Atkinson v. City of Detroit, Docket No. 189711

• Decision Date: 25 February 1997
• Docket Number: Docket No. 189711
• Citation: Atkinson v. City of Detroit, 564 N.W.2d 473, 222 Mich.App. 7 (Mich. App. 1997)
• Parties: Brent ATKINSON and Belinda Atkinson-Ramos, Plaintiffs-Appellants, v. The CITY OF DETROIT, Detroit Renaissance Events, Inc., f/k/a Detroit Renaissance Grand Prix, Inc., Professional Engineering Associates, Inc., and Motor Marketing International of Detroit, Inc., Defendants-Appellees, and Cofranca, Inc., and Championship Auto Racing Teams, Inc., Defendants.
• Court: Court of Appeal of Michigan

Page 473

564 N.W.2d 473

222 Mich.App. 7

Brent ATKINSON and Belinda Atkinson-Ramos, Plaintiffs-Appellants, v.The CITY OF DETROIT, Detroit Renaissance Events, Inc., f/k/a Detroit Renaissance Grand Prix, Inc., Professional Engineering Associates, Inc., and Motor Marketing International of Detroit, Inc., Defendants-Appellees and Cofranca, Inc., and Championship Auto Racing Teams, Inc., Defendants.

Docket No. 189711.

Court of Appeals of Michigan.

Submitted Dec. 18, 1996, at Detroit.

Decided Feb. 25, 1997, at 9:05 a.m.

Released for Publication May 15, 1997.

Donald M. Fulkerson, Westland, and Lipton & Lipton, P.C. by Marc Lipton, Southfield, for Brent Atkinson and Belinda Atkinson-Ramos.

Richard A. Kudla & Associates by Pamela L. Marek, Southfield, for City of Detroit and Motor Marketing International of Detroit, Inc.

Plunkett & Cooney, P.C. by Ernest R. Bazzana, Detroit, for Professional Engineering Associates, Inc.

Law Offices of Michael J. Hutchinson by Michael J. Hutchinson and Peter J. Boyles, Detroit, for Detroit Renaissance Events, Inc.

Before TAYLOR, P.J., and GRIBBS and R.D. GOTHAM^*, JJ.

PER CURIAM.

Plaintiffs, Brent Atkinson and Belinda Atkinson-Ramos, appeal as of right an order granting summary disposition to defendants, the City of Detroit, Detroit Renaissance Events, Inc., formerly known as Detroit Renaissance Grand Prix, Inc.(DRE), Championship Auto Racing Teams, Inc., (CART), ¹Professional Engineering Associates, Inc.(PEA), and Motor Marketing International of Detroit, Inc.(MMI).We affirm in part, reverse in part, and remand.

Plaintiff Atkinson was injured in a motor scooter accident on Belle Isle in the City of Detroit.Atkinson was operating the motor scooter during the course of his employment as a Detroit police officer, but was on break at the time of the accident.His left ankle was crushed when he hit a concrete barricade after swerving his scooter to avoid an oncoming van that was approaching on the wrong side of the road.The concrete barricade was part of the Grand Prix race track on Belle Isle.

Atkinson first argues that the trial court erred in invoking the fireman's rule to bar his claim.We agree.

On appeal, a trial court's determination of a motion for summary disposition is reviewed de novo.Pinckney Community Schools v. Continental Casualty Co., 213 Mich.App. 521, 525, 540 N.W.2d 748(1995).The trial court did not specify the specific subrule of MCR 2.116(C) upon which it relied.However, because it referred to materials apart from the pleadings, we will treat the motion as having been granted under MCR 2.116(C)(10) with respect to the fireman's rule.SeeOsman v. Summer Green Lawn Care, Inc., 209 Mich.App. 703, 705, 532 N.W.2d 186(1995).

A motion for summary disposition under MCR 2.116(C)(10) may be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.Pinckney Schools, supra at 525, 540 N.W.2d 748.A trial court should grant such a motion if it is satisfied that the claim suffers a deficiency that cannot be overcome.SSC Associates v. Detroit General Retirement System, 192 Mich.App. 360, 365, 480 N.W.2d 275(1991).

