McMillian v. Vliet

• Decision Date: 24 September 1985
• Docket Number: Docket No. 70484
• Parties: Beatrice McMILLIAN, Plaintiff-Appellant, v. James VLIET, Defendant-Appellee. 422 Mich. 570, 374 N.W.2d 679
• Court: Michigan Supreme Court

Page 679

374 N.W.2d 679

Beatrice McMILLIAN, Plaintiff-Appellant, v. James VLIET, Defendant-Appellee.

Docket No. 70484.

422 Mich. 570, 374 N.W.2d 679

Supreme Court of Michigan.

Argued June 4, 1985.

Decided Sept. 24, 1985.

Libner, Van Leuven & Kortering, P.C. by Vernon D. Kortering, Muskegon, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Thomas L. Casey, Mark E. Blumer, Asst. Attys. Gen., Lansing, for defendant-appellee.

PER CURIAM.

This is a wrongful death action initiated to recover damages for the death of Arthur McMillian, which resulted from the accidental discharge of State Police Trooper James Vliet's revolver while Vliet was in the process of arresting McMillian following a high-speed automobile chase. We are asked in this case to review the factual finding of the trial judge, after a two-day bench trial, that, notwithstanding the negligence of the defendant, the decedent's own conduct was the sole proximate cause of his death. Our review leaves us convinced that the trial court's finding is clearly erroneous. ¹

I

On July 16, 1976, at approximately 10:15 a.m., while alone on routine patrol in a marked Michigan State Police patrol car, officer James Vliet observed a vehicle being driven by the deceased, Arthur McMillian, and occupied in the front passenger seat by Michael Scott. When first observed, the car was traveling southbound on U.S. 131 in Grand Haven at what appeared to be an excessive rate of speed; however, when Vliet began following it, the driver slowed to a speed five to ten miles per hour below the posted speed limit. After following for a short distance, Vliet decided to stop the car to talk to the driver. He switched on his overhead flashing lights and signaled the driver to pull over. The automobile pulled into a parking lot and stopped, and officer Vliet followed and got out of his patrol car. However, when he reached the driver's door, McMillian suddenly sped away. Vliet got back into his car, and a chase ensued at speeds in excess of eighty miles per hour. On at least two occasions during the chase, when Trooper Vliet attempted to pull up next to the other vehicle, McMillian swerved at the patrol car, colliding with it on at least one occasion and forcing the patrol car into the lane of oncoming traffic on another.

McMillian lost control of his car while attempting to negotiate a turn, and the car jumped a curb and struck and came to rest against a utility pole guidewire. As Vliet stopped approximately eight feet behind the stalled Ford, both the driver and passenger doors of the other vehicle were opened. Vliet got out of his car and drew and cocked his service revolver. The passenger, Michael Scott, got out and took a few steps, but complied with the officer's commands and stopped and placed his hands on the top of the car.

The driver, McMillian, had looked out of the open driver's door toward Vliet, but then disappeared from sight before he emerged from the passenger door. McMillian disregarded the officer's commands and took several strides in a manner which led Vliet to believe he was intent on running. Vliet then stepped forward, placed his left hand on McMillian's left shoulder, forced McMillian to the car and, when McMillian continued to resist, used the heel of his right hand at McMillian's upper back to push him down over the trunk. The cocked revolver was still in Vliet's right hand, but, according to the officer and a witness, its barrel was pointed up in the air. However, as McMillian was bent over, he suddenly swung his left elbow around and backward striking Vliet, and, turning his head to the left to face the officer, he stood up. This movement by McMillian placed the left side of his head in contact with the muzzle of Vliet's gun and the impact jarred Vliet and caused the gun to discharge. The bullet struck McMillian in the head rendering him immediately unconscious. He died several days later.

Plaintiff, Beatrice McMillian, administratrix of the estate and mother of the deceased, brought this action against Trooper Vliet; alleging that he had acted negligently in the use of his handgun and that his negligence was the proximate cause of the decedent's injury. Trooper Vliet denied negligence on his part and alleged that McMillian's death was proximately caused by his own negligence and reckless, wanton and willful conduct.

After a full trial in the Ottawa Circuit Court, Judge Calvin L. Bosman, sitting without a jury, issued an opinion. In resolving the negligence questions presented, Judge Bosman found that Officer Vliet's initial conduct of drawing and cocking the revolver was reasonable in light of the circumstances, which indicated that McMillian was desperate and possibly armed. However, his failure to uncock his gun after it became obvious that McMillian did not have a weapon in his hands was found to be negligent.

"After McMillian exited his vehicle, his hands were in view of Vliet and it became obvious that he did not have a weapon in his hands. There no longer continued the urgency for having a cocked gun. A cocked gun under those circumstances is considerably more dangerous than one which is drawn and remains uncocked. There is a much greater danger of accidental discharge with a cocked gun and especially if the use of physical force to subdue an unarmed person is necessary. This Court believes that holding a cocked revolver is something a reasonably prudent police officer would not do because of the risk involved. This risk involves the accidental discharge when the gun is intentionally or unintentionally pointed at some person."

Judge Bosman absolved the defendant of liability by finding that McMillian's own "wilful, wanton and reckless conduct" in making a "sudden, violent and hostile act," by turning and lifting his own body into the line of fire while simultaneously striking Officer Vliet with his elbow, was the proximate cause of his own injuries.

"Vliet, however, was careful in spite of the quickness and forcefulness of his action to keep the gun pointed up so that at no time was it pointed by Vliet at McMillian or anyone else. It was not until McMillian in a sudden, violent, and hostile act brought his body up, turning it around while swinging his left elbow in Vliet and placing his head in a position so that the lower left side of his head was against the muzzle of the gun that the gun was pointed at him. The direction of the gun was not moved by Vliet. It was McMillian's action that placed his head against the gun. McMillian had seen that Vliet was a police officer. He saw that Vliet carried his revolver in his right hand. When Vliet put his left hand on McMillian's left shoulder and directed him around and forced him down by pressure in the...