Ewing v. City of Detroit

Decision Date24 September 2002
Docket NumberDocket No. 225401.
PartiesDeborah Ann EWING, and Krystal Thompson, a minor, by her next friend, Deborah Ann Ewing, Plaintiffs-Appellees, v. CITY OF DETROIT, a municipal corporation and Detroit Police Department, Defendants-Appellants. and Jay Dean McGuigan, Third-Party Defendant.
CourtCourt of Appeal of Michigan — District of US

Barbara H. Goldman and Richard E. Shaw, Southfield, for the plaintiffs.

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



In November 1990, Deborah Ewing and her four-year-old daughter, Krystal Thompson, sustained serious injuries when defendant Jay D. McGuigan struck Ewing's vehicle in his flight from the police. Ewing, for herself and as next friend of Thompson, brought suit against the City of Detroit and the Detroit Police Department (hereinafter defendants).1 After several appeals, this case was finally tried before a jury. The jury found in plaintiffs' favor and subsequently judgment was entered awarding Ms. Ewing $1,404,786 in damages and $864,367 in damages for her daughter. Defendants filed a motion for judgment notwithstanding the verdict (JNOV), a new trial, or remittitur, which the trial court denied. Defendants then filed this appeal as of right. After the trial court's decision denying defendants' motion for postjudgment relief and before we had an opportunity to rule on appeal, our Supreme Court issued its decision in Robinson v. Detroit, 462 Mich. 439, 613 N.W.2d 307 (2000), which overruled case law upon which plaintiffs relied to state a claim against defendants in avoidance of governmental immunity. On appeal, defendants urge us to apply the rule enunciated in Robinson. We decline to do so, and we reject defendants' additional appellate arguments. The judgment is affirmed.

I. Basic Facts and Procedural History

This case has a lengthy factual and procedural history. To provide a proper context, we shall briefly recount the essential facts culminating in the lawsuit filed against defendants, followed by a procedural chronicle from the genesis of the lawsuit to the present.

A. Basic Facts

On November 29, 1990, Ms. Ewing was driving through her neighborhood in northwest Detroit at approximately twenty to twenty-five miles an hour with her then four-year-old daughter riding as a passenger. When plaintiffs' vehicle entered the intersection at Florence and Shaftsbury, an "open" residential intersection, a pickup truck driven by McGuigan broadsided her vehicle, rendering both vehicles undriveable. When McGuigan collided with plaintiffs at the intersection, he was fleeing from Detroit police officers.

Witnesses estimated that McGuigan was traveling through the residential area at speeds varying from sixty to seventy miles an hour and from seventy to ninety miles an hour. After the collision, McGuigan got out of the pickup truck and attempted to elude police officers who chased him, apprehended him, and arrested him. Ms. Ewing, on the other hand, remained unconscious in her vehicle. As a result of the collision, both plaintiffs suffered serious injuries.

B. Procedural History

On January 30, 1991, Ms. Ewing, in her individual capacity and as next friend of her minor daughter, filed suit against the individual police officers involved in the chase, the city of Detroit, the Detroit Police Department, and McGuigan, alleging gross negligence and the negligent operation of government vehicles.

On November 8, 1991, the trial court heard oral argument on defendants' motion for summary disposition. The trial court determined that plaintiffs failed to present evidence demonstrating negligence or gross negligence sufficient to overcome governmental immunity, and it granted summary disposition for all defendants except McGuigan.

Plaintiffs appealed the trial court's decision, and this Court affirmed summary disposition for the individual police officers but peremptorily reversed the trial court's decision granting summary disposition to defendants.2 Defendants then filed an application for leave to appeal in the Michigan Supreme Court. On May 2, 1995, our Supreme Court entered an order vacating that portion of this Court's order reversing the trial court's order granting summary disposition to defendants. The case was remanded to this Court for plenary consideration of only that part of plaintiffs' appeal from the trial court's order granting summary disposition to defendants on plaintiffs' governmental immunity theory under M.C.L. § 691.1405. 448 Mich. 928, 534 N.W.2d 519 (1995).

On December 5, 1995, this Court issued its opinion in Ewing v. Detroit (On Remand), 214 Mich.App. 495, 543 N.W.2d 1 (1995), and affirmed its prior determination that the trial court erred in granting summary disposition to defendants on plaintiffs' claim for negligence pursuant to Fiser v. Ann Arbor, 417 Mich. 461, 339 N.W.2d 413 (1983).

