Action under 42 USC § 1983 for violation of plaintiff’s substantive due process rights under the Fourteenth Amendment; Handling of a dangerous dog retrieval; “State-created danger” doctrine; Whether there was an “affirmative act”; McQueen v Beecher Cnty Schs; Summar ex rel Summar v Bennett; Whether defendant-animal control officer’s actions “directly increased” plaintiff’s vulnerability to danger by a third-party; Municipal liability

[This appeal was from the WD-MI.] The court held that plaintiff-Steeb’s substantive due process claim against defendant-animal control officer (Ehart) was properly dismissed where Steeb failed to plead an affirmative act sufficient to invoke the state-created danger doctrine. After he was disfigured and injured during a dog attack, Steeb sued Ehart and defendant-City of Battle Creek under § 1983 and Michigan tort law. Steeb alleged that Ehart knew the dog he was called to retrieve was dangerous, but had Steeb’s friend (F) place the dog in the containment area in the pickup truck Ehart drove to the scene. After showing F “how to close the gate to the containment area once the dog was inside[,]” Ehart allegedly returned to the cab of the truck. The dog then attacked F and mauled Steeb when he tried to save her. The district court dismissed the federal claims and declined to exercise supplemental jurisdiction over Steeb’s state-law claims. The court reviewed its precedent on the state-created danger doctrine and held that Steeb’s claim failed where he could not show that Ehart engaged in “‘an affirmative act that create[d] or increase[d] the risk’ that the plaintiff would experience private acts of violence.” The court found it significant that F, who knew the dog was dangerous, “voluntarily assumed” the risk of a dog attack when she attempted to coax the dog out of the house and secure it in the truck. “When the dog in fact attacked her, Steeb tried to intervene, and the dog mauled him too. But due to [F’s] knowing choice, the tragic circumstances alleged in the complaint fall short under our precedents of plausibly alleging that Officer Ehart’s actions directly caused the risk that led to Steeb’s injuries.” The court also upheld dismissal of the municipal liability claim against the City because there was no constitutional violation. Affirmed.

Action under 42 USC § 1983 for violation of plaintiff’s substantive due process rights under the Fourteenth Amendment; Handling of a dangerous dog retrieval; “State-created danger” doctrine; Whether there was an “affirmative act”; McQueen v Beecher Cnty Schs; Summar ex rel Summar v Bennett; Whether defendant-animal control officer’s actions “directly increased” plaintiff’s vulnerability to danger by a third-party; Municipal liability

[This appeal was from the WD-MI.] The court held that plaintiff-Steeb’s substantive due process claim against defendant-animal control officer (Ehart) was properly dismissed where Steeb failed to plead an affirmative act sufficient to invoke the state-created danger doctrine. After he was disfigured and injured during a dog attack, Steeb sued Ehart and defendant-City of Battle Creek under § 1983 and Michigan tort law. Steeb alleged that Ehart knew the dog he was called to retrieve was dangerous, but had Steeb’s friend (F) place the dog in the containment area in the pickup truck Ehart drove to the scene. After showing F “how to close the gate to the containment area once the dog was inside[,]” Ehart allegedly returned to the cab of the truck. The dog then attacked F and mauled Steeb when he tried to save her. The district court dismissed the federal claims and declined to exercise supplemental jurisdiction over Steeb’s state-law claims. The court reviewed its precedent on the state-created danger doctrine and held that Steeb’s claim failed where he could not show that Ehart engaged in “‘an affirmative act that create[d] or increase[d] the risk’ that the plaintiff would experience private acts of violence.” The court found it significant that F, who knew the dog was dangerous, “voluntarily assumed” the risk of a dog attack when she attempted to coax the dog out of the house and secure it in the truck. “When the dog in fact attacked her, Steeb tried to intervene, and the dog mauled him too. But due to [F’s] knowing choice, the tragic circumstances alleged in the complaint fall short under our precedents of plausibly alleging that Officer Ehart’s actions directly caused the risk that led to Steeb’s injuries.” The court also upheld dismissal of the municipal liability claim against the City because there was no constitutional violation. Affirmed.

