Suing/getting sued for trespassing

Personal injury – (248) 588-3333 – Intentional injuries – Trespass

.

.

What is trespass?

A nonconsensual physical invasion of the plaintiff’s land or the interference with their personal property. The defendant must be aware that they are trespassing. If both of these things are proven, then the plaintiff can sue for any damages that result from the trespass.

Can you trespass without physically entering onto the land?

Yes, you can. The “invasion” involved in trespass can also take the form of flooding or out of control fires. If the entity invading the land is non-physical, such as loud noises or concussive explosions, then it is typically treated as a nuisance rather than a trespass.

Does trespass only apply to ground level/surface land?

 No, trespass can also include invasions from underground (tunneling) or above the land as well.

Can you accidentally trespass on land?

Yes, you can. Knowledge that you are trespassing is not a requirement to be sued for trespass. The only requirement is that you voluntarily and intentionally entered the land in question, even if you didn’t know.

Is an uninvited entry onto land always a trespass?

No, sometimes a person has a legal privilege to be present on the land without the landowner’s consent.

Legal privileges include:

  • Necessity: entry onto the property is reasonably necessary to avoid damage or injury resulting from a natural or artificial source. The injury/damage being avoided must be greater than the harm that will be caused by trespassing on another’s land. Necessity can either be public (for the benefit of the public) or private (for the benefit of a small number of people). If the necessity is private, then the intruder must pay for any damage caused (although they will be otherwise protected from other liability).
  • Recapture of Chattels (personal property): If someone else’s personal property accidentally or wrongfully ends up on your property, they are legally allowed to go onto your property to retrieve it (like the baseball in Sandlot). However, the owner of the “chattel” must give notice to the property owner and make a request for the return of the item(s) in question. If the landowner refuses to return it, then you may enter. If the landowner did not wrongfully place the item(s) on their land, then the one entering to retrieve the item(s) is liable for any damage caused to the land. If it is your fault that the item(s) are on the other person’s land, then you have no privilege to enter and must resort to legal process to get your property back.
  • Privilege of arrest: A police officer or a private citizen may enter another person’s property without a warrant in order to arrest someone on that property. The officer can still be sued for any misconduct on the property or against the person being arrested. If a citizen makes a felony arrest, then they can be held liable if the arrested person did not actually commit a felony.

Of these privileges to enter land, each of them is also a defense against a personal injury lawsuit.

Can you be sued for trespass even if you don’t cause any actual damage?

Yes. Unlike negligence lawsuits, damages for intentional injuries are assumed if the act in question is proven. The absence of any actual damage will minimize whatever you are ultimately required to pay, but you will still be liable for trespass.

Can I use force against a trespasser?

Yes, if you do it properly. You may use a reasonable amount of force to prevent someone from causing damage (or trespassing) on your property. However, you are required to give a verbal warning to cease and desist unless it would be pointless or dangerous to do so. Furthermore, once the damage has already been inflicted, you cannot attack the intruder/vandal after the fact. If the intruder has stolen personal property, then the trespass is still ongoing while you are in hot pursuit, and you will have a defense in court for all properly conducted uses of force.

You may not use force if the so called “trespasser” has a legal privilege to be on your land (see list of legal privileges above).

.

.

Click link to schedule a free case evaluation:

https://app.acuityscheduling.com/schedule.php?owner=17105687&appointmentType=13607154

For more information visit our website: https://www.akivagoldman.com/
You can give us a call for a FREE phone consultation at (248) 588-3333

For additional information please click here: https://www.akivagoldman.com/michigan-personal-injury-attorney/

#MichiganAttorneys #MichiganInjuryLawyers #BoatingAccident #PersonalInjuryLawyer #GoldmanAndAssociates #OaklandCounty #WayneCounty #MacombCounty #PersonalInjury

Suing/getting sued for personal injury

Personal injury – (248) 588-3333 – The basics of personal injury lawsuits

.

.

When someone sues someone else, it is usually on the basis of a personal injury. What this means is that someone has accidentally or purposefully suffered damage to their body, property, rights, or emotions. The person who is harmed (the plaintiff) can then go to civil court to seek compensation from the one allegedly responsible (the defendant) for this loss or damage. They can only get compensation if they are entitled on the basis of state or federal civil tort law. Typically, this means that the responsible party was at fault, or there was some other circumstance which the government has decided ought to be the basis for compensation.

Basic Concepts

 Cases and lawsuits involving personal injuries and accidents are typically referred to as “torts” by lawyers and courts. This is a distinct body of law that has its own unique terms and concepts that are important to know.

Can you only be sued for injuries/damage caused on purpose?

No, you can also sue someone for damage or injuries caused unintentionally. While some causes of action, like “assault” and “battery” are intentional, others can be the result of “negligence” or “recklessness”. The person being sued just needs to have met certain requirements such as mental state.

What does “negligence” mean?

Negligence can best be understood as carelessness that results in a harm for which someone can be sued. More specifically, it means careless behavior that does not comply with the standard of care expected of a reasonable person. Negligence will be discussed in greater detail in the dedicated blog post on that subject.

Negligence is the most common legal standard for determining liability for personal injuries. In short, it is defined as a specific form of careless behavior that causes injury to another person.

What is the specific standard for negligence?

 In order to win a negligence lawsuit, the plaintiff must prove each of the following:

  • That the defendant had a “duty of care” towards the plaintiff during the incident. That duty of care obligates the defendant to behave as a reasonable person under similar circumstances would act (or some other applicable standard).
  • That the defendant breached that duty of care
  • That the breach of duty caused the alleged harm to the plaintiff
  • That the plaintiff suffered actual harm or injury.

How do you determine when someone has a duty of care towards another?

A defendant owes a duty of care to all foreseeable plaintiffs. In other words you owe a duty of care to anyone that you would reasonably perceive to be at risk as a result of your actions.

What are some examples of people with a duty of care?

He are some examples of situations where someone owes or is owed a duty of care:

  • If you cause an accident where rescuers are involved, then your duty of care extends to those rescuers (i.e. they are foreseeable plaintiffs). This also includes situations where you yourself are in need of rescue. Firefighters and police officers are generally barred from filing a lawsuit against a rescue under the “firefighters rule”.
  • If a particular economic transaction was intended or foreseen to benefit a third party (such as a will or a trust), then that third party is owed a duty of care by the participants in that transaction.

Duty of care typically exists where there is a special relationship (such as parent and child). It also exists between business owners and their patrons/customers. It also exists, to varying degrees, between property owners and guests on their property.

In certain circumstances you can owe a duty of care to someone you rescue, especially if you were the one to put them in danger in the first place.

How does the court define “reasonable person”?

The “reasonable person” is a fictional person whose behavior is measured against the behavior of a defendant in a lawsuit. The reasonable person does not have a race, an age, a gender, or any mental handicaps. These factors are not considered at all when determining the reasonableness of a person’s actions. However, it will take into account physical disabilities such as blindness or paralysis.

Children are subjected to a slightly modified standard of reasonable care that takes into account age and relative life experience. The exception to this is when the child engages in an adult activity, in which case the same standard as adults applies.

Is “the reasonable person” the only standard used to determine the duty of care?

