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The Michigan Consumer Protection Act (MCPA), is a statutory cause of action for conduct constituting unfair, unconscionable, or deceptive trade practices. MCL 445.901, et seq.   Under the MCPA, a deceptive trade practice is defined to include “(c) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have or that a person has sponsorship, approval, status, affiliation, or connection that he or she does not have.”  The MCPA remedies available to the deceived consumer include the recovery of “actual damages” sustained by the person or representative of the class of persons deceived.  MCL 445.911.

Investigations of Volkswagen have revealed that that the manufacturer installed a device that deliberately falsifies emissions tests.  When not activated, the diesel vehicles reportedly emit as much as 40 times more than the United States Clean Air Act allowed level of nitrogen oxides.  The VW models sold in the U.S. that have been found to be implicated include VW Jetta, Beetle and Golf from 2009 through 2015, the Passat from 2014-2015 as well as the Audi A3, model years 2009-2015.

Actual damages sustained by consumers include, but are not limited to, having over-paid for a diesel engine that is less efficient than represented.  Add to that, the anticipated reduced re-sale or trade-in value of the vehicle.  How quickly and in what manner VW responds to these developing consumer complaints will be VW’s biggest test.  VW has created a website allowing consumers to input the Vehicle Identification Number to determine whether a recall has been ordered for the subject vehicle.  The VW website was last updated on Monday, September 28, 2015.

Authored by L. Page Graves

With the growth and development progressing from Acme, east toward Kalkaska, the MDOT has elected to redesign M-72 to include roundabouts.  While MDOT proclaims roundabouts will decrease accidents and improve safety, a closer reading of its own exhaustive study reveals that the facts are not necessarily conclusive.  In fact, to quote directly from its study, MDOT cautions readers to keep in “mind that these results do not account for regression-to-the-mean, traffic volumes or the decreasing time trend in crashes in Michigan so these results should not be used to make conclusions about the effectiveness of roundabouts in Michigan.”  Further, lack of lane discipline, speeding and unfamiliarity with location were all contributing factors that resulted in roundabout crashes.   Needless to say, the jury is still out on whether roundabouts improve the safety of the general public.  At its core, however, — as always — is driver behavior which is paramount for the safety of us all.

Authored by L. Page Graves

 

It is striking to both see first-hand and then also hear a witness defensively testify that he was “driving the posted speed limit”, albeit in poor weather conditions, poor light (e.g., nighttime driving) or even around a curve on a road.  The basic speed law is one that governs speed for the conditions present; the posted speed limit is only for optimum conditions (the driving environment).  Driving for conditions allows a motorist to maintain absolute control.  Failure to drive for conditions can lead to tragic consequences.  It is a simple rule that saves lives.

Authored by L. Page Graves

The posted speed limit applies to perfect driving conditions (e.g., lighting, weather and traffic flow).  It is the maximum speed allowed in that perfect driving context.  When less than optimum conditions are present (e.g., reduced light/vision, wet roads or congested traffic), the basic speed law requires that you reduce your speed so that you can safely stop your vehicle within the assured clear distance ahead of whatever is in front of you (e.g., a car, a pedestrian, etc.).  Regrettably, some drivers ignore this basic rule of the road and drive the posted speed limit (if not exceed it) in poor driving conditions.  Raise your hand if you have been driving in a snow squall and semi-truck has blown past you in the passing lane, kicking up more snow and making driving even more dangerous.  Driving too fast for conditions can lead to dangerous crashes.  Maintain the appropriate speed for conditions present.  It is the law.

 

Authored by L. Page Graves

Since last week’s major storm up in Northern Michigan, tree clean-up is the task at hand for a great many of residents.  Obviously, caution is paramount when operating a chainsaw.  Kickback is the most common and seriously harmful consequence of either inexperienced or careless operation.   Understanding the correct way to operate a chainsaw and avoid kickbacks is relatively straightforward.  If resources permit, it is advisable to hire expert tree service companies to clear fallen trees and debris; there are multiple reputable and local tree service companies here in Northern Michigan permitting you to “keep it local” too.