Online contracts; Action under the Telephone Consumer Protection Act (TCPA); 47 USC § 227; Whether there was an “offer” & “acceptance” that created a binding contract to arbitrate when plaintiff clicked buttons on a website

[This appeal was from the ED-MI.] The court held that under the governing state law (California), plaintiff-Dahdah and the website “LowerMyBills” formed a binding arbitration agreement when he clicked specific buttons on the website, consenting to the Terms of Use. Dahdah went to the online site LowerMyBills.com seeking suggestions regarding house refinancing. This site informs users that if they click certain buttons, they are agreeing to its hyperlinked “Terms of Use.” They included a mandatory arbitration provision. LowerMyBills referred him to defendant-Rocket, who then began repeatedly contacting Dahdah, despite his listing his number on the Do Not Call registry and telling Rocket to stop. He sued under the TCPA. The district court ruled that there was no binding contract formed and denied Rocket’s motion to arbitrate. Applying California state law on contract formation, which employs an “objective test” regarding both “offers” and “acceptances,” the court held that the same laws apply online as in the “real world.” In this case, LowerMyBills proposed a “hybrid” offer under California law. To “qualify as a valid offer, the website’s proposal must give ‘reasonably conspicuous’ notice that a user will accept the terms by clicking a button, signing into an account, or taking a similar action. . . . And to qualify as a valid acceptance, the user must objectively show assent to the terms by (for example) taking the specified action.” Courts make the determination as to “conspicuousness” considering the totality of the circumstances. The court held that “LowerMyBills and Dahdah formed a binding arbitration agreement. LowerMyBills’ website told users that if they click specific buttons, they would ‘consent’ to its Terms of Use (including the arbitration provision).” The court found that, while it was a close question, “LowerMyBills website made a reasonably conspicuous offer” despite the use of a small font, and it informed “users that they would accept its Terms of Use if they ‘perform[ed]’ a ‘specified act’: ‘clicking’ the ‘Calculate’ and ‘Calculate your FREE results’ buttons.” And Dahdah did not dispute that he clicked them. This constituted “a valid acceptance.” Reversed and remanded.

Online contracts; Action under the Telephone Consumer Protection Act (TCPA); 47 USC § 227; Whether there was an “offer” & “acceptance” that created a binding contract to arbitrate when plaintiff clicked buttons on a website

[This appeal was from the ED-MI.] The court held that under the governing state law (California), plaintiff-Dahdah and the website “LowerMyBills” formed a binding arbitration agreement when he clicked specific buttons on the website, consenting to the Terms of Use. Dahdah went to the online site LowerMyBills.com seeking suggestions regarding house refinancing. This site informs users that if they click certain buttons, they are agreeing to its hyperlinked “Terms of Use.” They included a mandatory arbitration provision. LowerMyBills referred him to defendant-Rocket, who then began repeatedly contacting Dahdah, despite his listing his number on the Do Not Call registry and telling Rocket to stop. He sued under the TCPA. The district court ruled that there was no binding contract formed and denied Rocket’s motion to arbitrate. Applying California state law on contract formation, which employs an “objective test” regarding both “offers” and “acceptances,” the court held that the same laws apply online as in the “real world.” In this case, LowerMyBills proposed a “hybrid” offer under California law. To “qualify as a valid offer, the website’s proposal must give ‘reasonably conspicuous’ notice that a user will accept the terms by clicking a button, signing into an account, or taking a similar action. . . . And to qualify as a valid acceptance, the user must objectively show assent to the terms by (for example) taking the specified action.” Courts make the determination as to “conspicuousness” considering the totality of the circumstances. The court held that “LowerMyBills and Dahdah formed a binding arbitration agreement. LowerMyBills’ website told users that if they click specific buttons, they would ‘consent’ to its Terms of Use (including the arbitration provision).” The court found that, while it was a close question, “LowerMyBills website made a reasonably conspicuous offer” despite the use of a small font, and it informed “users that they would accept its Terms of Use if they ‘perform[ed]’ a ‘specified act’: ‘clicking’ the ‘Calculate’ and ‘Calculate your FREE results’ buttons.” And Dahdah did not dispute that he clicked them. This constituted “a valid acceptance.” Reversed and remanded.