No, it is not. In addition to the lenient standard we use for children, we also expect individuals with superior or exceptional knowledge and experience to exercise that advantage and thus they are held to a higher standard. Examples of this include:

  • Certain professionals: An occupation with certain skills, such as doctors, would be held to a higher standard in situations involving medical care. This heightened duty comes with an obligation for doctors to disclose the risks of any treatment and to obtain a patient’s informed consent.
  • Common carriers and innkeepers: entities who provide a very public service to a large number of people have a very high standard of care towards their guests. They are liable for even slight negligence.
  • Bailment situations: A bailment relationship occurs when you entrust your personal property to the temporary possession of another person. An example of this would be leaving your car at an auto repair shop. The auto repair shop becomes the “bailee” while the owner is the “bailor”. The standard of care expected of a bailee depends on the nature of the bailment. There are generally three kinds of bailment relationships.
  • Bailments that are for the sole benefit of the bailee, such as letting someone borrow something from you. This imposes a very high standard of care.
  • Bailments for the sole benefit of the bailor (like free valet services) impose a rather small duty of care where the bailee is only liable for gross negligence.
  • Bailments for mutual benefit (standard auto repair shop) impose a standard duty of care (reasonable person).
  • Public safety laws: If there is a law in place designed to protect members of the public from certain dangers (such as traffic laws), then everyone in that jurisdiction owes a duty of care to everyone that the particular law was meant to protect.
  • Home owners and their guests: When you have someone on your property, that typically creates a duty of care. What that duty consists of varies greatly depending on the circumstance. The law regarding liability for guests is actually quite complex. As such it has its own dedicated chapter in this guide.
  • Attorneys: The standard of care for attorneys is their adherence to the standards of professional conduct.

How does the court determine that a duty of care has been breached?

Usually this question is left to the judge or jury’s discretion. They will have to decide if the defendant acted as prudently as a reasonable person under the same circumstances would have. There are some common examples and principals that these decision makers will use determine if breach has occurred.

  • Custom: If there are certain customs in society or a particular industry, than a court might consider that any actions complying with that custom do not breach the standard of care. However, a judge or jury can still decide that the custom is unreasonable and negligent.
  • Violation of a public safety statute: We all owe a duty of care in the context of public safety laws. If there is a public safety law (like a traffic law), then all people driving cars owe a duty of care to anyone that law is meant to protect. A violation of such a law that results in injury is a pretty clear cut “breach” of the duty to care. This principle is known among lawyers as “negligence per se”.
  • Res Ipsa Loquitur: This is a legal term of art used to describe situations where it is difficult to determine precisely what negligent action or person may have caused the accident. The factors used to prove a breach of duty in such a situation are:
  • An accident of the sort that doesn’t usually happen unless someone has been negligent.
  • If there was any negligence, it was likely on the part of the defendant. This is usually shown by the fact that whatever object or element that caused the injury was in the exclusive possession or control of the defendant.

Making a case for Res Ipsa Loquitur does not guarantee that the judge or jury will find the defendant to be liable. It only means that the plaintiff has satisfied their burden of proving a duty of care and a plausible breach of that duty.

Do you ever have a duty to take action? Or is it just a duty to avoid negligent behavior?

Usually, there is no affirmative duty to act. However, there are some exceptions. You have a duty to take action in the following scenarios:

  • Once you start giving aid to someone, you are required to follow through and do so with reasonable care. The Michigan Good Samaritan law create an exception to this rule for doctors and nurses. Under that law, medical practitioners are immune from liability for negligence if they had a good faith belief that there was a life threatening emergency. This immunity is revoked if the practitioner was grossly negligent, which is medical malpractice.
  • If you were the one to put the plaintiff in peril, you have the duty to help them.
  • If there is a special relationship (parent-child, innkeeper-guest, etc.) then the duty of reasonable care may require them to aid the other person.
  • If have the ability and authority to control the actions of a third party, you may be obligated to prevent that third party from injuring another person.
  • Merchants generally have no duty to protect their customers from the crimes of third-parties. They are only required to take steps to expedite the involvement of police. However, if there is continuous criminal activity at the business which creates a nuisance, then the property owner is liable for any criminal attacks on their customers.
  • If a mental health professional overhears a patient threaten violence against someone, and appears willing and able to make good on that threat, then they must either warn the police (and the person being threatened), or hospitalize the patient making the threat.

Can children be sued for the personal injuries they cause?

 Yes Depending on the circumstances. A Michigan court will not allow a lawsuit against a child younger than seven. In any case you are likely going to be suing the parents rather than the child themselves for their malicious or negligent behavior. Furthermore, the courts do not impose the same standard of care on a minor as they would an adult. That will also be discussed in more detail in the negligence chapter of this guide.

.

.

Click link to schedule a free case evaluation:

https://app.acuityscheduling.com/schedule.php?owner=17105687&appointmentType=13607154

For more information visit our website: https://www.akivagoldman.com/
You can give us a call for a FREE phone consultation at (248) 588-3333

For additional information please click here: https://www.akivagoldman.com/michigan-personal-injury-attorney/

#MichiganAttorneys #MichiganInjuryLawyers #BoatingAccident #PersonalInjuryLawyer #GoldmanAndAssociates #OaklandCounty #WayneCounty #MacombCounty #PersonalInjury

Lawsuits for Assault and Battery

Personal injury – (248) 588-3333 – Intentional injuries – Assault and Battery

.

.

In the context of lawsuits for personal injuries, Assault and battery are referred to as causes of action for intentional injuries.

Intentional injuries

A distinctive category of causes of action. As opposed to something like negligence, injuries that were not caused intentionally, but rather due to someone’s carelessness.

When can someone be liable for intentionally inflicting injuries on another person?

In order to be liable for intentionally inflicted injuries, three requirements must be met. First, the act itself must have been a voluntary movement (no reflexive actions). Second, that person must have had the proper intent or mental state. Typically, intentional injury cases require that the defendant either intended to cause the harm or was almost certain that injury would result from their actions. The third requirement is that the act of the defendant must be the primary cause of the injury being sued for. Even there were other causes involved, as long as the actions of the defendant where the most important contribution, they can be held liable for the injuries inflicted.

What if someone intended to injure one person, but ended up injuring a different person, could the third person sue for intentional injury?

Michigan (like most states), observes the doctrine of transferred intent. That means that when the defendant has the right mental state for an intentional tort, but causes an injury to someone other than their intended target, they can still be held liable as if they had injured their intended target.

This prevents the assailant from escaping punishment and ensures that the victim can still be compensated. Furthermore, it makes moral sense to do this given that the injury would not have occurred were it not for the violent actions of the initial assailant.

What is assault?

Assault is any act which would cause a reasonable person to believe that you are about to cause harm or other offensive contact with their person. Exaggerated fears or the belief that harm might come in the far future is not enough. It must be imminent and it must be reasonable.

Mean words alone are not assault. However, a conditional threat, like “your wallet or your life” might count as assault. It does not matter if the defendant is not actually capable of carrying out the threat, as long as the victim reasonably believes they are capable. The defendant must have intended to put the victim in “apprehension” of harm in order to be liable for assault.

What is battery?

