial court did not abuse its discretion in admitting other acts evidence about “flea checks” the victim (GT) testified that defendant conducted on her, the court affirmed his CSC I, CSC II, and second-degree child abuse convictions. GT testified that when she “was 9 or 10 years old, the family moved to a new house, which was infested with fleas and bed bugs. Defendant performed ‘flea checks[]’ by telling GT to take off her clothes. She stated [he] ‘would look at my body and he would run his fingers along my body, like on my breast area, on my thighs, and my butt.’ She approximated that these flea checks happened about 50 times over several years.” On appeal, the court concluded that defendant did not identify “any considerations that would warrant excluding the flea check evidence as unfairly prejudicial. He asserts that the number of alleged flea checks, exceeding 50 over several years, prejudiced him and confused the issues in this matter.” He did not make any “effort to substantiate his argument that the evidence confused the issues, other than to state that the evidence was distracting to the jury. However, defendant proffers no evidence that the jury was unduly preoccupied with or distracted by” the evidence. And as to unfair prejudice, he “simply contends that the sheer frequency of the alleged incidents should weigh against their admission, in an apparent inversion of the Watkins factor pertaining to the frequency of other acts. Critically, courts take into consideration ‘the infrequency of the other acts,’ not their frequency, when deciding whether to exclude other-acts evidence as unfairly prejudicial. Thus, the alleged frequency of the acts supported the admission of the evidence, not its exclusion.” The court also found that his jury verdict form claim was waived and that defense counsel was not ineffective for failing to make a meritless objection to the form.

Limits on cross-examination; Right of confrontation; Identity of a confidential informant; Questioning about a prior inconsistent statement; MRE 613; Prosecutorial misconduct; Burden shifting; People v Fields; Severance of charges; MCR 6.120; People v Thurmond; Ineffective assistance of counsel; Sentencing; Habitual offender notice; Judgment of sentence (JOS)

The court rejected defendant’s claims related to limits on defense counsel’s cross-examination and that the prosecution shifted the burden of proof during rebuttal argument. It also held that the trial court did not abuse its discretion in failing to sever drug charges from the homicide charge. Further, defendant did not establish ineffective assistance of counsel, and the court found that he was not entitled to relief related to the habitual offender notice. He was convicted of first-degree premeditated murder, possession with intent to deliver 50 grams or more but less than 450 grams of cocaine, possession with intent to deliver meth, FIP, and felony-firearm. He was sentenced as a fourth-offense habitual offender. On appeal, the court rejected his prosecutorial misconduct claim, noting that “defendant’s closing argument raised an issue pertaining to the victim’s conduct. Specifically, [he] alleged that the victim was involved in an altercation with” another individual (N) earlier in the day at a birthday party. But he failed to call N “to corroborate the victim’s aggressive conduct by having him testify at trial. Also, in closing argument, it was alleged that defendant wrote a letter to” another individual “but no one knew what it said because no one could locate him and he did not testify. The prosecutor’s rebuttal argument was not designed to shift the burden of proof to defendant, but to respond to defendant’s arguments.” The court held that, under “Fields, the prosecutor did not infringe on defendant’s rights or shift the burden of proof. The prosecutor’s theory was that defendant became angry over the entry into his closet where drugs and money were kept, an assertion confirmed by” one of defendant’s friends. Defendant presented an “alternate theory that he acted in self-defense and should be exonerated. The prosecutor’s comments on the validity of defendant’s theory did not shift the burden of proof.” As to the motion to sever the charges, the prosecution “alleged that the presence of drugs and money in the closet that a guest opened to obtain a coat were the impetus for defendant’s anger and for the victim’s involvement in trying to calm” him down. The court rejected his “position that the failure to find drugs and money in the closet warranted severance of the charges.” Affirmed but remanded for the ministerial task of correcting the amended JOS.