Whether the Michigan Regulation & Taxation of Marijuana Act (MRTMA) implicitly repealed the keeping-or-maintaining-a-drug-house statute (MCL 333.7405(1)(d)); MCL 333.27955, 333.27954(i) & 333.27965(2); Ineffective assistance of counsel; Failure to request a jury instruction on the MRTMA & to move to suppress the search warrant; Futile objection

Holding that MCL 333.7405(1)(d) did “not conflict with the MRTMA in this case” and rejecting defendant’s ineffective assistance of counsel claims, the court affirmed. He was convicted of keeping or maintaining a drug house, second offense. He argued that the conviction was “invalid because the MRTMA implicitly repealed the keeping-or-maintaining-a-drug-house statute because the provisions cannot be read in harmony.” The court disagreed. It considered three sections of the MRTMA - MCL 333.27955 (section 5), 333.27954(i) (section 4), and 333.27965(2) (section 15). Defendant argued “that, because he violated section 5 by having more than 10, but less than 20, ounces of marijuana, section 15 provides the exclusive punishment for his actions to be a civil infraction. But defendant neglects the first part of section 15, which explains that the subsequent civil infraction punishments apply: ‘Except for a person who engaged in conduct described in section 4[.]’” Defendant here “was ‘engaged in conduct described in section 4’ because he had more than 2.5 ounces of marijuana in his home not ‘stored in a container or equipped with locks or other functioning security devices that restrict access to the contents of the container or area.’” The court noted that the marijuana was found in his “bedroom ‘laying on a pile of clothes[,]’ and defense counsel conceded that the drugs were not in a container. Accordingly, defendant’s possession of 15 ounces of marijuana did not fall within the protective scope of the MRTMA, meaning he was, indeed, ‘illegally keeping’ marijuana, a Schedule 1 controlled substance under MCL 333.7212(1)(c), in the home.” His claim that defense counsel was ineffective for failing to request a MRTMA jury instruction was based on his “contention that the MRTMA protected him from being charged with keeping or maintaining a drug house.” Thus, defense counsel was not ineffective for failing to make a futile request for such an instruction. The court also held that defense counsel was not ineffective for failing to make a futile motion to suppress where sufficient probable cause supported the search warrant.

Judicial bias; People v Stevens; Failure to preserve evidence

The court held that considering the Stevens factors and the record, defendant did not overcome the presumption of judicial impartiality. Also, she failed to establish that the investigating officer (M) acted in bad faith such that her due-process rights were denied. Finally, she did not “establish that any missing evidence was exculpatory or that it rendered the district court’s bindover determination an abuse of discretion.” She argued “that she was denied a fair trial because the trial judge verbally and nonverbally communicated bias in favor of the prosecution during defense counsel’s cross examination of” M. Considering the Stevens factors, the court concluded “that the trial court’s conduct, both verbal and nonverbal, did not pierce the veil of judicial impartiality.” The court noted that it was “unclear from the record whether the trial court judge rolled his eyes during defense counsel’s cross examination of [M] and that the record does not indicate whether the trial judge’s tone when characterizing defense counsel’s questioning as ‘confusing’ and ‘thanking’ defendant for noting his behavior was derogatory or sarcastic.” But the record did “reflect that defense counsel repeatedly accused [M] of destroying evidence and lying and that [M] became confused during counsel’s questioning.” The record also reflected “that defense counsel and the prosecutor engaged in contentious exchanges while [M] testified, that defense counsel accused the trial court of ‘just endorsing what [the prosecution] says,’ and that counsel challenged the court’s decision regarding the appropriateness of a question. The trial court ruled on objections and provided clarification when necessary and did not improperly inject itself into defense counsel’s questioning of” M. The record did “not indicate that the trial court spoke to defense counsel or defendant in a condescending or sarcastic way, and neither counsel nor defendant stated otherwise during trial.” As to the trial court’s alleged eye rolling, the trial court “denied doing so, but explained that if it did, it was because defense counsel’s questioning was confusing or it occurred during a contentious interaction between the advocates. Considering the limited conduct at issue in the four-day trial, we cannot conclude that the court’s conduct pierced the veil of judicial impartiality and denied defendant a fair and impartial trial. Further, the trial court provided” a curative instruction. Affirmed.