Battery is an intentional act which creates harmful or offensive contact with another person. “Harmful” means anything which causes pain, injury or disfigurement. However, “offensive” could be as tame as spitting someone and it would still qualify as battery. Just as long as a reasonable person would consider it offensive.

Defenses to Intentional Injury Lawsuits

What if the injured person consented to the act which injured them?

So long as it was obtained voluntarily (no threats or fraud), then consent is a defense for most intentional injury lawsuits. The defense is only valid if you stay within the bounds of that consent. Most states do not allow consent to criminal acts. Consent can also take the form of “implied consent”, where a reasonable person would believe they have consent based on social custom or common practice between the two individuals. Consent is also implied if you are acting to save someone’s life.

What if I injured the other person in self-defense, or to defend someone else?

If done properly, the defense of self and others is a defense to what would otherwise be lawsuit worthy injuries. Self-defense is not a valid justification if you were the first aggressor (i.e. you started it). Defense of others is justified if the person being protected would have been justified in exercising self-defense on their own behalf.

Unless the assailant is using deadly force, your act of defense must also be non-lethal. However, the right of lethal self-defense is tied into Michigan’s Stand your ground law. That means that your claim must be able to stand up in a criminal homicide trial in order to succeed in a civil lawsuit. In order to comply with the Michigan SYG law, the following requirements must be met:

  • The defendant exercising self-defense must not have been engaged in a crime
  • The defendant must have been in a location where they were legally allowed to be
  • The defendant reasonably believed that their use of force was necessary to prevent imminent death, bodily harm, or sexual assault.

If these requirements are not met, then you have a duty to retreat if you are reasonably able to do so. If not, then you are permitted to use lethal force.

What if the other person wasn’t actually attacking me, I just mistakenly thought that they were?

In that scenario, your act of   “self-defense” or “defense of another” is still valid as long as you reasonably believed that the person you injured actually was attacking someone.

Can I also justify injuring someone to protect my property?

Yes, if you do it properly. You may use a reasonable amount of force to prevent someone from causing damage (or trespassing) on your property. However, you are required to give a verbal warning to cease and desist unless it would be pointless or dangerous to do so. Furthermore, once the damage has already been inflicted, you cannot attack the intruder/vandal after the fact. If the intruder has stolen personal property, then the trespass is still ongoing while you are in hot pursuit, and you will have a defense in court for all properly conducted uses of force.

You may not use force if the so called “trespasser” has a “legal privilege” to be on your land. Legal privileges include:

  • Necessity: entry onto the property is reasonably necessary to avoid damage or injury resulting from a natural or artificial source. The injury/damage being avoided must be greater than the harm that will be caused by trespassing on another’s land. Necessity can either be public (for the benefit of the public) or private (for the benefit of a small number of people). If the necessity is private, then the intruder must pay for any damage caused (although they will be otherwise protected from other liability).
  • Recapture of Chattels (personal property): If someone else’s personal property accidentally or wrongfully ends up on your property, they are legally allowed to go onto your property to retrieve it (like the baseball in Sandlot). However, the owner of the “chattel” must give notice to the property owner and make a request for the return of the item(s) in question. If the landowner refuses to return it, then you may enter. If the landowner did not wrongfully place the item(s) on their land, then the one entering to retrieve the item(s) is liable for any damage caused to the land. If it is your fault that the item(s) are on the other person’s land, then you have no privilege to enter and must resort to legal process to get your property back.
  • Privilege of arrest: A police officer or a private citizen may enter another person’s property without a warrant in order to arrest someone on that property. The officer cans still be sued for any misconduct on the property or against the person being arrested. If a citizen makes a felony arrest, then they can be held liable if the arrested person did not actually commit a felony.

Of these privileges to enter land, each of them is also a defense against a personal injury lawsuit.

Can a teacher or parent be sued for disciplining a child?

So long as reasonable force was used, then disciplining a child is a defense to uses of force or injuries that might otherwise result in civil liability.

.

.

Click link to schedule a free case evaluation:

https://app.acuityscheduling.com/schedule.php?owner=17105687&appointmentType=13607154

For more information visit our website: https://www.akivagoldman.com/
You can give us a call for a FREE phone consultation at (248) 588-3333

For additional information please click here: https://www.akivagoldman.com/michigan-personal-injury-attorney/

Personal Protection orders (PPOs)

Domestic Violence – (248) 588-3333 – What You May Not Know About Domestic Violence

.

.

What is a personal protection order?

A personal protection or PPO is a court issued legal order designed to protect domestic violence victims and place restrictions on domestic violence perpetrators.

How do I get a PPO?

You must file a petition with a judge. This petition will contain all of the necessary information that the judge needs to determine if you qualify for a PPO. Try your best to give a detailed description of what happened and who did it to you? Try to remember dates and times as specifically as possible. If you have any copies of police reports, you should include them with your petition.

In addition to showing a domestic relationship, you must also demonstrate to the judge that you are afraid that the target of your order is likely to stalk, harass, threaten, or assault you.

What does a PPO do for me?

A PPO is a restraining order. It legally bars the person subjected to it from certain actions and behaviors. More specifically, it bans them from:

  • Entering your home or any other place that you occupy
  • Assaulting, attacking, or harassing another person
  • Threatening to injure or kill you or another person
  • Removing any child that you have legal custody over
  • Buying or possessing a firearm
  • Preventing you from removing your children or personal possessions from any place owned or leased by the abuser
  • Interfering with you at your school or job; or otherwise harming your career, education, or environment
  • Having access to your home or work address or any telephone number associated with a child you both share
  • Stalking you
  • Causing mental harm or otherwise coercing you by threatening to harm or take away an animal that you own
  • Any other action that interferes with your personal freedom or causes a reasonable fear of violence

Violation of a protection order is a crime. If you call the police, the violator is subject to immediate arrest. Following a violation, you can petition the court for a motion to show cause for the violation of the protection order. This will likely result in the judge punishing your abuser.

It is extremely important that you report any violation of your order. Do not allow your abuser to convince you that “things will be different”. Your order has a finite duration, allow that duration to run its course.

What happens if my abuser learns about the order before it takes effect?

This is an extremely important issue. You can and should ask for an ex-parte order. This temporary emergency order will protect without the need to have a hearing or inform your abuser. If you don’t get an ex-parte order, not only will you have to serve notice on your abuser, but a hearing will be scheduled. In that hearing, your abuser will be allowed to testify and to contest your protection order. If the judge denies your request for an ex-parte order, you can schedule a hearing within 21 days for a standard protection order.

Either way, the order becomes effective the moment the judge signs it. The order itself will state that it is effective immediately and enforceable anywhere in Michigan or the United States. It will list the prohibited actions and the consequences of violating the order. It will also contain the expiration date of the order as well as the law enforcement agency that will be enforcing it.

Is there anything else I should know about domestic violence and PPO’s?

