Fiser v. City of Ann Arbor

• Citation: 339 N.W.2d 413,417 Mich. 461
• Decision Date: 19 October 1983
• Docket Number: Docket No. 66951,No. 1,1
• Parties: Ronald FISER, Plaintiff-Appellant, v. CITY OF ANN ARBOR, David L. Miller, Donald Terry, Walter Lunsford, Defendants-Appellees, and Esther Rupas, Nicholas Rupas, and Michael L. Lehman, Defendants. Calendar
• Court: Michigan Supreme Court

Page 413

339 N.W.2d 413

417 Mich. 461

Ronald FISER, Plaintiff-Appellant, v. CITY OF ANN ARBOR, David L. Miller, Donald Terry, Walter Lunsford, Defendants-Appellees and Esther Rupas, Nicholas Rupas, and Michael L. Lehman, Defendants.

Docket No. 66951.

Calendar No. 1.

Supreme Court of Michigan.

Argued March 8, 1983.

Decided Oct. 19, 1983.

Erwin A. Salisbury, Ann Arbor, for plaintiff-appellant.

John K. Van Loon, Chief Asst. City Atty., Ann Arbor, for defendants-appellees.

Burton R. Shifman, Mich. Ass'n of Municipal Attys., Southfield, on brief as amicus curiae, on behalf of defendants-appellees.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., George H. Weller, Asst. Atty. Gen., Lansing, on brief of amicus curiae Atty. Gen. on the question of immunity for government employees.

Garlington & Sluiter by Jack R. Sluiter, Wyoming Deputy City Atty., Wyoming, for amicus curiae, City of Wyoming.

KAVANAGH, Justice.

In this case we are asked to consider the liability of police officers and their municipal employer for conduct involved in the high-speed pursuit of a traffic violator which resulted in severe injuries to the plaintiff.

Plaintiff, Ronald Fiser, appeals the entry of summary judgment for defendants City of Ann Arbor and Ann Arbor police officers David L. Miller, Donald Terry, and Walter Lunsford. Plaintiff seeks damages for injuries sustained in an automobile collision involving his car and a car driven by Michael Lehman, which was being chased by an Ann Arbor police car driven by defendant Lunsford at the time of the accident. Plaintiff alleges that his injuries were caused in part by the negligence of the police officers.

In the early morning hours of October 19, 1975, plaintiff was driving his automobile south on South Main Street in Ann Arbor. At the same time, an automobile driven by Michael Lehman was proceeding east on Madison Street toward the intersection of Madison and South Main. Lehman was being pursued by a fully marked Ann Arbor police car with activated emergency sirens and overhead oscillating lights. Traveling at a high speed, Lehman disregarded the flashing red light at the intersection, entered the intersection without stopping, and struck plaintiff's car. Plaintiff was severely injured.

Lehman's collision with plaintiff's vehicle terminated an automobile chase in which all of the defendant police officers had been involved. Lehman was first observed by defendants Miller and Terry when he failed to stop for a flashing stop signal. The officers, on duty in a fully marked Ann Arbor police car, immediately signaled Lehman to stop. When Lehman ignored this signal, defendant Miller, the driver of the police car, activated the overhead emergency lights and began to pursue Lehman. A high-speed chase ensued through residential and business areas with the vehicles reaching speeds of 110 miles per hour and the drivers disregarding traffic signals. At some point in the pursuit, Lehman lost control of his vehicle, and, after being struck by the police car, Lehman's car came to a stop. As Officer Terry left the police car to approach Lehman, Lehman sped away again, nearly running down Officer Terry.

Officer Miller continued to pursue Lehman's vehicle alone. Miller followed Lehman the wrong way down a one-way street and shortly thereafter lost track of the Lehman car. About two minutes later, Sergeant Lunsford, who was also operating a fully marked Ann Arbor police car and who had received a radio report of the high-speed chase, the collision involving Officer Terry, and a description of the Lehman vehicle and its license number, spotted Lehman's car and began pursuit with his emergency lights and siren activated. Lunsford pursued Lehman for approximately six blocks at a maximum speed of about 55 miles per hour in a 25 miles per hour zone. Approaching the intersection of Madison and South Main, Lunsford observed Lehman unsuccessfully attempt to brake before accelerating to get through the intersection. In accelerating, Lehman struck the vehicle driven by plaintiff broadside.