Elements of leaving the scene; MCL 257.617(2); People v Dumback; Admission of photographs; Unfair prejudice; MRE 403; People v Howard; Toxicology report; Rule of completeness; MRE 106; People v Clark; Lesser included offense instruction; MCL 257.617(1); People v Cornell; Prosecutorial error; People v Carines; Jury unanimity; People v Cooks; Ineffective assistance; People v Uphaus

The court held that the trial court did not abuse its discretion in admitting injury photographs, excluding the victim’s toxicology report, or denying a lesser-offense instruction, and it found no reversible prosecutorial error, unanimity error, or ineffective assistance of counsel. Defendant left a crash scene after his vehicle collided with a dirt bike. The jury convicted him of failing to stop at the scene of an accident causing serious impairment, with the record showing the victim suffered a traumatic brain injury, skull fracture, hematomas, and a prolonged coma. On appeal, the court held that the photographs were relevant to prove serious impairment and, although “gruesome,” were “not rendered inadmissible merely because it brings vividly to the jurors” the injuries. It rejected admission of the toxicology report under MRE 106 because the rule “has no bearing on the admissibility of the underlying evidence,” and fault or the victim’s recovery timeline was not an element the prosecutor had to prove. It also affirmed denial of a misdemeanor lesser-included instruction because defendant offered no evidence disputing serious injury and “fault” is not an element of MCL 257.617(2). The court next found no outcome-determinative prosecutorial error where the prosecutor began referencing a non-testifying officer, the trial court immediately stopped the argument and instructed the jury to disregard it, and jurors are presumed to follow instructions. It held no specific unanimity instruction was required because the statute provides alternative means, and “jury unanimity is not required with regard to the alternate theory.” Finally, it found counsel was not ineffective for declining to make futile motions and defendant did not show a reasonable probability of a different result. Affirmed.

Dismissal of charges with prejudice; Nolle prosequi; Costs

The court held that the trial court abused its discretion by dismissing the charges against defendant with prejudice and by imposing costs on the prosecution. Thus, it vacated the trial court’s order dismissing the case with prejudice and imposing costs on the prosecution, and remanded. On remand the court directed that the case be reassigned to a different judge, which will require the assignment of a visiting judge. Under the circumstances, the court found that “the trial court’s refusal to select the jury that day and continue the trial two days later to be unnecessarily unyielding. To summarize, the scheduling problem arose from understandable confusion based on the trial court’s instructions at the final pretrial conference in” another case before it. There was “no suggestion that the prosecution was attempting to delay or otherwise was unprepared for trial; her witnesses simply were not present because she had misunderstood the trial court’s instruction, which the trial court sent via a comment to a different assistant prosecutor in a different case.” There also was “no indication that the one- or two-day delay would have prejudiced the defendant; the trial court granted defendant two adjournments in the weeks before trial, and defense counsel assured the trial court that he was available for trial beginning either Tuesday or Thursday. Because the prosecution offered a reasonable explanation for the nolle prosequi, and there is no indication that the prosecution acted in a way that was unconstitutional, illegal, or ultra vires, the trial court abused its discretion by dismissing the charges against defendant with prejudice.” Further, the court found “no statutory authority for the imposition of costs in this matter.”

