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Holding that the jury's decision to award the plaintiff no noneconomic damages was grossly inadequate and against the great weight of the evidence, the court reversed the trial court's order denying her noneconomic damages and remanded for a new tria

Plaintiff was seriously injured when she and the defendant collided while skiing. The jury declined to award either economic or noneconomic damages, even though it found defendant 50% negligent. The trial court found that the verdict as to economic damages was against the great weight of the evidence, accepting the parties' stipulation as to the $28,879.93 amount of plaintiff's out-of-pocket medical expenses arising from the incident. However, it found that the jury's decision to award no noneconomic damages was not against the great weight of the evidence. On appeal, the court rejected plaintiff's argument that the inadequate amount of noneconomic damages was evidence that the jury was influenced by passion or prejudice, noting she presented no evidence in this regard. However, it agreed with her that the case should be remanded for a new trial because the jury's decision to award no noneconomic damages was grossly inadequate and against the great weight of the evidence. It noted that the "uncontroverted evidence was that plaintiff sustained severe injuries as a result of the collision." It acknowledged that it is "entirely reasonable that a jury could find that plaintiff's testimony as to her mortification and embarrassment from the physical manifestations of her injury were inflated." It found it "inconceivable however, that plaintiff did not suffer excruciating pain from the time of injury until she was anesthetized, as well as during the recuperation process." The jury "had no evidentiary basis to refute that the impairment of plaintiff's jaw and eye, both of which were supported by a physician's testimony, were not proximally caused by the accident." Nor was there any evidence that she "was not denied social pleasures and enjoyments during her hospitalization and physician mandated convalescent period. To the extent that the special verdict form did not inquire as to whether plaintiff suffered physical impairments, the verdict, if it is interpreted as a denial that those injuries occurred or were proximally related to the accident, was against the great weight of the evidence." Further, it was "grossly inadequate to award nothing for either the impairments of the body or the physician mandated convalescence and hospitalization period." 

FAMILY LAW 88: The trial court found that the children did not have an established custodial environment with defendant because, before the separation, he did not have a large role in the children’s lives.

The trial court credited plaintiff’s testimony that, before the parties’ separation, defendant spent minimal time helping to care for the children, so its finding that the children would not have looked to defendant for guidance, discipline, the necessities of life, and parental comfort during that time was not against the great weight of the evidence.

REAL ESTATE 89: RM had not included any language in the deed providing that the property was a joint tenancy with full rights of survivorship, the property instead became a tenancy in common.

RM drafted the deed without seeking counsel and mistakenly believed that, if either she or FK died, the property would fully pass to the surviving tenant. FK’s will provided that if his wife predeceased him—which she did—the personal representative of his estate should sell any residual property that he owned and divide the cash proceeds equally among his surviving children.

FAMILY LAW 83: A trial court can terminate a parent’s rights and permit a stepparent to adopt a child.

A trial court has discretion to terminate a parent’s rights and permit a stepparent to adopt a child when the conditions of MCL 710.51(6) are met. MCL 710.51(6)(b) requires the petitioner to establish that the other parent had the ability to visit, contact, or communicate with the children, and substantially failed or neglected to do so for a period of two years.

PROBATE 53: The trust agreement included an Incontestability Provision.

A settlor’s intent is to be carried out as nearly as possible. Generally, in terrorem clauses are valid and enforceable. However, a provision in a trust that purports to penalize an interested person for contesting the trust or instituting another proceeding relating to the trust shall not be given effect if probable cause exists for instituting a proceeding contesting the trust or another proceeding relating to the trust.

FAMILY LAW 82: Court stated it would terminate the personal protection order (PPO) after the parties present documentation of the initiation of the divorce proceedings.

However, the trial court concluded that these matters should, in fact, be in the province and the jurisdiction of the Family Division and in that respect, having issued a personal protection order, the Court stated it would terminate the personal protection order after the parties present documentation of the initiation of the divorce proceedings.

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