McAtee v. Guthrie

• Decision Date: 07 March 1990
• Docket Number: Docket Nos. 106696,109394 and 113204
• Citation: McAtee v. Guthrie, 451 N.W.2d 551, 182 Mich.App. 215 (Mich. App. 1990)
• Parties: Jill McATEE, Plaintiff-Appellee, v. Bruce GUTHRIE, Defendant-Appellant, and Oakland Hills Country Club, Defendant. Jill McATEE, Plaintiff-Appellant-Cross-Appellee, v. Bruce GUTHRIE, Defendant-Appellee, and Oakland Hills Country Club, Defendant-Appellee-Cross-Appellant. 182 Mich.App. 215, 451 N.W.2d 551
• Court: Court of Appeal of Michigan

Page 551

451 N.W.2d 551

Jill McATEE, Plaintiff-Appellee, v. Bruce GUTHRIE, Defendant-Appellant, and Oakland Hills Country Club, Defendant.

Jill McATEE, Plaintiff-Appellant-Cross-Appellee, v. Bruce GUTHRIE, Defendant-Appellee, and Oakland Hills Country Club,

Defendant-Appellee-Cross-Appellant.

Docket Nos. 106696, 109394 and 113204.

182 Mich.App. 215, 451 N.W.2d 551

Court of Appeals of Michigan.

Submitted Oct. 18, 1989.

Decided Nov. 15, 1989.

Released for Publication March 7, 1990.

[182 MICHAPP 217] Raymond L. Krell, P.C. by Raymond L. Krell and Derek A. Hurt, Detroit, for Jill McAtee.

Romain, Donofrio, Kuck & Egerer, P.C. by Claude Romain and John C. Brennan, Southfield, for Bruce Guthrie.

Siemion, Huckabay, Bodary, Padilla & Morganti, P.C. by Raymond W. Morganti, Detroit, for Oakland Hills Country Club.

Before MAHER, P.J., and MARILYN J. KELLY and DEMING, ^* JJ.

PER CURIAM.

This action involves multiple appeals from a jury verdict of $27,000 in favor of plaintiff against defendants Bruce Guthrie and Oakland Hills Country Club. A judgment notwithstanding the verdict was granted in favor of Oakland Hills following trial.

On August 7 and 8, 1984, defendant Guthrie attended a business-related golf outing in Benton Harbor, Michigan, along with seven other individuals. The group traveled in a motor home leased by Guthrie, who stocked it with several half gallons of liquor, as well as beer and soft drinks. The men returned to Oakland Hills, their rendezvous point, between 8:00 and 9:00 p.m. on August 8, 1984.

Thereafter, Guthrie, who was admittedly intoxicated when he arrived, and a few others went into the men's grill at Oakland Hills where they sat and talked for awhile. The bar tab indicated the group ordered seven alcoholic and three nonalcoholic drinks.

Guthrie left in the motor home about 9:00 p.m. and stopped at a nearby service station. The station manager noticed the driver stumble and stagger [182 MICHAPP 218] around the vehicle and contacted the police because he felt the driver should not be on the road. Plaintiff, a nearby Bloomfield Township patrol officer, heard the call and watched for the motor home. When she saw it, she observed it make an improper turn and go off the road several times. After stopping the vehicle, plaintiff asked Guthrie for his driver's license but he was uncooperative and verbally abusive. After Guthrie continued to be uncooperative and refused to leave the motor home as requested, plaintiff placed him under arrest. When plaintiff and her partner attempted to handcuff Guthrie, he resisted and a struggle ensued during which plaintiff's nose was struck by Guthrie's knee. Guthrie continued to resist after being handcuffed and was later described as loud, abusive and profane during processing at the station.

Plaintiff, who had previously undergone successful surgery on her nose in September, 1983, for breathing and drainage difficulties, began experiencing pain and further breathing difficulties after the incident. After three separate surgeries, plaintiff still experienced breathing difficulties and her right nostril was higher than the left.

On September 27, 1985, plaintiff filed an action against Guthrie alleging her injuries were caused by his wanton and reckless conduct. Plaintiff later amended her complaint to add Oakland Hills as a party under the dramshop act. Prior to trial, the court denied Guthrie's motion for summary disposition under the "fireman's rule." A similar directed verdict motion was also denied at trial. Guthrie appeals each of these rulings.