Divorce; Division of premarital equity in the home; Invading a party’s separate estate; MCL 552.401; Reeves v Reeves; Findings on the Sparks v Sparks factors; Waiver of an issue

Holding that the trial court did not clearly err in awarding plaintiff-ex-wife half the premarital equity in the parties’ home, the court affirmed the divorce judgment. Defendant-ex-husband did ‘not dispute the majority of the trial court’s findings on the Sparks factors[.]” He only objected to its “weighing of the ‘general principles of equity’ factor[,]” under which it “found that the home was the parties’ joint venture because they chose it together, moved in together, and shared its obligations equally.” Defendant emphasized “that the home was purchased with a mortgage solely in his name before the marriage with his down payment, and he characterizes the premarital relationship as that of a landlord and tenant. But the trial court concluded that the home was commingled with marital assets such that it became marital property. In doing so, [it] observed that the parties both contributed to the home’s acquisition, that they split bills evenly, that they made joint decisions about repairs and maintenance, and that they worked on the home together. In sum, [it] found that everything relating to the home was done together with the parties’ intent to treat the residence as a marital home from the inception of its purchase. Given” their testimony to this effect, the court found no clear error. It also found “no clear error in awarding premarital equity in the home to plaintiff given that she ‘contributed to the acquisition, improvement, or accumulation of the property.’” Defendant did not point to any “record evidence that he had a lease with plaintiff such that the relationship was merely that of a landlord and tenant. Nor was the trial court required to weigh [his] taking on the mortgage more heavily than, or to the exclusion of, other factors, especially when it was undisputed that the parties shared equally in the home payments and related costs and expenses. And to the extent that [it] credited plaintiff’s testimony over defendant’s” the court noted it defers to a trial court’s findings that are based on witness credibility. Finally, it held that equally “splitting the increase in value from the purchase date constitutes an equitable division of the marital asset.”

Mental-health treatment; Foreign language interpreter; MCR 1.111(B)

The court rejected respondent’s claim “that the probate court denied her right to a foreign language interpreter because it failed to determine whether she needed an interpreter.” She was subject to an identical mental-health proceeding in 9/23, “during which she made no request for an interpreter. Thus, she was familiar with the complexity of the mental-health proceedings before the hearing in this case.” On appeal, she conceded “that neither she nor her counsel indicated a need for an interpreter at any point. Accordingly, the probate court had discretion to examine respondent ‘to determine whether such services [were] necessary.’” But there was “no indication that the probate court had any reason to suspect such services were necessary. Respondent’s interactions with the probate court did not suggest that she lacked English proficiency. She testified and answered each question posed to her, clearly stated that she had never harmed anyone or herself, described her experiences with police, medical professionals, and the people who were allegedly stalking her and abusing her children, and stated her beliefs regarding the necessity of mental-health treatment—all in English.” Therefore, there was no evidence that she “was unable to meaningfully participate in the proceeding to the extent that the probate court should have appointed an interpreter.” Affirmed.

Motor vehicle exception to governmental immunity (MCL 691.1405); “Resulting from”; Robinson v Detroit; Gross negligence; MCL 691.1407(2) & (8)(a); “The proximate cause”; Ray v Swager; Civil conspiracy; Swain v Morse