In response to this Court's opinion in Ewing, defendants again appealed to our Supreme Court. The Supreme Court consolidated Ewing with Rogers v. Detroit and therein explicitly declined to overrule or otherwise modify its decision in Fiser and thus affirmed this Court's decision in Ewing. Rogers v. Detroit, 457 Mich. 125, 157, 579 N.W.2d 840 (1998).3 On June 16, 1998, our Supreme Court denied rehearing, 457 Mich. 1207, and the case was returned to the trial court with a September 21, 1999, trial date.

On July 30, 1999, in an unrelated matter, our Supreme Court, sua sponte, entered an order announcing its intent to revisit, and potentially overrule, its prior decisions in Fiser and Rogers. Cooper v. Wade, 461 Mich. 1201, 597 N.W.2d 837 (1999). The order provided in relevant part:

On the Court's own motion, these appeals are to be resubmitted for oral argument and decision. The parties are instructed to provide additional briefing addressing the following issues: (1) Whether the Court should overrule Dedes v. Asch, 446 Mich. 99, 521 N.W.2d 488 (1994).(2) Whether the Court should overrule Fiser v. City of Ann Arbor, 417 Mich. 461, 339 N.W.2d 413 (1983), and Rogers v. Detroit, 457 Mich. 125, 579 N.W.2d 840 (1998). The parties should address whether the officers' decision to pursue, as opposed to the officers' physical handling of the vehicle during the pursuit of the fleeing vehicle, can be considered negligent use of a motor vehicle. (3) Whether the phrase "resulting from" in M.C.L. § 691.1405... should be construed as meaning a direct or immediate connection between the negligent operation of the vehicle and the injury. [Cooper, supra at 1201, 597 N.W.2d 837.]

The order further mandated that all briefs were due by September 20, 1999, one day before the scheduled trial date in the present case. Id. On August 25, 1999, in light of our Supreme Court's order and the potential for it to overrule Fiser and Rogers, defendants filed a motion to adjourn the trial. The trial court denied defendants' motion on September 2, 1999.

On September 20, 1999, this Court denied defendants' interlocutory application for leave to appeal concerning the denial of the motion to adjourn the trial.4 Defendants' subsequent application for leave to appeal this Court's decision to our Supreme Court was denied on September 22, 1999. 461 Mich. 868, 602 N.W.2d 577 (1999). Thus, defendants' efforts to prevent the trial from proceeding based on the law established in Fiser and reaffirmed in Rogers was denied by the trial court, the Court of Appeals, and the Supreme Court.

From September 23, 1999 to October 1, 1999, this matter was tried before a jury. The jury returned a verdict in plaintiffs' favor ascribing thirty-five percent of the fault for the accident to defendants and sixty-five percent of the fault to McGuigan. On October 8, 1999, the trial court entered judgment on the jury's verdict in plaintiffs' favor.

Defendants then filed a motion for JNOV, a new trial, or remittitur. Following a hearing on January 21, 2000, the trial court denied defendants' motion and entered an order consistent with its decision on February 7, 2000. Defendants filed a claim of appeal, the appeal before us now, on February 14, 2000.

However, after the trial court's order denying defendants' motion for JNOV, a new trial, or remittitur and before we had the opportunity to consider and rule on the issues presented in this appeal, on July 18, 2000, our Supreme Court rendered its decision in Robinson, supra.

The Robinson Court, applying a vastly more restricted reading of M.C.L. § 691.1405 than did its predecessors, expressly overruled its prior decisions in Fiser and Rogers. Robinson, supra at 445, 613 N.W.2d 307. The Supreme Court in Robinson opined in pertinent part:

[T]he City of Detroit is entitled to judgment as a matter of law because one cannot reasonably conclude under a narrow reading of the motor vehicle exception to governmental immunity, M.C.L. § 691.1405 ... that plaintiffs' injuries resulted from the operation of the police vehicles. We agree with Fiser v. Ann Arbor, 417 Mich. 461, 339 N.W.2d 413 (1983), that an officer's physical handling of a motor vehicle during a police chase, can constitute "negligent operation... of a motor vehicle" within the motor vehicle exception. However, plaintiffs' injuries did not, as a matter of law, result from the operation of the police cars where the police cars did not hit the fleeing car or physically cause another vehicle or object to hit the vehicle that was being chased or physically force the vehicle off the road or into another vehicle or object. Thus, we overrule Fiser and Rogers v. Detroit, 457 Mich. 125, 579 N.W.2d 840 (1998). Contrary to Rogers, we also hold that an officer's decision to pursue does not constitute the negligent operation of a motor vehicle. [Robinson, supra at 445, 613 N.W.2d 307 (

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