At the conclusion of trial, plaintiff received a jury verdict of $27,000 against both defendants, however, the trial court granted a judgment notwithstanding the verdict in favor of Oakland Hills. [182 MICHAPP 219] Plaintiff filed a motion for new trial challenging the judgment notwithstanding the verdict in favor of Oakland Hills and various other trial-related issues, which motion was denied by the trial court. Plaintiff appeals as of right from the denial of this motion. Both plaintiff and Oakland Hills, by way of cross appeal, also allege the trial court erred in denying their request for mediation sanctions.

We will first address defendant Guthrie's claim that the trial court erred in denying his motions for summary disposition and directed verdict, based upon the "fireman's rule" adopted by our Supreme Court in Kreski v. Modern Wholesale Electric Supply Co., 429 Mich. 347, 415 N.W.2d 178 (1987). Kreski involved two separate premises liability actions brought by safety officers against the owners and occupiers of the premises where they were injured. The Kreski Court, noting that fire fighters and police officers are hired, trained, and compensated by the public to deal with dangerous, but inevitable, situations generally caused by negligence, stated at p. 372, 415 N.W.2d 178 that

as a matter of public policy, we hold that fire fighters or police officers may not recover for injuries occasioned by the negligence which caused their presence on the premises in their professional capacities. This includes injuries arising from the normal, inherent, and foreseeable risks of the chosen profession.

However, the Court indicated it was not attempting to delineate the precise parameters of the rule, noting that several exceptions involving factual situations not presented there have developed in other states employing a fireman's rule. Id. at 370, 415 N.W.2d 178. As an example, the Court specifically noted that neither case before it involved allegations of [182 MICHAPP 220] negligence rising to the level of wilful, wanton, or intentional misconduct. Id. at 371, 415 N.W.2d 178.

In a recent case, a panel of this Court held that the fireman's rule did not preclude an action by an injured police officer against the estate of a barricaded gunman who intentionally shot and wounded the officer. Rozenboom v. Proper, 177 Mich.App. 49, 57, 441 N.W.2d 11 (1989). In so holding, the Court agreed with the following remarks from Berko v. Freda, 93 N.J. 81, 90, 459 A.2d 663, 667-668 (1983):

[T]he public policy underlying the "fireman's rule" simply does not extend to intentional abuse directed specifically at a police officer. "To permit this would be to countenance unlimited violence directed at the policeman in the course of most routine duties. Certainly the policeman and his employer should have some private recourse for injuries so blatantly and criminally inflicted" Krueger v City of Anaheim [130 Cal.App.3d 166, 170; 181 Cal.Rptr. 631, 634 (1982) ]. [Rozenboom, supra 177 Mich.App. at 57, 441 N.W.2d 11.]

We find the above rationale to be equally applicable to the case at hand. Both the deposition testimony at the time of Guthrie's motion for summary disposition and the evidence produced at trial indicated plaintiff's injuries were caused by Guthrie's wilful and wanton, if not intentional, misconduct in resisting arrest. Thus, he should not be permitted to receive the benefit of the fireman's rule to shield him from civil liability for his actions. Rozenboom, supra at 58, 441 N.W.2d 11. Accordingly, the trial court did not err in denying Guthrie's motions for summary disposition and directed verdict.

We next address plaintiff's claim that the trial court erred in granting a judgment notwithstanding the verdict in favor of Oakland Hills. When [182 MICHAPP 221] reviewing a motion for judgment notwithstanding the verdict, this Court views the evidence and all legitimate inferences that can be drawn from the evidence in a light most favorable to the nonmoving party. Coy v. Richard's Industries, Inc., 170 Mich.App. 665, 669, 428 N.W.2d 734 (1988), lv. den. 432 Mich. 856 (1989). If reasonable jurors could honestly have reached different conclusions, the motion should have been denied. As long as reasonable jurors could have disagreed, neither the trial court nor this Court has the authority to substitute its judgment for that of the jury. Id.

Plaintiff's action against Oakland Hills was brought under the dramshop act, M.C.L. Sec. 436.22; M.S.A. Sec. 18.993. In order to prevail, plaintiff was required to prove that defendant or its agent served intoxicating liquor to Guthrie. McKnight v. Carter, 144 Mich.App. 623, 629, 376 N.W.2d 170 (1985), lv. den. 424 Mich. 859 (1985). In granting Oakland Hills' motion, the trial court concluded there was no competent evidence that...