The court held that the decedent’s (Jamerson) death did not “result from” defendant-police officer’s (Zaimi) operation of defendant-city’s police vehicle for purposes of the motor vehicle exception to governmental immunity. Further, Zaimi was entitled to summary disposition of the gross negligence claim because his “actions were not ‘the proximate cause’ of Jamerson’s death[.]” Finally, defendants were entitled to summary disposition on the civil conspiracy claim where no evidence of a conspiracy was presented. Thus, the court affirmed summary disposition for defendants on the civil conspiracy claim and for the city on the negligence claim but reversed the denial of summary disposition for Zaimi on the gross negligence claim and remanded for entry of summary disposition in his favor. The case arose from “a fatal car crash following a Detroit police pursuit of a vehicle” (a Saturn driven by defendant-Dixon) in which Jamerson was a passenger. As to the claim against the city, there was no dispute “that the police vehicle did not come into contact with the Saturn.” The court also concluded “the police vehicle did not ‘otherwise physically force it off the road or into another vehicle or object.’ . . . The occupants of both vehicles so testified.” In addition, the Saturn was struck by another vehicle or object – an SUV and a utility pole. “The police vehicle was still several car lengths from the intersection on Seven Mile when the collision occurred.” As to Zaimi, after viewing the dash camera footage, the court concluded “as a matter of law that Dixon’s reckless conduct was ‘the proximate cause’ of” Jamerson’s death. After he turned “onto Seven Mile Road, Dixon accelerated the Saturn and ran the red light, resulting in the collision with the SUV and the utility pole.” The court found that while “Zaimi’s conduct in pursuing the Saturn may properly be considered a proximate cause of Jamerson’s injuries, given the circumstances and the decision in Robinson, there is no genuine issue of material fact that Dixon’s conduct was the proximate cause of Jamerson’s death.”

Motor vehicle exception to governmental immunity (MCL 691.1405); “Resulting from”; Robinson v Detroit; Gross negligence; MCL 691.1407(2) & (8)(a); “The proximate cause”; Ray v Swager; Civil conspiracy; Swain v Morse

The court held that the decedent’s (Jamerson) death did not “result from” defendant-police officer’s (Zaimi) operation of defendant-city’s police vehicle for purposes of the motor vehicle exception to governmental immunity. Further, Zaimi was entitled to summary disposition of the gross negligence claim because his “actions were not ‘the proximate cause’ of Jamerson’s death[.]” Finally, defendants were entitled to summary disposition on the civil conspiracy claim where no evidence of a conspiracy was presented. Thus, the court affirmed summary disposition for defendants on the civil conspiracy claim and for the city on the negligence claim but reversed the denial of summary disposition for Zaimi on the gross negligence claim and remanded for entry of summary disposition in his favor. The case arose from “a fatal car crash following a Detroit police pursuit of a vehicle” (a Saturn driven by defendant-Dixon) in which Jamerson was a passenger. As to the claim against the city, there was no dispute “that the police vehicle did not come into contact with the Saturn.” The court also concluded “the police vehicle did not ‘otherwise physically force it off the road or into another vehicle or object.’ . . . The occupants of both vehicles so testified.” In addition, the Saturn was struck by another vehicle or object – an SUV and a utility pole. “The police vehicle was still several car lengths from the intersection on Seven Mile when the collision occurred.” As to Zaimi, after viewing the dash camera footage, the court concluded “as a matter of law that Dixon’s reckless conduct was ‘the proximate cause’ of” Jamerson’s death. After he turned “onto Seven Mile Road, Dixon accelerated the Saturn and ran the red light, resulting in the collision with the SUV and the utility pole.” The court found that while “Zaimi’s conduct in pursuing the Saturn may properly be considered a proximate cause of Jamerson’s injuries, given the circumstances and the decision in Robinson, there is no genuine issue of material fact that Dixon’s conduct was the proximate cause of Jamerson’s death.”

Premises liability; Causation; Circumstantial proof; Skinner v Square D Co; Speculation vs reasonable inference

Holding that plaintiff presented sufficient circumstantial evidence of causation to survive summary disposition, the court reversed the dismissal and the related costs award. Plaintiff alleged she fell in a parking lot due to a “defect” consisting of loose gravel, potholes, uneven concrete, and a significant grade change. The trial court granted summary disposition on the ground her testimony varied as to whether she fell on loose pavement, loose gravel, or cracked pavement. On appeal, the court held the trial court misapplied the rule that circumstantial proof must support “‘reasonable inferences of causation, not mere speculation.’” It explained that a “conjecture” remains where the evidence has no “‘selective application’” to one explanation, but that a claim may proceed when “‘there is evidence which points to any 1 theory of causation, indicating a logical sequence of cause and effect.’” The court found plaintiff consistently identified “a specific, degraded area of the parking lot,” and supported that account with a photograph taken the next day showing “uneven pavement, loose gravel, and other similar forms of debris,” and deposition testimony pinpointing the same area on an aerial image. Because that evidence “points to ‘1 theory of causation,’” reversal was required. Remanded.