Yes, especially if you have ever been a victim or a perpetrator of domestic violence. Under Michigan law, the police may perform a warrantless arrest of anyone if they have probable cause that domestic violence has occurred, or if they have reason to believe that person is subject to a PPO and has subsequently violated that protection order in some way. However, this warrantless arresting authority is only valid for the following suspected PPO violations:

  • Entering a protected premises
  • Attacking the petitioner (the person protected by the PPO)
  • Threatening to kill or harm the petitioner
  • Removing a minor child from their legal custodian
  • Purchasing or owning a firearm
  • Preventing the petitioner from removing their children or personal property from any premises owned or leased by the person restricted by a PPO
  • Interfering with the petitioner at their work or school
  • Stalking

This is something important to keep in mind if you are concerned about a potential hostile encounter with your abuser or if you have a record of abuse and suspect that you may be going into a situation where you may have a less than cordial encounter with the party at the other end of that particular incident.

If someone is arrested for violating the terms of a PPO, they could be charged with criminal contempt, which carries a max sentence of 93 days in jail and a $500 fine.

Help and Resources for Domestic Violence Victims

U.S. national domestic violence hotline: 1-800-799-7233

For help and resources in Michigan visit: https://www.michigan.gov/mdhhs/0,5885,7-339-71548_7261—,00.html

Or visit the MDHSS website, find the tab labeled “Safety and injury prevention” at the top of the page. Find “Domestic and Sexual violence” on the drop down menu. This will bring you to a webpage with a variety of resources including a database of shelters and other resources organized by county.

.

.

Click link to schedule a free case evaluation:

https://app.acuityscheduling.com/schedule.php?owner=17105687&appointmentType=13607154

For more information visit our website: https://www.akivagoldman.com/
You can give us a call for a FREE phone consultation at (248) 588-3333

For additional information please click here: https://www.akivagoldman.com/michigan-family-law-attorney/domestic-violence/

#Michiganlawyers #Michiganattorneys #legaladvice #Freelegaladvice #Goldmanandassociateslawfirm #Domesticviolence #Criminalattorney #Michigancriminalattorney #OaklandCounty #WayneCounty #MacombCounty #Domesticviolenceattorney #PPO

 

What is Domestic Violence?

Domestic Violence – (248) 588-3333 – What is domestic violence

Someone close to me is attacking/threatening me, what should I do?

This is likely to be a case of domestic violence, so you might consider getting a Personal Protection Order (PPO) against that person.

What makes it “domestic” violence?

It is a violent act committed by someone with whom you share a domestic relationship. A domestic relationship can be any one of the following:

  • A spouse or other family member
  • The unmarried parent of your child
  • Someone you are living with or have lived with previously
  • Anyone you have ever been romantically involved with

Military Domestic Violence

Protection orders targeting military personnel are affected by similar regulations as other domestic issues in a military context. In that military context, PPO’s are called civilian protection orders (CPO). There are also MPOs which protect military personal from someone else.

What happens if my domestic abuser is in the military?

He will enjoy certain procedural protections to prevent unfairness against a person who might be posted out of state or overseas. This is especially crucial for a service member because a PPO might bar them from owning or carrying firearms. It may also result in lost pay, the inability to re-enlist, or even a discharge from the military.

These due process regulations allow the service member to request a 90 day (three month) stay on the hearing if military duty prevents him from attending it. It also allows them to request that the court reopen a case with a default judgement if certain requirements are met (see section on military divorce). A CPO is just as effective on a military base as it is anywhere else.

Help and Resources for Domestic Violence Victims

U.S. national domestic violence hotline: 1-800-799-7233

For help and resources in Michigan visit: https://www.michigan.gov/mdhhs/0,5885,7-339-71548_7261—,00.html

Or visit the MDHSS website, find the tab labeled “Safety and injury prevention” at the top of the page. Find “Domestic and Sexual violence” on the drop down menu. This will bring you to a webpage with a variety of resources including a database of shelters and other resources organized by county.

.

.

Click link to schedule a free case evaluation:

https://app.acuityscheduling.com/schedule.php?owner=17105687&appointmentType=13607154

For more information visit our website: https://www.akivagoldman.com/
You can give us a call for a FREE phone consultation at (248) 588-3333

For additional information please click here: https://www.akivagoldman.com/michigan-family-law-attorney/domestic-violence/

#Michiganlawyers #Michiganattorneys #legaladvice #Freelegaladvice #Goldmanandassociateslawfirm #Domesticviolence #Criminalattorney #Michigancriminalattorney #OaklandCounty #WayneCounty #MacombCounty #Domesticviolenceattorney

 

 

What it means to be sued for negligence

Personal Injury – (248) 588-3333 – negligence

.

.

What is Negligence?

Negligence is the most common legal standard for determining liability for personal injuries. In short, it is defined as a specific form of careless behavior that causes injury to another person.

What is the specific standard for negligence?

 In order to win a negligence lawsuit, the plaintiff must prove each of the following:

  • That the defendant had a “duty of care” towards the plaintiff during the incident. That duty of care obligates the defendant to behave as a reasonable person under similar circumstances would act (or some other applicable standard).
  • That the defendant breached that duty of care
  • That the breach of duty caused the alleged harm to the plaintiff
  • That the plaintiff suffered actual harm or injury.

How do you determine when someone has a duty of care towards another?

A defendant owes a duty of care to all foreseeable plaintiffs. In other words you owe a duty of care to anyone that you would reasonably perceive to be at risk as a result of your actions.

What are some examples of people with a duty of care?

He are some examples of situations where someone owes or is owed a duty of care:

  • If you cause an accident where rescuers are involved, then your duty of care extends to those rescuers (i.e. they are foreseeable plaintiffs). This also includes situations where you yourself are in need of rescue. Firefighters and police officers are generally barred from filing a lawsuit against a rescue under the “firefighters rule”.
  • If a particular economic transaction was intended or foreseen to benefit a third party (such as a will or a trust), then that third party is owed a duty of care by the participants in that transaction.

Duty of care typically exists where there is a special relationship (such as parent and child). It also exists between business owners and their patrons/customers. It also exists, to varying degrees, between property owners and guests on their property.

In certain circumstances you can owe a duty of care to someone you rescue, especially if you were the one to put them in danger in the first place.

How does the court define “reasonable person”?

The “reasonable person” is a fictional person whose behavior is measured against the behavior of a defendant in a lawsuit. The reasonable person does not have a race, an age, a gender, or any mental handicaps. These factors are not considered at all when determining the reasonableness of a person’s actions. However, it will take into account physical disabilities such as blindness or paralysis.

Children are subjected to a slightly modified standard of reasonable care that takes into account age and relative life experience. The exception to this is when the child engages in an adult activity, in which case the same standard as adults applies.

Is “the reasonable person” the only standard used to determine the duty of care?