Divorce; Property division; Equitable distribution; Marital vs separate property; Cunningham v Cunningham; Commingling; Appreciation; McNamara v Horner; MCL 552.401; Contribution; Reeves v Reeves

The court held that the trial court erred by treating certain retirement accounts and their appreciation as defendant-husband’s separate property without properly determining the marital component and the effect of commingling. Thus, it vacated the entire property award and remanded for revaluation and apportionment. The parties married in 2010, largely kept finances separate, and litigated division of assets in a bench trial. The trial court awarded defendant four retirement accounts, including two Fidelity IRAs created by rollover of earlier accounts, as separate property along with appreciation. Plaintiff-wife appealed as to the Fidelity IRAs and an E*Trade IRA. The trial court’s ruling effectively treated the entirety of the Fidelity IRAs as premarital despite evidence the underlying retirement plan and savings plan included contributions made during marriage. On appeal, the court reiterated that the first step in equitable distribution is categorizing property as marital or separate, that marital property generally includes property acquired or earned during marriage, and that retirement assets may be part of the marital estate. It emphasized that “‘separate assets may lose their character as separate property and transform into marital property if they are commingled with marital assets and treated by the parties as marital property.’” The court held that it was erroneous to classify the Fidelity IRAs entirely as separate where defendant testified the funds were “a mix of marriage and pre-marriage[]” funds and contributions continued until 2016, making the marital portion subject to division under MCL 552.18(1). The court explained that appreciation may also be divisible and distinguished passive from active appreciation. Defendant’s testimony showed active management as to the Fidelity IRAs but it was “unclear whether plaintiff facilitated or assisted defendant’s management efforts such that she is entitled to compensation.” Also, it was unclear whether defendant’s separate property was “commingled with marital funds when they were rolled over into the Fidelity IRAs.” The court directed the trial court on remand to make findings on these issues as to the Fidelity IRAs. It must also similarly address the E*Trade IRA because defendant’s “passive” management testimony was undefined and the record did not establish whether appreciation was purely market-driven or involved active decision-making and facilitation. Because these accounts had significant value affecting the overall distribution, the court vacated the entire property award for reconsideration after proper marital-property determinations.

Proper cause or change of circumstances; Vodvarka v Grasmeyer; Established custodial environment (ECE); MCL 722.27(1)(c); Berger v Berger; Burden of proof; Sabatine v Sabatine

The court held that the trial court did not err in (1) finding proper cause or change of circumstances to revisit custody, (2) finding an ECE existed with both parents, or (3) applying the burdens of proof when ordering joint physical custody with a structured parenting schedule and a school placement determination. Plaintiff-mother previously had sole physical custody with joint legal custody and parenting time “as the parties agree.” Defendant-father moved to modify after plaintiff substantially reduced his time and school-related disputes arose. The trial court held a preliminary hearing, found allegations could constitute proper cause or change of circumstances, held an evidentiary hearing, and entered a written opinion. It granted joint legal and physical custody, adopting a 2-2-3 schedule, and ordering school enrollment in the closer district for the next year absent agreement. On appeal, the court deferred to the trial court’s credibility determinations where evidence, including text messages and school communications, tended to corroborate defendant’s account of substantial historical parenting time and involvement. The court held that the reduction of his parenting time and the school-related issues, including chronic absences and the unilateral school change over defendant’s objection, supported reevaluation because they could significantly affect the child’s well-being and stability. The court also upheld the ECE finding, reiterating that such an environment exists where, over an appreciable time, the child naturally looks to the custodian for “guidance, discipline, the necessities of life, and parental comfort,” and may exist with both parents. The record supported that the child looked to each parent independently during their respective parenting time, and plaintiff’s reliance on a case involving a parent who never had extended sole care obligations was unpersuasive given the evidence of regular involvement by defendant. Finally, the court held that the trial court correctly applied burdens because the analysis turns on whether the proposed change would modify the ECE, not solely on the prior custody label, and where the ECE existed with both parents, defendant’s equal-time proposal required proof by a preponderance while plaintiff’s weekend-only proposal would alter the environment and required clear and convincing evidence. Affirmed.