In Michigan, the common-law "fireman's rule" bars police officers from recovering damages for two types of injuries: (1) those deriving from negligence causing the officer's presence, and (2) those stemming from the normal risks of the officer's profession.Woods v. City of Warren, 439 Mich. 186, 196, 482 N.W.2d 696(1992).The rationale for the rule is that "the purpose of safety professions is to confront danger and, therefore, the public should not be liable for damages for injuries occurring in the performance of the very function police officers and fire fighters are intended to fulfill."Kreski v. Modern Wholesale Electric Supply Co., 429 Mich. 347, 368, 415 N.W.2d 178(1987).

In Woods, supra at 197-198, 482 N.W.2d 696, the Michigan Supreme Court held that the fireman's rule precluded the claim of an officer injured when his police car crashed into a house after he drove over a patch of ice while pursuing a stolen car.The Woods Court reasoned that his defective highway claim was barred because his injury stemmed from a fundamental police function.Id. at 192, 482 N.W.2d 696.In support of its holding the Court noted that (1) the officer had a duty to pursue the stolen car, (2) driving at high speeds, as he was required to do to fulfill this duty, increased his risk of injury, and (3) while he was in pursuit, he was "no longer merely on patrol."Id. at 191, n. 4, 192, 482 N.W.2d 696.Moreover, this Court, in Stehlik v. Johnson (On Rehearing), 206 Mich.App. 83, 520 N.W.2d 633(1994), held that the fireman's rule barred recovery by an officer assigned to traffic enforcement injured in a traffic accident while on duty.The Stehlik Court explained that the scope of the fireman's rule "does not include all risks encountered by a safety officer" and that an officer "may be able to recover for injuries suffered while merely on patrol under other circumstances."Id. at 87-88, 520 N.W.2d 633, citingWoods, supra at 192, 482 N.W.2d 696.

Unlike the officer in Woods, supra at 192, 482 N.W.2d 696, Atkinson's status as a police officer did not increase his risk of injury, and unlike the officer in Stehlik, supra at 86-87, 520 N.W.2d 633, Atkinson was not engaged in his specific police assignment (crowd control at another location) at the time of his injury.Atkinson, if anything, was merely on patrol.We conclude that the policy underlying the fireman's rule would not be advanced by barring his claim.SeeKreski, supra at 372, 415 N.W.2d 178.Because the fireman's rule is not fatal to plaintiffs' claims, we hold that the trial court erred in granting summary disposition to DRE, PEA, and MMI.SSC Associates, supra at 364-365, 480 N.W.2d 275.

Atkinson also argues that the trial court erred in disregarding an affidavit explaining his police assignment and presence on Belle Isle.We agree, but note that Atkinson failed to present this claim of error in his statement of the issues involved as required by MCR 7.212(C)(5).SeePreston v. Dep't of Treasury, 190 Mich.App. 491, 498, 476 N.W.2d 455(1991).Nevertheless, we address the issue because it is necessary to our resolution of this appeal.

It is well settled that a party may not create an issue of fact by submitting an affidavit that contradicts prior deposition testimony.E.g., Kaufman & Payton, P.C. v. Nikkila, 200 Mich.App. 250, 256-257, 503 N.W.2d 728(1993).In the case at bar, the trial court disregarded Atkinson's affidavit, in which he claimed he was on "break" from his assigned duties, because it found it to be contradictory to Atkinson's prior interrogatory answers, in which Atkinson stated that he was "on duty patrol."Although we accept the trial court's application of the "no-contradiction" rule to affidavits that contradict prior interrogatory answers, we conclude the trial court erred in disregarding Atkinson's affidavit, because Atkinson's affidavit did not contradict his prior statements.

Atkinson's affidavit, which explained that he was riding the police motor scooter around Belle Isle in order to pass the time while waiting to be dispatched to his assigned crowd control duties on Jefferson Avenue, provided clarification, not contradiction.Although he may have been "on duty" in the sense that he was in uniform, riding a department vehicle in the jurisdiction of his employer during his normal working hours, he may also have been on a "break" from his assigned crowd control duties.Therefore, we hold that the trial court erred in not considering Atkinson's affidavit.

Finally, Atkinson argues that the trial court erred in granting summary disposition to the City of Detroit on the basis of the exclusive...