No, it is not. In addition to the lenient standard we use for children, we also expect individuals with superior or exceptional knowledge and experience to exercise that advantage and thus they are held to a higher standard. Examples of this include:

  • Certain professionals: An occupation with certain skills, such as doctors, would be held to a higher standard in situations involving medical care. This heightened duty comes with an obligation for doctors to disclose the risks of any treatment and to obtain a patient’s informed consent.
  • Common carriers and innkeepers: entities who provide a very public service to a large number of people have a very high standard of care towards their guests. They are liable for even slight negligence.
  • Bailment situations: A bailment relationship occurs when you entrust your personal property to the temporary possession of another person. An example of this would be leaving your car at an auto repair shop. The auto repair shop becomes the “bailee” while the owner is the “bailor”. The standard of care expected of a bailee depends on the nature of the bailment. There are generally three kinds of bailment relationships.
  • Bailments that are for the sole benefit of the bailee, such as letting someone borrow something from you. This imposes a very high standard of care.
  • Bailments for the sole benefit of the bailor (like free valet services) impose a rather small duty of care where the bailee is only liable for gross negligence.
  • Bailments for mutual benefit (standard auto repair shop) impose a standard duty of care (reasonable person).
  • Public safety laws: If there is a law in place designed to protect members of the public from certain dangers (such as traffic laws), then everyone in that jurisdiction owes a duty of care to everyone that the particular law was meant to protect.
  • Home owners and their guests: When you have someone on your property, that typically creates a duty of care. What that duty consists of varies greatly depending on the circumstance. The law regarding liability for guests is actually quite complex. As such it has its own dedicated chapter in this guide.
  • Attorneys: The standard of care for attorneys is their adherence to the standards of professional conduct.

How does the court determine that a duty of care has been breached?

Usually this question is left to the judge or jury’s discretion. They will have to decide if the defendant acted as prudently as a reasonable person under the same circumstances would have. There are some common examples and principals that these decision makers will use determine if breach has occurred.

  • Custom: If there are certain customs in society or a particular industry, than a court might consider that any actions complying with that custom do not breach the standard of care. However, a judge or jury can still decide that the custom is unreasonable and negligent.
  • Violation of a public safety statute: We all owe a duty of care in the context of public safety laws. If there is a public safety law (like a traffic law), then all people driving cars owe a duty of care to anyone that law is meant to protect. A violation of such a law that results in injury is a pretty clear cut “breach” of the duty to care. This principle is known among lawyers as “negligence per se”.
  • Res Ipsa Loquitur: This is a legal term of art used to describe situations where it is difficult to determine precisely what negligent action or person may have caused the accident. The factors used to prove a breach of duty in such a situation are:
  • An accident of the sort that doesn’t usually happen unless someone has been negligent.
  • If there was any negligence, it was likely on the part of the defendant. This is usually shown by the fact that whatever object or element that caused the injury was in the exclusive possession or control of the defendant.

Making a case for Res Ipsa Loquitur does not guarantee that the judge or jury will find the defendant to be liable. It only means that the plaintiff has satisfied their burden of proving a duty of care and a plausible breach of that duty.

Do you ever have a duty to take action? Or is it just a duty to avoid negligent behavior?

Usually, there is no affirmative duty to act. However, there are some exceptions. You have a duty to take action in the following scenarios:

  • Once you start giving aid to someone, you are required to follow through and do so with reasonable care. The Michigan Good Samaritan law create an exception to this rule for doctors and nurses. Under that law, medical practitioners are immune from liability for negligence if they had a good faith belief that there was a life threatening emergency. This immunity is revoked if the practitioner was grossly negligent, which is medical malpractice.
  • If you were the one to put the plaintiff in peril, you have the duty to help them.
  • If there is a special relationship (parent-child, innkeeper-guest, etc.) then the duty of reasonable care may require them to aid the other person.
  • If have the ability and authority to control the actions of a third party, you may be obligated to prevent that third party from injuring another person.
  • Merchants generally have no duty to protect their customers from the crimes of third-parties. They are only required to take steps to expedite the involvement of police. However, if there is continuous criminal activity at the business which creates a nuisance, then the property owner is liable for any criminal attacks on their customers.
  • If a mental health professional overhears a patient threaten violence against someone, and appears willing and able to make good on that threat, then they must either warn the police (and the person being threatened), or hospitalize the patient making the threat.

How do you show that the defendant “caused” the injury?

In order to be liable for an injury or damage, the defendant must be both the “actual” and “proximate” cause. “Actual” cause refers to the literal physical cause of the event. However, even if the defendant is the actual cause it might not be the proximate cause (a cause that is not actual can never be proximate). “Proximate” in this context just means that something is the legal cause of the event.

There are a number of ways to show that someone or something is the actual cause of an accident or injury. One method of doing so is known as the “But for” test. This is where the plaintiff argues that “but for” the negligent actions of the defendant, the plaintiff would not have been injured. Even if there are multiple causes of the injury, the plaintiff might be able to argue that the defendant was a “substantial factor”, in which case they will still be considered the actual cause.

Showing that the defendant is the proximate cause of the injury usually means showing that the injury was a foreseeable risk or consequence of the defendant’s action. Even if the injury was directly caused by the defendant’s negligence, if the injury was unforeseeable in those circumstances, then the defendant will not be liable. For example, if someone hits your car, and detonates the explosive device in your trunk, they would not be liable for the damage caused the explosion.

What if a totally random thing, person, or event suddenly entered the picture and actually caused the injury?

The technical term for this sort of situation is an intervening force. These forces can be either foreseeable or unforeseeable, as can the results of their intervention. Whichever category they qualify as determines what their ultimate effect will be in the law suit. If the ultimate effect of the intervening force was unforeseeable (even if the force itself was foreseeable), then the defendant will not be liable. If the force itself was unforeseeable (you drive recklessly and end up toppling a tree instead of hitting another car), but the result itself was a foreseeable consequence of your negligence (the other car is totaled by the tree rather than your car), then the defendant is still liable. It goes without saying that foreseeable results of unforeseeable intervening forces do not remove save the defendant from liability (your bad driving forces the plaintiff to swerve and hit another driver’s car).

What if the plaintiff had a prior injury that the accident made worse? What if they were really fragile to begin with?

Even if the plaintiff was abnormally prone to injury, you are still liable for the full extent of the damage you cause to them. You take the plaintiff as you find them. This is also known as “the eggshell skull rule”

How is damage determined in negligence cases?

The damage awarded in a negligence lawsuit depends on several factors. There are also multiple types of damages awarded. The complete list of factors and types of damage are as follows:

  • Personal injury: all foreseeable direct damage resulting from an injury. This typically includes medical expenses and lost wages. It can also involve nonfinancial damages such as “pain and suffering”.
  • Property damage: The reasonable cost of repairing or replacing damaged or destroyed property. When replacing destroyed property, the damage awarded will be the fair market value of the property at the time it was destroyed.
  • Punitive damages: Damages meant to punish rather than compensate the plaintiff. These are typically not awarded in negligence cases. However, an exception might be made if the defendant caused the injury intentionally or if they were particularly malicious. Michigan only allows punitive damages where there is emotional harm.
  • Interest on damages: will never be awarded. The court will only impose the upfront value of the damages.
  • Attorneys’ fees: Almost never awarded in American civil courts.
  • Duty to mitigate: All plaintiffs are obligated to take reasonable steps to mitigate the damage. Failure to mitigate will likely cause a reduction in the damages awarded by the court.
  • Collateral source rule: Even if a plaintiff receives benefits for the injury from somewhere else, the damages will not be reduced.

Can you be sued for negligently causing emotional damage?

The answer to this question is rather uncertain. In other jurisdictions, the courts recognize the cause of action for negligent infliction of emotional harm. However, the Michigan Supreme Court has not yet officially recognized such a cause of action. There are several cases by the appeals court that have recognized it.