The Uniform Child-Custody Jurisdiction & Enforcement Act (UCCJEA); “Home state” (MCL 722.1102(g)): Determination that another state is a more appropriate forum; Relevant factors (MCL 722.1207(2)); Harboring error as an appellate parachute

The court held that the trial court did not abuse its discretion in concluding that another state was a more convenient forum and dismissing this child-custody case under the UCCJEA. Plaintiff-father filed a complaint in the trial court “seeking to establish custody, parenting time, and support.” He alleged that he lived here but defendant-mother and the parties’ children now resided in Utah. The court noted that “before the children’s departure to Utah in [6/24], Michigan was their home state because they lived in Michigan most, if not all, of their lives. Moreover, defendant conceded that Michigan was the children’s home state. Accordingly, Michigan was the children’s home state within six months of the filing of this suit in” 12/24. While the trial court acknowledged Michigan’s jurisdiction, it “could still decline to exercise its jurisdiction” based on a determination “that another state is a more appropriate forum.” Its written order “indicated that it communicated with the commissioner involved in the Utah litigation, and that the courts in both states agreed that Utah was a more convenient forum.” While failing “to consider each ‘relevant’ factor under MCL 722.1207(2) and . . . to make explicit findings may warrant a remand for a reevaluation of the factors[,]” the court concluded that “the trial court was aware of the factors set forth in MCL 722.1207(2), having delineated them in its opinion. Moreover, as [it] aptly noted, the key or relevant issues involved the issuance of the PPO based on defendant’s claims of domestic violence, MCL 722.1207(2)(a), the amount of time the children resided in Utah, MCL 722.1207(2)(b), plaintiff’s agreement to proceed with the divorce action in Utah including consent to child issues surrounding parenting time, insurance, and expenses, MCL 722.1207(2)(e), and the nature and location of the evidence to resolve the litigation where multiple law enforcement and child protection agencies in Utah had pending investigations, were familiar with the parties, and more apt to resolve these issues more quickly. MCL 722.1207(2)(f), (g), and (h). Although the trial court did not identify the individual factors when rendering its factual findings,” it was apparent that it “considered the ‘relevant’ factors in its ruling.” Affirmed.

Medical malpractice; Wrongful death; Pandemic Health Care Immunity Act (PHCIA) immunity for medical services in support of the state’s response to the COVID-19 pandemic; MCL 691.1475; “Connection”; Skipper-Baines v Board of Hosp Managers for Flint

Concluding that the trial court erred by granting defendants’ motion for summary disposition on the basis of PHCIA immunity in this medical malpractice/wrongful death case, the court reversed and remanded. The case arose “from an incident during the early months of the COVID-19 pandemic where the decedent, [Newton], fell and sustained injuries during the course of receiving medical treatment at” defendant-McLaren. Plaintiff argued that the trial court erred in granting McLaren summary disposition based on “PHCIA immunity because there was no evidence of a sufficient connection between the medical services defendants provided to Newton and services provided by defendants in support of the state’s response to the COVID-19 pandemic.” The court held that there was “simply no record evidence of an actual connection between the decedent’s fall and services related to providing COVID-19 treatment beyond . . . entirely speculative assertions. Had there been evidence that the medical staff was actually so consumed with other COVID-related patient services that nobody was available to respond to the decedent’s chair alarm, then the requisite connection could have potentially been established.” In this case, defendant-nurse “actually testified that the number of patients that had been assigned to her on that day was within the typical normal range. Without any evidence that these patients, or other patients assigned to other staff, were somehow consuming more of the staffing resources than normal, there is no basis on which to conclude that there was any connection between COVID-19 and the injuries that led to the decedent’s death in this case. There was also no evidence that defendants were somehow prevented from providing appropriate fall mitigation strategies because of the pandemic.”