 

Authored by L. Page Graves

Needless to say, the recent news about the operation of motor vehicles being  (or capable of) hacked by outside sources is deeply disturbing.  Fiat-Chrysler just announced its recall of 1.4 Million vehicles after reported hacking disrupted the driving of at least one reported occurrence.  Jeep owners are strongly urged to take their vehicles to a certified dealer to update the hardware system to (hopefully) immunize or prevent this vulnerability.  The fact that an outside source can disrupt driving raises questions about the owner’s use of the vehicle.  Is it negligent to operate a car knowing that it is vulnerable to hacking which may lead to the cause of a crash?  Surely, an argument could be made that if the owner does not get the vehicle updated, as recalled, then that driver clearly is not acting with ordinary care by taking the risk of hacking out on the road.  It seems highly probable that a new era of negligence law and product liability law will be developed in the next decade as we evolve into high-tech motor vehicle operation (e.g., driverless vehicles).

Authored by L. Page Graves

 

So you and your pals have driven to northern Michigan to play a round of golf at one of its many, beautiful golf courses. You get to the starter shack at the first tee box and the person takes down your assigned golf cart number and then presents to you a “Golf Cart Agreement”. You likely are told it is required that you sign the agreement before you can tee off. Chatter about the course and where the pins are located that day coupled with cart-path-only rules, follow as the signature sheet is placed in front of you to sign. You are consumed with the moment and beauty of the anticipated round; you could care less about the golf cart agreement because you know you will be a responsible person and nothing dramatic will happen. You tee one down the middle of hole number one and off you go. Unbeknownst to you, however, the grounds keeping crew forgot to put a sprinkler drain head-cover back on an irrigation system being worked on that morning. Tall grass grows around the large uncovered hole by the green. You make your put and walk off heading to your golf cart and…..down goes your foot and leg. You hyper-extend your knee and tear your ACL. Golf season is now over. And then the really bad news is revealed: that so-called “Golf Cart Agreement” was less about the golf cart and your responsibility for any damage you may cause to it and more about your having just completely released the golf course of any liability, whatsoever, for its negligence which caused your torn ACL. The dirt literally is in the details. Read any such form that is shoved into your hands while you are pulling out the driver on hole number one. You likely will sign it anyway because you want to play; but just be informed of what it is that you are signing and giving up in the process. For those of you who did not have to sign a “Golf Cart Agreement” or its equivalent and were injured because of the negligence of a golf course or its employees, please contact Smith & Johnson, Attorneys, P.C., for your free consultation about your legal rights.

Authored by L. Page Graves

It is that time of the summer season up here in northern Michigan where festivals are in full swing. With that come corporate sponsors and vendors setting up their promotional tents for the designed purpose to engage potential customers. Vendor tents can be rather large and constructed of heavy metal. And when placed in open spaces (e.g., near the shore of a lake), wind becomes a foreseeable environmental factor that creates risk of the tent blowing over and hurting people. Minimum standards are required for anchoring vendor tents. Unfortunately, corners are cut or time is rushed to get to the festival and the vendor tent raised for business; the consequence of those negligent choices, however, is that the gathering public is put at risk of serious injury. People who have been injured because of the negligence of festival vendors are welcome to contact Smith & Johnson, Attorneys, P.C., for a free consultation to learn more about their legal rights.

Authored by L. Page Graves

It is that joyous, patriotic celebratory time of the summer when we gather together and watch municipal firework shows. The calendar of fireworks shows is considerable when you consider they will take place in so many of our beautiful communities here in northern Michigan. But it is always helpful to remind ourselves of the inherent danger these fireworks shows do present. The best place to watch a fireworks show is at a distance the furthest possible so that you are located away from (a) the launch platform; and away from (b) the debris field. Incidents injuring spectators has happened (e.g., 1997 Charlevoix) and continues to occur each year. If the unfortunate occasion of fireworks show injury does occur, people are welcomed to contact Smith & Johnson, Attorneys, for a free consultation to learn more about their legal rights.

Authored by L. Page Graves

Up here in northern Michigan, we are blessed with so many trails, walkways and places to walk, hike, bike or recreate. And to many, dogs are equally part of that cherished family activity. For everyone’s benefit and safety using the trail, sidewalk, walkway or venue, dogs are required to be leashed at all times. Keeping dogs on a leash not only safely protects others from unwanted or unexpected contact, but it also serves to keep the family pet safe, too. Summertime brings increased motorized traffic to our region which, statistically, adds to the probability of a dog being hit by a car, when not on a leash. For more information about Michigan’s leash law or about dog bite liability, generally, please contact Smith & Johnson, for a free consultation.

Authored by L. Page Graves