In the event that the Supreme Court actually does recognize it, it is important to know how other states approach the issue. The only situations where emotional harm creates liability is where the plaintiff’s distress is caused by a near miss, where they nearly died or where nearly injured. The plaintiff must have been in the “zone of danger” where them getting killed or injured was a reasonable possibility. The other requirement is that the plaintiff must show physical symptoms of their distress.

There is an exception to the “zone of danger” rule. A plaintiff who was not at risk of death or injury can still sue for emotional distress if the victim who actually got hurt was closely related to the plaintiff and if the plaintiff personally witnessed the accident.

.

.

Click link to schedule a free case evaluation:

https://app.acuityscheduling.com/schedule.php?owner=17105687&appointmentType=13607154

For more information visit our website: https://www.akivagoldman.com/
You can give us a call for a FREE phone consultation at (248) 588-3333

For additional information please click here: https://www.akivagoldman.com/michigan-personal-injury-attorney/

#MichiganAttorneys #MichiganInjuryLawyers #GoldmanAndAssociates #OaklandCounty #WayneCounty #MacombCounty#PersonalInjury

Charged with manslaughter in Michigan

Homicide – (248) 588-3333 – Manslaughter

.
.

What is manslaughter?

Manslaughter is any unlawful killing that isn’t a murder. Manslaughter can be either voluntary or involuntary. 

Manslaughter is one of several homicide crimes in Michigan.

What is Homicide?

Homicide is a category of crimes involving the killing of a human being. Some homicides are justifiable and therefore legal, but any killing not authorized by law is a serious crime.

Most homicides require the mental state of “malice”. Malice involves any of the following:

  • Intent to kill
  • Intent to cause serious bodily harm
  • Intent to create a severe risk of death or bodily harm while demonstrating a reckless disregard for human life.

What is voluntary manslaughter?

A voluntary manslaughter is any killing that would be considered a murder except for the fact that it resulted from a heat of passion triggered by adequate provocation.

In order to be “adequate” the provocation must meet a four part test

  1. The provocation would have caused a sudden and intense passion for any ordinary person it was directed at.
  2. The defendant must have actually been provoked. In Michigan, insulting words alone are usually not enough to be adequate provocation.
  3. There must be no significant cooldown period between the provocation and the killing. (stewing on it for 24 hours then going through with the murder does not fly in Michigan).

Voluntary manslaughter is a class C felony (15 years).

What is involuntary manslaughter?

There are three forms of involuntary manslaughter in Michigan. The first form is where there defendant has unintentionally caused someone’s death and did so by acting in a “grossly negligent” manner. A reasonable person in that person’s position would have realized the danger their conduct would create. That person must be aware of the danger and be capable of avoiding the harm.

The second form of involuntary manslaughter happens when someone kills in self-defense but did so with excessive force or in a grossly negligent manner.

The third form of involuntary manslaughter is known as “misdemeanor manslaughter”. Misdemeanor manslaughter is similar to felony murder except the killing happens during the commission of a misdemeanor crime rather than a felony.

Involuntary manslaughter us a class C felony (15 years). It also carries a possible $7500 fine and/or restitution to the victim’s family. It can also be accompanied by a wrongful death lawsuit from said family.

What is statutory manslaughter?

A person can be charged with statutory manslaughter for pointing a gun at someone without malice, if doing so results in the death of that person. This carries the same penalty as involuntary manslaughter. A police officer cannot be charged with statutory manslaughter.

Does the prosecutor have to specify a particular murder charge they are bringing against me?

No, they do not. Michigan law allows the prosecution to bring a charge of “open murder”. At that point they are free to try to make a case for any murder or manslaughter charge they please and the defendant can be convicted of any one of them.

What makes a crime a felony or a misdemeanor?

A misdemeanor is any crime whose maximum penalty is less than a year in prison, or punished solely by a fine.

A Felony is a crime Punishable by death or more than a year in prison. However, Michigan abolished the death penalty for all crimes except treason in 1847. Death penalty for treason was abolished in 1962. Therefore, felonies for state crimes in Michigan are determined solely by possible prison sentence. Michigan citizens can still be put to death by the federal government for federal crimes committed in Michigan.

Felonies in Michigan are divided into 8 “classes” designated by a letter of the alphabet. All manslaughter offenses are class C felonies.

What is a class C felony?

  • Class C: Up to 15 years in prison. Includes manslaughter and robbery

What does the prosecutor need to prove in order to convict me?

In order to obtain a valid guilty verdict, the prosecution must prove beyond a reasonable doubt that you performed the specific physical act (actus reus) while having the specific mental state (mens rea) described in the statute you are being charged under.

The physical act must be voluntary (getting pushed or being unconscious doesn’t count) and can also include spoken words. It can also include the failure to act when you have a legal duty to take certain actions. Examples of such duties include:

  • Statutes: requiring you to file tax returns, report accidents, etc.
  • Any contract requiring you to take certain actions (such as those for nurses and lifeguards)
  • A special relationship such as a parent and a child which creates an elevated duty of care
  • A Good Samaritan law which creates a duty to continue to help once you start to assist someone in trouble.
  • You can also be charged with failing to help someone if you were the one who put them in danger.

In order for a duty to act to be legally effective, you must be aware of the duty and be reasonably capable of performing the acts required by that duty.

What kinds of mental states are involved in manslaughter crimes?

Most criminal statutes use one of several mental states that are widely used in criminal law. These crimes are known as “general intent” crimes. The mental states involved in such statutes are as follows:

  • Purposely: you must have specifically intended to perform the act or create the result described in the statute.
  • Knowingly: You must have acted knowing that the unlawful harm or result was certain or very likely to occur. Particularly relevant in terms of flawed self-defense manslaughter. In such cases the defendant must have knowingly resorted to the lethal force knowing it had the possibility to kill.
  • Gross negligence: A reasonable person would realize just how dangerous their conduct was. Beyond ordinary negligence.
  • Adequate provocation: purposely resorted to violence due to a provocation which would drive a reasonable person to a violent rage.

Some crimes, like arson and certain forms of murder are called “malice crimes” because they require the mental state of malice. Malice is a reckless disregard for the extreme or obvious risk of a harmful event occurring.

.

.

Click link to schedule a free case evaluation:

https://app.acuityscheduling.com/schedule.php?owner=17105687&appointmentType=13607154

For more information visit our website: https://www.akivagoldman.com/
You can give us a call for a FREE phone consultation at (248) 588-3333

For additional information please click here: https://www.akivagoldman.com/michigan-criminal-attorney/

Charged with 2nd degree murder

Homicide – (248) 588-3333 – Second degree murder

.

.

What is second degree murder?

Second degree murder is any murder that is not first degree murder. This includes “common law murder” which is any killing done with malice. Due to the fact that second degree murder can also be punished by life in prison, it is a class A felony (up to life in prison).

Does the prosecutor have to specify a particular murder charge they are bringing against me?

No, they do not. Michigan law allows the prosecution to bring a charge of “open murder”. At that point they are free to try to make a case for any murder or manslaughter charge they please and the defendant can be convicted of any one of them.

What makes a crime a felony or a misdemeanor?

A misdemeanor is any crime whose maximum penalty is less than a year in prison, or punished solely by a fine.