Declaratory judgment action challenging the constitutionality of MCL 333.2451 (part of the Public Health Code); Mootness; T & V Assocs v Director of Dep’t of Health & Human Servs

Pursuant to T & V, the court held that plaintiff’s claim for declaratory relief to the effect that MCL 333.2451 is unconstitutional is moot. Thus, it reversed the trial court’s conclusion that this declaratory judgment action was not moot, and vacated “the portion of the trial court’s decision ruling on the constitutionality of MCL 333.2451[,]” part of the Public Health Code (PHC). “Plaintiff operates a barbeque restaurant, the Iron Pig,” that was subject to an emergency order entered by defendant in 11/20 in response to the COVID-19 pandemic. Plaintiff filed this action in 2023, “challenging, in part, the constitutionality of MCL 333.2451, on which the subject order was partially based[.]” While the order “had been rescinded, the trial court determined that” this action was not moot, based on the court’s decision in T & V, and reached the merits. The Supreme Court later peremptorily reversed the court’s “decision in T & V, which likewise involved a long-since rescinded emergency COVID-19 order issued under another provision of the” PHC. The court concluded the same analysis the Supreme Court applied there applied here. There was “no dispute that the authority under which defendant issued the contested order, MCL 333.2451, was rescinded before plaintiff” filed this action. Thus, it was impossible for the trial court or the court “to grant plaintiff any relief, because plaintiff presently continues to operate its Iron Pig restaurant unabated. Like the trial court, this Court cannot undo, or otherwise involve itself in the enforcement of, a public health order that no longer exists. Further, as in T & V, circumstances related to COVID-19 have drastically changed since defendant issued the subject order, such that COVID-19 no longer presents an urgently pressing public health crisis. And, as in T & V, it is merely a hypothetical possibility that a similar order may issue again one day, the mere ‘possibility that an issue will recur is not sufficient.’”

Medical malpractice; Wrongful death; Pandemic Health Care Immunity Act (PHCIA) immunity for medical services in support of the state’s response to the COVID-19 pandemic; MCL 691.1475; “Connection”; Skipper-Baines v Board of Hosp Managers for Flint

Concluding that the trial court erred by granting defendants’ motion for summary disposition on the basis of PHCIA immunity in this medical malpractice/wrongful death case, the court reversed and remanded. The case arose “from an incident during the early months of the COVID-19 pandemic where the decedent, [Newton], fell and sustained injuries during the course of receiving medical treatment at” defendant-McLaren. Plaintiff argued that the trial court erred in granting McLaren summary disposition based on “PHCIA immunity because there was no evidence of a sufficient connection between the medical services defendants provided to Newton and services provided by defendants in support of the state’s response to the COVID-19 pandemic.” The court held that there was “simply no record evidence of an actual connection between the decedent’s fall and services related to providing COVID-19 treatment beyond . . . entirely speculative assertions. Had there been evidence that the medical staff was actually so consumed with other COVID-related patient services that nobody was available to respond to the decedent’s chair alarm, then the requisite connection could have potentially been established.” In this case, defendant-nurse “actually testified that the number of patients that had been assigned to her on that day was within the typical normal range. Without any evidence that these patients, or other patients assigned to other staff, were somehow consuming more of the staffing resources than normal, there is no basis on which to conclude that there was any connection between COVID-19 and the injuries that led to the decedent’s death in this case. There was also no evidence that defendants were somehow prevented from providing appropriate fall mitigation strategies because of the pandemic.”