Mental-health treatment; Foreign language interpreter; MCR 1.111(B)

The court rejected respondent’s claim “that the probate court denied her right to a foreign language interpreter because it failed to determine whether she needed an interpreter.” She was subject to an identical mental-health proceeding in 9/23, “during which she made no request for an interpreter. Thus, she was familiar with the complexity of the mental-health proceedings before the hearing in this case.” On appeal, she conceded “that neither she nor her counsel indicated a need for an interpreter at any point. Accordingly, the probate court had discretion to examine respondent ‘to determine whether such services [were] necessary.’” But there was “no indication that the probate court had any reason to suspect such services were necessary. Respondent’s interactions with the probate court did not suggest that she lacked English proficiency. She testified and answered each question posed to her, clearly stated that she had never harmed anyone or herself, described her experiences with police, medical professionals, and the people who were allegedly stalking her and abusing her children, and stated her beliefs regarding the necessity of mental-health treatment—all in English.” Therefore, there was no evidence that she “was unable to meaningfully participate in the proceeding to the extent that the probate court should have appointed an interpreter.” Affirmed.

Failure to warn; MCL 600.2948(3); Post-sale reasonable care; MCL 600.2948(4); Nonmanufacturer seller liability; MCL 600.2947(6)(a)

The court held that summary disposition was improper because MCL 600.2948(3) did not bar plaintiff’s theory and the record revealed a genuine issue of material fact on whether defendant exercised reasonable care to warn after receiving prior fork-damage complaints. Plaintiff alleged he crashed when his e-bike’s front forks buckled over a speed bump, and he sued the importing seller for breach of implied warranty and negligence based on an alleged failure to warn after prior customers reported fork damage upon delivery. The trial court granted summary disposition, reasoning plaintiff failed to show the Chinese manufacturer knew or should have known of the risk under MCL 600.2948(3) and that the prior complaints suggested shipping damage rather than a defect. On appeal, the court held the trial court misapplied MCL 600.2948(3) because plaintiff’s allegations targeted defendant’s conduct “after the product had left” the seller’s control, and MCL 600.2948(4) expressly provides that the section “does not limit a manufacturer’s or seller’s duty to use reasonable care” after the product leaves its control. It further held that the trial court’s own conclusion that it was “equally reasonable” to infer shipping damage or a faulty fork showed “reasonable minds might differ,” which is the definition of a genuine issue of material fact, making summary disposition inappropriate. Reversed and remanded.

Children’s best interests; In re White; Relative placement factor; In re Olive/Metts; In re Atchley; Parent-child bond; Substance abuse

The court held that termination of respondent-mother’s parental rights served the children’s best interests notwithstanding placement with the father. The children were removed because of improper supervision, neglect, and the mother’s severe substance-abuse issues. She attempted inpatient rehabilitation multiple times but did not successfully complete any program. At the termination hearing, the children were living with the father, who was participating in his service plan, but the trial court terminated the mother’s parental rights. On appeal, the court reiterated that “[t]he focus at the best-interest stage has always been on the child, not the parent,” and that while relative placement weighs against termination, it “is not dispositive.” It held that the trial court properly found termination was in the children’s best interests because the bond with the mother was “unhealthy,” the children struggled with the impact of her substance use, and her instability harmed them even if the father could provide day-to-day permanency. The record showed she “sporadically appeared” for visits, often tried to reschedule at the last minute, and had not seen the children for nearly nine months. Further, her substance abuse impaired her ability “‘to be present and participate,’” while she failed to complete services and address ongoing mental-health and substance-abuse barriers. It concluded the trial court did not err in finding that the trauma and instability attributable to the mother made termination in the children’s best interests. Affirmed.