A Felony is a crime Punishable by death or more than a year in prison. However, Michigan abolished the death penalty for all crimes except treason in 1847. Death penalty for treason was abolished in 1962. Therefore, felonies for state crimes in Michigan are determined solely by possible prison sentence. Michigan citizens can still be put to death by the federal government for federal crimes committed in Michigan.

Felonies in Michigan are divided into 8 “classes” designated by a letter of the alphabet. Each class is defined by the maximum sentence for that offense.

What is a class A felony?

  • Class A: punishable by a life sentence or any sentence greater than 20 years. Includes first and second degree murder, assault with a deadly weapon, and first-degree criminal sexual conduct.

What does the prosecutor need to prove in order to convict me?

In order to obtain a valid guilty verdict, the prosecution must prove beyond a reasonable doubt that you performed the specific physical act (actus reus) while having the specific mental state (mens rea) described in the statute you are being charged under.

The physical act must be voluntary (getting pushed or being unconscious doesn’t count) and can also include spoken words. It can also include the failure to act when you have a legal duty to take certain actions. Examples of such duties include:

  • Statutes: requiring you to file tax returns, report accidents, etc.
  • Any contract requiring you to take certain actions (such as those for nurses and lifeguards)
  • A special relationship such as a parent and a child which creates an elevated duty of care
  • A Good Samaritan law which creates a duty to continue to help once you start to assist someone in trouble.
  • You can also be charged with failing to help someone if you were the one who put them in danger.

In order for a duty to act to be legally effective, you must be aware of the duty and be reasonably capable of performing the acts required by that duty.

What kinds of mental states is involved with second degree murder?

Most criminal statutes use one of several mental states that are widely used in criminal law. These crimes are known as “general intent” crimes. The mental states involved in such statutes are as follows:

  • Purposely: you must have specifically intended to perform the act or create the result described in the statute.

Some crimes, like arson and certain forms of murder are called “malice crimes” because they require the mental state of malice. Malice is a reckless disregard for the extreme or obvious risk of a harmful event occurring.

.

.

Click link to schedule a free case evaluation:

https://app.acuityscheduling.com/schedule.php?owner=17105687&appointmentType=13607154

For more information visit our website: https://www.akivagoldman.com/
You can give us a call for a FREE phone consultation at (248) 588-3333

For additional information please click here: https://www.akivagoldman.com/michigan-criminal-attorney/

How To Have A Successful Divorce [Video]

Divorce – (248) 588-3333 – How To Have A Successful Divorce
.
.
Statistically speaking, about half of marriages do not last forever which means 50% of marriages end up resulting in divorce. In order to have a successful divorce, it essentially comes down to three things. Those three things are if you have kids then you must maintain a healthy relationship with your kids, the ability to work together and cooperate with your ex, and lastly how to financially survive the divorce process. If you look at those three factors carefully, these are all things that occur in the post divorce environment. However you do not leap into the post divorce environment without laying the proper foundation during the divorce which ultimately will help you have a successful divorce.

You must be careful who you hire to represent you for divorce. Do not let your emotional state interfere with your ability to asses who the best attorney is for you. If you can envision yourself working well with your ex, and work together to benefit your children, then you must hire an attorney who shares the same vision as you. In addition to this, you should always be mindful of how you conduct yourself during the divorce process. During the process, you must identify what is worth fighting about and what isn’t. Lastly, never take advice from anyone who isn’t a lawyer. You should always be able to trust your attorney that you hired to answer all of your questions and give you the best advice possible in order to help you achieve the best possible outcome!
.
.
Click the link to schedule a free case evaluation: https://app.acuityscheduling.com/schedule.php?owner=17105687&appointmentType=13607154

For more information visit our website: https://www.akivagoldman.com/
You can give us a call for a FREE phone consultation at (248) 588-3333

For additional information please click below:

https://www.akivagoldman.com/michigan-legal-blog/michigan-divorce-lawyer/

#Michiganlawyers #Divorceattorney #Michigandivorcelawyer #Goldmanandassociates #Goldmanandassociateslawfirm #Divorceprocess #MacombCounty #OaklandCounty #WayneCounty #Detroit #DivorceLawyer #Successfuldivorce

Charged with Homicide in Michigan

Michigan criminal defense – (248) 588-3333 – Homicide

.

.

Homicide

Homicide is a category of crimes involving the killing of a human being. Some homicides are justifiable and therefore legal, but any killing not authorized by law is a serious crime.

Most homicides require the mental state of “malice”. Malice involves any of the following:

  • Intent to kill
  • Intent to cause serious bodily harm
  • Intent to create a severe risk of death or bodily harm while demonstrating a reckless disregard for human life.

What is first degree murder?

Under Michigan law, first degree murder is any willful, deliberate, or premeditated killing, particularly those that involve ambushes or poison. First degree murder also includes “felony murder” and the murder of an on-duty police officer. “Premeditation” simply means that the perpetrator spent some significant amount of time thinking before killing the victim. Even a moments pause or “thinking twice about it” is enough to constitute premeditation. “Deliberate” or “deliberation” means that the killer was relatively calm and collected when they performed the killing.

In cases of murder involving the murder of a police officer, the killer must have known that the victim was a police officer. Also, the prosecution does not have to show that the killer specifically intended to kill the officer as long as they can still prove malice.

First degree murder carries a mandatory life sentence, making it a class A felony.

What is felony murder?

Felony murder occurs when someone is called during the commission of a dangerous felony. Michigan law defines “dangerous felony” as any one of the following felonies:

  • kidnapping
  • criminal sexual conduct (i.e. rape)(first, second, or third degree)
  • larceny
  • robbery
  • carjacking
  • extortion
  • abusing a vulnerable adult (first or second degree)
  • breaking and entering
  • home invasion (first or second degree)
  • child abuse (first degree)
  • substance abuse (of a major controlled substance)
  • arson
  • torture
  • aggravated stalking
  • unlawful imprisonment

In Michigan, the killing of a co-felon does not count as felony murder. If one of the felons or a police officer responding to the felony kills someone, then all of the co-felons are equally guilty of felony murder. While Michigan requires proof of malice, dangerous felonies often carry a high risk of death that makes it easy to imply malice.

The rationale behind criminalizing felony murder is acknowledging the fact that the person who commits or participates in a dangerous felony that is endangering bystanders. Therefore, they should be penalized if the danger they created ends up getting someone killed, especially if they themselves are the killer.

What is second degree murder?

Second degree murder is any murder that is not first degree murder. This includes “common law murder” which is any killing done with malice. Due to the fact that second degree murder can also be punished by life in prison, it is a class A felony (up to life in prison).

What is manslaughter?

Manslaughter is any unlawful killing that isn’t a murder. Manslaughter can be either voluntary or involuntary. 

What is voluntary manslaughter?

A voluntary manslaughter is any killing that would be considered a murder except for the fact that it resulted from a heat of passion triggered by adequate provocation.

In order to be “adequate” the provocation must meet a four part test

  1. The provocation would have caused a sudden and intense passion for any ordinary person it was directed at.
  2. The defendant must have actually been provoked. In Michigan, insulting words alone are usually not enough to be adequate provocation.
  3. There must be no significant cooldown period between the provocation and the killing. (stewing on it for 24 hours then going through with the murder does not fly in Michigan).