Goose attack; Negligence versus premises liability; Nathan v David Leader Mgmt, Inc; Ferae naturae; Glave v Michigan Terminix Co; Whether an animal can qualify as a condition of the land for premises-liability purposes; Tripp v Baker; Contractor duty; Loweke v Ann Arbor Ceiling & Partition LLC

The court held that ferae naturae barred plaintiff’s negligence claims against both defendants, but the complaint stated a viable premises-liability claim against defendant-Ascension. Plaintiff alleged he was attacked by a goose on Ascension’s premises, that employees and security personnel said the goose had been an “ongoing danger” and had attacked others, and that defendants failed to remove it or warn of its presence. He sustained a fractured hip requiring surgery. The trial court dismissed all claims, reasoning that liability for a wild animal requires allegations of “dominion, control, or possession,” and the complaint did not allege either defendant had such control over the goose. On appeal, the court agreed negligence was foreclosed because, absent allegations a defendant “‘tamed, confined, or otherwise controlled’” the animal, ferae naturae “generally applies to preclude relief,” and plaintiff alleged only that Ascension was the “owner and/or possessor of the property,” which “is a claim sounding in premises liability.” It also affirmed dismissal as to defendant-Teachout because the complaint did not allege Teachout possessed or controlled the premises, and contractual obligations did not create “a separate and distinct duty owed to plaintiff.” Turning to Ascension, the court ruled the complaint sounded in premises liability because plaintiff alleged injury from “a dangerous condition on the land.” It held that an animal can qualify as a condition of the land for premises-liability purposes, explaining that in that framework “an animal can be considered a dangerous condition on the land,” and that “a goose, like a dog, can pose an ‘artificial risk’ to invitees.” Because plaintiff alleged the goose was nesting on the property, that Ascension knew of prior attacks, and that Ascension failed to warn or respond, the pleading was “legally sufficient to survive” a summary disposition motion under (C)(8) as to a premises-liability claim against Ascension. Affirmed in part, reversed in part, and remanded.

Child’s best-interests; Relative placement

The court held that the record reflected “the trial court clearly recognized that [the child] DDR was placed with his mother but that termination was nonetheless in DDR’s best interests.” Thus, it affirmed termination of respondent-father’s parental rights. “DDR was hospitalized for severe burns when he was approximately seven months old, while in respondent’s care and the mother was at work.” He subsequently pled guilty to second-degree child abuse and was imprisoned. DDR was placed with his mother. “The trial court explicitly recognized DDR’s placement with his mother multiple times during its best-interests determination. It reasoned that DDR’s need for permanency, stability, and finality would be better served with his mother, and that, if it ‘were to deny [the termination petition], then custody could be sought, and the child would have to see the perpetrator of these acts on a regular basis, especially, as a child.’”

Reasonable reunification efforts; Accommodations; Child’s best interests

Concluding that: (1) the trial court did not err by finding that the DHHS made reasonable efforts toward reunification, and (2) termination of respondent-father’s parental rights was not in the child’s (MSS) best interests, the court affirmed. He claimed the “DHHS did not provide reasonable accommodations for alleged cognitive disability in the case service plan. The trial court’s service plan directed father to complete a psychological evaluation, maintain contact with caseworkers, and regularly visit MSS. Case workers repeatedly suspected that father had a cognitive disability, although [he] never fully specified the nature of that disability.” Indeed, he “stated he was not diagnosed with a mental impairment and did not take ‘mental health medication.’” The father’s “counsel likewise claimed there were no allegations to justify ordering a psychological evaluation. The trial court also stated it would appoint a guardian ad litem for [him] at his counsel’s request, but there is no evidence a guardian was ever appointed. MSS was in DHHS’s care for over three years, yet father did not complete a psychological evaluation before the adjudication.” According to B, who was then MSS’s caseworker, “he continually changed his phone number, preventing her from contacting him to schedule visits. Father also did not attend multiple scheduled visits while he lived in Michigan in 2024.” As to therapy and parenting classes, he “was terminated from those services in [6/22] because he did not want to participate.” The DHHS referred respondent “for specialized parenting classes to accommodate his suspected disability.” But he did “not attend all of those classes and did not complete the classes before the adjudication.” He also did “not identify what specialized services would have accommodated his alleged disability, nor how he would have benefited from them.” The record showed the “father did not complete or benefit from the services [the DHHS] offered, even the services intended to discern and accommodate his suspected but unconfirmed mental disability.”