Thank you for visiting my blog. I am Carson J. Tucker, an appellate and insurance law attorney. I use this blog to communicate with my clients and colleagues about important court opinions and legal news. More about my practice can be found on my LinkedIn page, Carson J. Tucker on LinkedIn. I intend this blog to generally cover issues of appellate law, with some more targeted and detailed analysis of cases that are important to my clients. There is no legal advice intended or imparted by this blog.
The Supreme Court has docketed Petition No. 16-538 in the Case of Wayne County, et al. v. Linda Richko, Personal Representative of the Estate of Jeffrey Horvath. supreme-court-case-no-16-538
Supreme Court of the United States Cert. Petition Filed on Issue of Municipal Liability Under 42 U.S.C. section 1983 and the Fourteenth Amendment
Today I filed a petition in the United States Supreme Court seeking to clarify a fundamental question left open regarding municipal liability under 42 U.S.C. section 1983. wayne-county-et-al-petition-for-writ-of-certiorari
Michigan Supreme Court Rules Parallel Parking Areas are Not Jurisdictional “Highways” Under Governmental Immunity Tort Liability Act
Last week, the Michigan Supreme Court issued its opinion in a “highway exception” case (Yono v. MDOT) that originally went to the Court on oral argument on the original application, then, after remand to the Court of Appeals returned to the … Continue reading
I came across this story and great website about the 458th Bombardment Group flying bombing missions out of Horsham Air Base in St. Faith Norwich England during WWII. I had heard stories, but thanks to this gentleman whose father was … Continue reading
A couple of weeks ago, I filed a petition in the U.S. Supreme Court. One of many cases in the pipeline challenging banks and other financial institutions failures to follow basic real property law in the United States and legitimize … Continue reading
Appellate Court Explains Governmental Entity Responsibility for Compensation for Property Condemnation
In Welgosh v. City of Novi, et al.03.19.2015.unpub, the Michigan Court of Appeals provides a good explanation and outline of when a governmental entity (and individual governmental employees) might be liable to a property owner for condemnation through encroachments or other indirect actions that lead to property encroachment or other invasion of property rights.
Here, the alleged event that led to claims against the city was basement flooding. The property owners sued the builders and the city inspectors, including the city itself, when it was discovered that the foundation of their home was built below the recommended level to prevent water seepage and flooding.
The property owners alleged inverse condemnation against the city, and gross negligence against the city inspectors who allegedly approved the building project despite the deficiencies. The property owners sought compensation from the government for alleged “taking” of their property.
As the Court explains, the only way compensation can be awarded against the government for an invasion (or indirect (inverse) condemnation) of property rights is if the government action at issue was directly intended to cause the said invasion. The Court provides this rationale in explaining a previous case in which a roadbed ditching and culvert project led to runoff waters spilling over onto the property owner’s land. The spillage was incidental and no act on the part of the government or its individual employees was purposefully designed to have actually caused the diversion of water to be transferred to the property owner’s land.
The second aspect of this particular case that is of interest to anyone practicing in the area of municipal liability law in Michigan is the Court’s citation to the principle that in order to hold an individual governmental employee “grossly negligent” in avoidance of governmental immunity under Michigan’s governmental tort liability act, is to prove that the actor’s conduct was the, not just a, proximate cause of the injury complained of. Here, the proximate cause of the property owner’s damages was the building company’s construction of the foundation in an unsuitable area.
Finally, the Court cites to the decision I secured in the Michigan Supreme Court Odom v. Wayne County, explaining the “intentional tort” exception and the “good faith” test implicated in that decision was not properly before the court because the property owners failed to adequately allege the intentional tort.