Voluntary manslaughter is a class C felony (15 years).

What is involuntary manslaughter?

There are three forms of involuntary manslaughter in Michigan. The first form is where there defendant has unintentionally caused someone’s death and did so by acting in a “grossly negligent” manner. A reasonable person in that person’s position would have realized the danger their conduct would create. That person must be aware of the danger and be capable of avoiding the harm.

The second form of involuntary manslaughter happens when someone kills in self-defense but did so with excessive force or in a grossly negligent manner.

The third form of involuntary manslaughter is known as “misdemeanor manslaughter”. Misdemeanor manslaughter is similar to felony murder except the killing happens during the commission of a misdemeanor crime rather than a felony.

Involuntary manslaughter us a class C felony (15 years). It also carries a possible $7500 fine and/or restitution to the victim’s family. It can also be accompanied by a wrongful death lawsuit from said family.

What is statutory manslaughter?

A person can be charged with statutory manslaughter for pointing a gun at someone without malice, if doing so results in the death of that person. This carries the same penalty as involuntary manslaughter. A police officer cannot be charged with statutory manslaughter.

Does the prosecutor have to specify a particular murder charge they are bringing against me?

No, they do not. Michigan law allows the prosecution to bring a charge of “open murder”. At that point they are free to try to make a case for any murder or manslaughter charge they please and the defendant can be convicted of any one of them.

What if I cause someone’s death due to a traffic violation?

Then you are guilty of the crime known as “moving violation that results in death”. A moving violation is any act or failure to act which violates the Michigan vehicle code or any local automobile ordinance. This is a misdemeanor (up to 1 year in prison/ $2,000). The prosecutor does not need to prove gross negligence, only that you actually committed the moving violation.

What if I cause an injury, but they don’t die from it for over a year? Is that still homicide?

Yes, long as your actions were a cause of that person’s death, it does not matter how long it takes them to succumb to their injuries.

What if the victim’s death was partially the result of their own negligence/carelessness? Can I still be charged with homicide?

The contributory negligence of the victim is not a defense to a homicide. That being said, the jury may still consider the possibility that the victim’s negligence, rather than your actions, was the proximate cause of their death. This might result in your acquittal, so it is beneficial to you to introduce evidence of the alleged victim’s careless or negligent conduct during a homicide trial.

What makes a crime a felony or a misdemeanor?

A misdemeanor is any crime whose maximum penalty is less than a year in prison, or punished solely by a fine.

A Felony is a crime Punishable by death or more than a year in prison. However, Michigan abolished the death penalty for all crimes except treason in 1847. Death penalty for treason was abolished in 1962. Therefore, felonies for state crimes in Michigan are determined solely by possible prison sentence. Michigan citizens can still be put to death by the federal government for federal crimes committed in Michigan.

Felonies in Michigan are divided into 8 “classes” designated by a letter of the alphabet. Each class is defined by the maximum sentence for that offense. The classes are as follows:

  • Class A: punishable by a life sentence or any sentence greater than 20 years. Includes first and second degree murder, assault with a deadly weapon, and first-degree criminal sexual conduct.
  • Class B: Up to 20 years. Includes second degree arson and the production of child pornography.
  • Class C: Up to 15 years in prison. Includes manslaughter and robbery.
  • Class D: Up to 10 years in prison. Includes embezzlement or larceny (of more than $20,000).
  • Class E: Up to 5 years in prison. Includes shoplifting and third degree home invasion.
  • Class F: Up to 4 years in prison. Includes possession of less than 5 grams of marijuana.
  • Class G: Up to 2 years in prison. Includes: Includes a repeat offense of domestic assault and writing bad checks worth more than $500.
  • Class H: Punishable by less than 2 years in prison or by alternative penalties such as probation or electronic monitoring. Includes false representation or using stolen ID to commit another felony.

What does the prosecutor need to prove in order to convict me?

In order to obtain a valid guilty verdict, the prosecution must prove beyond a reasonable doubt that you performed the specific physical act (actus reus) while having the specific mental state (mens rea) described in the statute you are being charged under.

The physical act must be voluntary (getting pushed or being unconscious doesn’t count) and can also include spoken words. It can also include the failure to act when you have a legal duty to take certain actions. Examples of such duties include:

  • Statutes: requiring you to file tax returns, report accidents, etc.
  • Any contract requiring you to take certain actions (such as those for nurses and lifeguards)
  • A special relationship such as a parent and a child which creates an elevated duty of care
  • A Good Samaritan law which creates a duty to continue to help once you start to assist someone in trouble.
  • You can also be charged with failing to help someone if you were the one who put them in danger.

In order for a duty to act to be legally effective, you must be aware of the duty and be reasonably capable of performing the acts required by that duty.

What kinds of mental states are involved in crimes?

Most criminal statutes use one of several mental states that are widely used in criminal law. These crimes are known as “general intent” crimes. The mental states involved in such statutes are as follows:

  • Purposely: you must have specifically intended to perform the act or create the result described in the statute.
  • Knowingly: You must have acted knowing that the unlawful harm or result was certain or very likely to occur.
  • Recklessly: You must have deliberately disregarded a substantial and unjustified risk that the unlawful harm/result would occur. Furthermore, this disregard must be a severe departure from the standard of careful behavior expected from a reasonable person.
  • Negligence: You must have failed to be aware of a significant and unjustified risk that the unlawful harm/result would occur. This failure of awareness must be a significant departure from the level of care and prudence expected from a reasonable person. The violation of some statutes such as speed limit laws can be used as evidence of negligence.

Some criminal statutes use more unique states of mind as requirements for conviction. Certain legal defenses (like voluntary intoxication) are only available for specific intent crimes. Examples of “specific intent” crimes are as follows:

  • Solicitation: must have intended to have the solicitee commit the crime
  • Attempt crimes: must have intended to complete the crime
  • Conspiracy: must have intended to complete the crime
  • First degree murder (depending on the statute): must have had a premeditated intent to kill
  • Assault: must have intended to commit a battery
  • Larceny/robbery: must have intended to permanently deprived the rightful owner of their property
  • Burglary: must have entered the dwelling with the intent to commit a felony
  • Forgery: must have intended to defraud your victim
  • False pretenses: intent to defraud
  • Embezzlement: intent to defraud.

Some crimes, like arson and certain forms of murder are called “malice crimes” because they require the mental state of malice. Malice is a reckless disregard for the extreme or obvious risk of a harmful event occurring.

The final category of mental state is strict liability. These are crimes such as selling liquor to minors or statutory rape. This category of crime does not require you to have awareness of all of the relevant facts (such as a certain person being younger than 18 or 21). So long as you knowingly and voluntarily performed the underlying act (selling alcohol or having sexual relations) you can be convicted of a strict liability crime.

.

.

Click link to schedule a free case evaluation:

https://app.acuityscheduling.com/schedule.php?owner=17105687&appointmentType=13607154

For more information visit our website: https://www.akivagoldman.com/
You can give us a call for a FREE phone consultation at (248) 588-3333

For additional information please click here: https://www.akivagoldman.com/michigan-criminal-attorney/