Mallory v. City of Detroit

• Decision Date: 21 November 1989
• Docket Number: Docket No. 99835
• Citation: 181 Mich.App. 121,449 N.W.2d 115
• Parties: Cleo MALLORY, Individually and as Personal Representative of the Estate of Deforest Mallory, Deceased, Frances Mallory, Ceola Jones, Jacqueline Scott, Michael Fletcher and Kenyatta Fletcher, Plaintiffs-Appellants. v. CITY OF DETROIT, a municipal corporation, EMS technicians Richard Frank, Leonard Muss, and John Doe, and Detroit Police Officers Oscar Andary, and Stephen Skinner, jointly and severally, Defendants-Appellees. 181 Mich.App. 121, 449 N.W.2d 115
• Court: Court of Appeal of Michigan — District of US

Page 115

449 N.W.2d 115

Cleo MALLORY, Individually and as Personal Representative of

the Estate of Deforest Mallory, Deceased, Frances Mallory,

Ceola Jones, Jacqueline Scott, Michael Fletcher and Kenyatta

Fletcher, Plaintiffs-Appellants. v. CITY OF DETROIT, a municipal corporation, EMS technicians

Richard Frank, Leonard Muss, and John Doe, and Detroit

Police Officers Oscar Andary, and Stephen Skinner, jointly

and severally, Defendants-Appellees.

Docket No. 99835.

181 Mich.App. 121, 449 N.W.2d 115

Court of Appeals of Michigan.

Submitted Dec. 8, 1988.

Decided Aug. 23, 1989.

Released for Publication Nov. 21, 1989.

[181 MICHAPP 122] Stern & Cohan by Kenneth A. Stern, Southfield, for plaintiffs-appellants.

Donald Pailen, Corp. Counsel, and Laurel [181 MICHAPP 123] F. McGiffert, Asst. Corp. Counsel, Detroit, for defendants-appellees.

Before WAHLS, P.J., and McDONALD and SIMON, ^* JJ.

PER CURIAM.

Plaintiffs appeal as of right the Wayne Circuit Court's order granting defendants' motion for summary disposition based on statutory and governmental immunity and denying plaintiffs' motion for leave to file a fourth-amended complaint.

On January 24, 1984, Deforest Mallory died allegedly as a result of a delay in dispatching an emergency vehicle. Plaintiffs claim that individual EMS technicians failed to respond promptly to an emergency call and failed to effect proper care once they arrived at the scene. The trial court granted summary disposition on the ground that defendants were immune from liability pursuant to M.C.L. Sec. 333.20737; M.S.A. Sec. 14.15(20737) and Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984), reh. den. 421 Mich. 1202 (1985).

We find that the trial court did not err in granting defendants' motion for summary disposition pursuant to MCR 2.116(C)(7), (8), and (10). The individual EMS personnel and defendant City of Detroit are immune from liability under M.C.L. Sec. 333.20737; M.S.A. Sec. 14.15(20737), which provides:

When performing services consistent with the individual's training, acts or omissions of an ambulance attendant, emergency medical technician, emergency medical technician specialist, or advanced emergency medical technician do not impose liability on those individuals in the treatment of a patient when the service is performed outside [181 MICHAPP 124] a hospital. Such acts or omissions also do not impose liability on the authorizing physician or physician's designee, the person providing communications services or lawfully operating or utilizing supportive electronic communications devices, the ambulance operation, the hospital or an officer, member of the staff, nurse, or other employee of the hospital, or the authoritative governmental unit or units. All persons named in this section, and emergency personnel from outside the state, are protected from liability unless the act or omission was the result of gross negligence or wilful misconduct.

Interpreting this statute's predecessor, this Court has found that this type of statute applies to vicarious or derivative liability actions brought against the City of Detroit. Thornhill v. Detroit, 142 Mich.App. 656, 662-663, 369 N.W.2d 871 (1985).

Plaintiffs point out that Sec. 20737 provides for immunity only if defendants are performing services "consistent with the individual's training." Plaintiffs claim that defendants failed to use the skill, care and knowledge ordinarily employed by EMS and other emergency medical technicians in rendering emergency aid in transport and by failing to properly evaluate and administer proper medical treatment as required by state statutes, bylaws, and EMS accreditation rules. Plaintiffs contend that their allegations are sufficient to render Sec. 20737 inapplicable. We disagree.

In interpreting the statute, we apply the following rules of statutory construction.

(1) [W]hen a statute is unambiguous, further construction is to be avoided; (2) if an ambiguity exists, the intent of the Legislature must be given effect; (3) a construction which best accomplishes the statute's purpose is favored; (4) statutes are to be interpreted as a whole and construed so as to [181 MICHAPP 125] give effect to each provision; (5) specific words in a statute are given their ordinary meaning unless a different interpretation is indicated; and (6) respectful consideration is to be given to the construction of a statute used by those charged with its application. [Kubick v. Child & Family Services of Michigan, Inc., 171 Mich.App. 304, 307-308, 429 N.W.2d 881 (1988).]

We find that Sec. 20737 provides immunity for defendants. In construing the statute in its entirety, we hold that the unambiguous language and clear intent of the Legislature is to grant emergency personnel immunity unless their acts or omissions are the result of gross negligence or wilful misconduct. Plaintiffs' complaint essentially avers acts and omissions sounding in negligence. Should we find that plaintiffs' allegations are sufficient to render Sec. 20737 inapplicable, we would be holding that the last sentence of the statute is meaningless and would thereby subvert the intent of the Legislature.

Further, plaintiffs contend that they adequately pled wilful and wanton misconduct and gross negligence sufficient to avoid immunity under Sec. 20737. As noted above, we find that plaintiffs have not stated a claim for wilful and wanton misconduct or gross negligence. Wilful and wanton misconduct requires a showing that the conduct alleged shows an intent to harm or such indifference to whether harm will result as to be the equivalent of a willingness that it result. Burnett v. City of Adrian, 414 Mich. 448, 455, 326 N.W.2d 810 (1982); Higgins v. Detroit Osteopathic Hospital Corp., 154 Mich.App. 752, 761, 398 N.W.2d 520 (1986), lv. den. 428 Mich. 911 (1987). In order to properly allege gross negligence, plaintiffs must plead defendants' subsequent negligence. Gross negligence occurs where a plaintiff's prior negligence puts him in a [181 MICHAPP 126] position of danger and the defendant's subsequent negligence causes plaintiff's injury. Thomason v. Olive Branch Masonic Temple, 156 Mich.App. 736, 744, 401 N.W.2d 911 (1986).

In the instant case, there is no indication that defendants' acts constituted gross negligence or wilful and wanton misconduct. At most, plaintiffs' complaint alleges negligence. There is no evidence to show that defendants intended harm or were so indifferent to whether harm would result as to be the equivalent of a willingness that harm result. Further, there is no allegation of prior negligence by any plaintiff (including the decedent). Allegations that defendants failed to respond promptly to an emergency call and failed to adequately train and hire EMS employees and staff do not constitute properly pled allegations of gross negligence and wilful misconduct.

The trial court did err in granting summary disposition to defendants on the alternate ground of immunity under Ross. Plaintiffs filed their initial complaint in this matter in August, 1984. The Ross decision was released on January 22, 1985. Defendants filed their motion for summary disposition on the ground of governmental immunity on January 29, 1987. In Hyde v. University of Michigan Board of Regents, 426 Mich. 223, 230, 393 N.W.2d 847 (1986), our Supreme Court declared that Ross would apply to all cases commenced after January 22, 1985...