The trial court reviewed the affidavits of the police officers, the allegations of plaintiff's amended complaint, and testimony given by Sergeant Lunsford at the hearing on the defendants' motion for summary judgment, and granted the City of Ann Arbor and Officers Miller, Terry, and Lunsford summary judgment. In a split decision, the Court of Appeals, 107 Mich.App. 367, 309 N.W.2d 552, affirmed the judgment of the circuit court. For the reasons stated below, we reverse the summary judgment rendered in favor of the City of Ann Arbor, Officer Miller, and Sergeant Lunsford.

The defendants argue that the City of Ann Arbor and the police officers involved are immune from any tort liability arising out of the accident. Defendants rely on M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107):

"Sec. 7. Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed."

However, the Legislature has provided an exception from governmental immunity for injuries resulting from the negligent operation of a government-owned vehicle by an officer of a governmental agency, M.C.L. Sec. 691.1405; M.S.A. Sec. 3.996(105):

"Sec. 5. Governmental agencies shall be liable for bodily injury and property damage resulting from the negligent operation by any officer, agent, or employee of the governmental agency, of a motor vehicle of which the governmental agency is owner, as defined in Act No. 300 of the Public Acts of 1949, as amended, being sections 257.1 to 257.923 of the Compiled Laws of 1948."

Therefore, if the pursuit ¹ of Michael Lehman constituted negligent operation of the police vehicles, defendants Miller, Lunsford, and the City of Ann Arbor are not immune from tort liability. We affirm the circuit court's grant of summary judgment in favor of Officer Terry because he did not operate either of the police vehicles involved in the pursuit. ²

In a negligence action a judgment for the defendant can properly be made only upon a determination a) that the defendant did act as a reasonably prudent man would have acted under the same or similar circumstances, i.e., that the defendant did not violate the standard of care owed to the plaintiff, b) that the plaintiff suffered no injury, c) that the defendant's negligence did not cause the plaintiff's injury, or d) that the injury of the plaintiff was too insignificantly connected to or too remotely affected by the defendant's negligence. For a proper grant of summary judgment for the defendant, a trial judge must rule that all reasonable men would agree on the conclusion of a), b), c), or d). Davis v. Thornton, 384 Mich. 138, 142, 180 N.W.2d 11 (1970).

In determining whether the trial court properly granted summary judgment for the defendants in this case, we must review the reasonableness of the officers' actions and the question whether these actions could have been a proximate cause of plaintiff's injuries, and decide whether all reasonable men would agree with the conclusions. Plaintiff's injuries are not in question.

In McKay v. Hargis, 351 Mich. 409, 418, 88 N.W.2d 456 (1958), the Court set out the standard by which to determine a claim of negligence on the part of a police officer. The officer's conduct should be compared to "that care which a reasonably prudent man would exercise in the discharge of official duties of like nature under like circumstances".

The defendants claim that the duty they owe to the public in regard to the operation of police vehicles is governed by specific legislation pertaining to authorized emergency vehicles. ³ M.C.L. Sec. 257.603; M.S.A. Sec. 9.2303 provides in part:

"(b) The driver of an authorized emergency vehicle when responding to an emergency call, but not while returning from an emergency call, may exercise the privileges set forth in this section, subject to the conditions of this section.

"(c) The driver of an authorized emergency vehicle may:

(1) Park or stand, irrespective of the provisions of this act.

(2) Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation.

(3) Exceed the prima facie speed limits so long as he does not endanger life or property.

(4) Disregard regulations governing direction of movement or turning in specified direction.

"(d) The exemptions granted in this section to an authorized emergency vehicle shall apply only when the driver of the vehicle while in motion sounds an audible signal by bell, siren, air horn, or exhaust whistle as may be reasonably necessary except as provided in subsection (e), and when the vehicle is equipped with at least 1 lighted lamp displaying a flashing, oscillating, or rotating red or blue light". (Emphasis added.)

M.C.L. Sec. 257.632; M.S.A. Sec. 9.2332 states:

"The speed limitation set forth in this chapter shall not apply to vehicles when operated with due regard for safety under the direction of the police when traveling in emergencies or in the chase or apprehension of violators of the law or of persons charged with or suspected of a violation, nor to fire department or fire patrol vehicles when traveling in response to a fire alarm, nor to public or private ambulances when traveling in emergencies * * *. This exemption shall not however protect the driver of the vehicle from the consequences of a reckless disregard of the safety of others." (Emphasis added.)

The defendants allege that Officer Miller and Sergeant Lunsford were operating their vehicles within the terms of the statutes, and that therefore they cannot be held to have been negligent.

In order for M.C.L. Sec....