Ewing v. City of Detroit, Docket No. 187297

• Decision Date: 05 December 1995
• Docket Number: Docket No. 187297
• Citation: 543 N.W.2d 1,214 Mich.App. 495
• Parties: Deborah Ann EWING, Individually and as Next Friend of Krystal Thompson, a minor, Plaintiff-Appellee, v. CITY OF DETROIT, a municipal corporation, Detroit Police Department, Police Officer Michael Malott, Police Officer John Doe and Police Officer Richard Roe, jointly and severally, Defendants-Appellants. (On Remand)
• Court: Court of Appeal of Michigan — District of US

Page 1

543 N.W.2d 1

214 Mich.App. 495

Deborah Ann EWING, Individually and as Next Friend of Krystal Thompson, a minor, Plaintiff-Appellee, v. CITY OF DETROIT, a municipal corporation, Detroit Police Department, Police Officer Michael Malott, Police Officer John Doe and Police Officer Richard Roe, jointly and severally, Defendants-Appellants. (On Remand)

Docket No. 187297.

Court of Appeals of Michigan.

Submitted Sept. 19, 1995, at Lansing.

Decided Dec. 5, 1995, 9:00 a.m.

Released for Publication Feb. 7, 1996.

Law Offices of Jeffrey H. Feldman, P.C. by Jeffrey H. Feldman, Southfield (John A. Lydick, Detroit, of counsel), for plaintiff.

Sullivan, Ward, Bone, Tyler & Asher, P.C. by Ronald S. Lederman, Southfield, for defendants.

Before DOCTOROFF, C.J., and MURPHY and FITZGERALD, JJ.

DOCTOROFF, Chief Judge.

This case is before us on remand from the Supreme Court. We previously issued an order reversing the trial court's grant of summary disposition based on Frohman v. Detroit, 181 Mich.App. 400, 450 N.W.2d 59 (1989). Unpublished order of the Court of Appeals, entered July 6, 1994 (Docket No. 147294). The Supreme Court remanded the case for plenary consideration of the portion of plaintiff's appeal that alleges negligence on the part of defendants City of Detroit and Detroit Police Department [hereinafter defendants]. 448 Mich. 926 (1995). We reverse.

On November 29, 1990, a police task force dealing with motor vehicle theft waited in semimarked cars while they staked out a stolen truck. Third-party defendant, Jay D. McGuigan, entered the truck. When the police approached him, he initially complied with their requests for information. At some point, however, he started the truck and drove away. A high-speed pursuit followed. The police officers testified that they activated their lights and sirens during the chase. The pursuit continued through a residential area where plaintiff was driving her vehicle. Plaintiff's vehicle collided with the truck driven by McGuigan, and plaintiff was injured.

In the suit that followed, the trial court granted summary disposition for all defendants, except McGuigan, on the basis of governmental immunity. MCR 2.116(C)(7) and (10). We upheld the trial court's finding of summary disposition for the individual police officers, because no issue of material fact existed regarding plaintiff's claims of gross negligence. However, pursuant to Frohman, supra, we held that issues of fact existed regarding plaintiff's claims of negligence against defendants.

A government agency may be held liable for an employee's negligent operation of a government vehicle. M.C.L. § 691.1405; M.S.A. § 3.996(105). To establish a prima facie case of negligence, a plaintiff must prove (1) that the defendant owed a duty to the plaintiff, (2) that the defendant breached the duty, (3) that the defendant's breach of duty was a proximate cause of the plaintiff's damages, and (4) that the plaintiff suffered damages. Rasmussen v. Louisville Ladder Co, Inc, 211 Mich.App. 541, 545, 536 N.W.2d 221 (1995).

For purposes of this motion for summary disposition, defendants do not contest that they owed a duty to plaintiff or that some evidence of plaintiff's damages existed. However, defendants argue that they neither breached the duty owed to plaintiff nor proximately caused plaintiff's injuries. For a proper grant of summary disposition for defendants pursuant to MCR 2.116(C)(10), the trial court had to find that, viewing the evidence in a light most favorable to plaintiff, no question of material fact existed regarding defendants' negligence or whether defendants' actions were a proximate cause of plaintiff's injury. Auto-Owners Ins Co v. Johnson, 209 Mich.App. 61, 63-64, 530 N.W.2d 485 (1995).

Our decision in Frohman, supra, was based upon Fiser v. Ann Arbor, 417 Mich. 461, 339 N.W.2d 413 (1983). In Fiser, as in this case, the defendants argued that their duty to the public was governed by specific legislation pertaining to authorized emergency vehicles. M.C.L. § 257.603; M.S.A. § 9.2303. Our Supreme Court stated that these statutes required the officers to drive with reasonable caution. The factors to be considered in determining whether the pursuing officer's actions were reasonable included the existence of an emergency, the speed of pursuit, the area of pursuit, weather and road conditions, the presence of pedestrians and other traffic, the presence or absence of audible and visible warnings, and the reasons the officers were pursuing the fleeing vehicle. Fiser, supra at 472, 339 N.W.2d 413.

In this case, a pursuing officer testified that he reached speeds of sixty miles per hour in a residential neighborhood during the middle of the afternoon. Although the police were attempting to arrest McGuigan, who was fleeing in a stolen vehicle, a reasonable person could find that this situation did not constitute an emergency. See id. The police were chasing McGuigan because, despite the fact that they had staked out the stolen vehicle, they failed to take precautions to prevent him from escaping. We find that, viewing the evidence in a light most favorable to plaintiff, some question of material fact existed concerning whether defendants breached their duty of care.

Reluctantly, we also find that a question of material fact existed regarding whether defendants' actions were a proximate cause of plaintiff's injuries. In Fiser, the Supreme Court held that the police officers' pursuit of the third-party defendant caused him to drive recklessly in an effort to evade them. Therefore, the police were a proximate cause of the plaintiff's injuries when her car was hit by the fleeing third-party defendant. Id. at 475, 339 N.W.2d 413. Because this case also involved a high-speed pursuit in which McGuigan was attempting to escape from the pursuing police officers and hit plaintiff as a result, we are bound to follow Fiser.

In Frohman, supra 181 Mich.App. at 414, 450 N.W.2d 59, this Court noted its concerns about the Fiser rationale:

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