Robinson v. City of Detroit, Docket No. 176421

• Decision Date: 01 August 1997
• Docket Number: Docket No. 176421
• Citation: 571 N.W.2d 34,225 Mich.App. 14
• Parties: . Debra ROBINSON, Personal Representative of the Estate of Courtney Henderson, deceased, Plaintiff-Appellant/Cross-Appellee, v. CITY OF DETROIT, Craig Kailimai, and Michael Cily, Defendants/Third-Party Appellees, Cross-Appellants, and Howard Linden, Personal Representative of the Estate of Marcelle Blakeney, deceased, Third-Party Defendant-Appellee. Court of Appeals of Michigan
• Court: Court of Appeal of Michigan — District of US

Page 34

571 N.W.2d 34

225 Mich.App. 14

In the Matter of the Estate of Courtney Henderson, deceased.

Debra ROBINSON, Personal Representative of the Estate of Courtney Henderson, deceased, Plaintiff-Appellant/Cross-Appellee, v. CITY OF DETROIT, Craig Kailimai, and Michael Cily, Defendants/Third-Party Appellees, Cross-Appellants, and Howard Linden, Personal Representative of the Estate of

Marcelle Blakeney, deceased, Third-Party Defendant-Appellee.

Docket No. 176421.

Court of Appeals of Michigan.

Submitted May 8, 1996, at Detroit.

Decided Aug. 1, 1997, at 9:05 a.m.

Released for Publication Nov. 6, 1997.

Pearlman and Pianin by Michael Pianin and Sheryl R. Lederman, Southfield, for Plaintiff-Appellant/Cross-Appellee.

Plunkett & Cooney, P.C. by Mary Massaron Ross and Laurel F. McGiffert, Detroit, for Defendants/Third-Party Appellees, Cross-Appellants.

Before WAHLS, P.J., and HOOD, JANSEN, NEFF, SAAD, HOEKSTRA and MARKEY, JJ.

SAAD, Judge.

I Nature of the Case

This case raises the difficult question whether a voluntary passenger in a vehicle fleeing from the police may sue the police for injuries sustained in an accident during the chase. Whether such a suit may proceed depends upon whether the police owe a legal duty to the passenger in a fleeing vehicle. In related "police chase" cases, our courts have held that there is no duty owed to a fleeing suspect on the public policy ground that a wrongdoer ought not to be compensated for his own wrongdoing. Conversely, with regard to "innocent bystanders" (such as pedestrians or other motorists), our courts have held that the police owe a duty to this class of citizens to exercise some restraint and care in the chase.

In police chase, civil liability cases, there seems to be no optimal judicial solution to the perplexing question of how to simultaneously protect the public from (1) victimization by suspects who flee the scene of the crime and (2) accidents that may result from the chase to apprehend the criminal suspect. To impose liability upon the police for accidents attendant to the chase may have an undesirable chilling effect upon law enforcement to the detriment of public safety. Yet, to refrain from imposing civil liability may expose innocent citizens to an increased risk of harm from accidents. This Hobson's choice, perhaps, explains our Court's call for legislative action ¹ and self-criticism ² in this puzzling arena.

With these important public policy interests in mind, we are here called upon to decide whether a voluntary passenger ³ in a fleeing vehicle should be treated as a fleeing suspect, to whom no legal duty is owed, or as an innocent bystander, to whom a legal duty is owed.

II Facts

On July 23, 1990, police officer Craig Kailimai and his partner noticed a vehicle weaving from lane to lane and decided to stop the vehicle. However, when Kailimai activated the lights on the police car, the driver of the vehicle made a quick right turn. Kailimai then turned on the siren and began to pursue the vehicle. The officers drove next to the vehicle, observed that there were both a driver and a passenger in the vehicle, and motioned to the driver to pull over. Instead, the driver accelerated, and the police continued their pursuit. During the chase, the driver disregarded a red light and drove north on the southbound side of the street. The fleeing vehicle then collided head-on with a third vehicle and the passenger in the fleeing vehicle was killed. The officers later determined that the fleeing vehicle was stolen.

Plaintiff, as personal representative of the estate of the deceased passenger, filed a complaint against the City of Detroit and the police officers involved in the pursuit. Plaintiff alleged that the officers were negligent or grossly negligent in pursuing a vehicle through a residential area at a high rate of speed. All defendants filed a motion for summary disposition pursuant to MCR 2.116(C)(7), (8), and (10), asserting, among other things, that defendants did not owe a duty to plaintiff's decedent. Plaintiff responded, claiming that defendants owed a duty to plaintiff's decedent because the decedent was merely a passenger and not the wrongdoer in the fleeing vehicle.

The trial court granted defendants' motion for summary disposition on two grounds, in relevant part finding plaintiff's duty argument unpersuasive. The court relied upon Fiser v. Ann Arbor, 417 Mich. 461, 339 N.W.2d 413 (1983), reasoning that the officers did not owe a duty to plaintiff's decedent because such a duty "would require the police in making decisions whether to pursue or not, to make an analysis of precisely who was in the car while the car is fleeing and, even more difficult, analyze the role of the persons in the car." Plaintiff now appeals, asserting that defendants (city and officers) did owe plaintiff's decedent a duty because, as a passenger, he was an "innocent bystander" rather than a fleeing driver.

III Analysis

It is well established in Michigan that officers owe no duty to the fleeing driver of a motor vehicle; as a matter of public policy, fleeing drivers may not recover damages from the police for personal injuries occasioned by the driver's wrongful conduct. Jackson v. Oliver, 204 Mich.App. 122, 124, 514 N.W.2d 195 (1994); Cooper v. Wade, 218 Mich.App. 649, 656, 554 N.W.2d 919 (1996). On the other hand, our Supreme Court has imposed civil liability upon the police where innocent bystanders are injured as a result of the chase. Fiser, supra. But see Ewing v. Detroit (On Remand), 214 Mich.App. 495, 543 N.W.2d 1 (1995); Frohman v. Detroit, 181 Mich.App. 400, 450 N.W.2d 59 (1989) (both criticizing Fiser ).

Do the police owe a duty to a passenger in a fleeing vehicle? The question is, in essence, whether a voluntary passenger is to be treated as a fleeing driver--who may not sue (Jackson, supra at 124, 514 N.W.2d 195)--or as an innocent bystander--who may sue in tort for personal injuries (Fiser, supra at 473, 339 N.W.2d 413). Pursuant to Administrative Order No. 1996-4, this special panel was convened to resolve the conflict on this issue between Cooper, supra (which recognized a duty to passengers), and the prior opinion in this case, Robinson v. Detroit (On Rehearing), 563 N.W.2d 689 (1996), vacated 563 N.W.2d 689 (1996), a decision which, but for Cooper, would decline to recognize such a duty.

With a goal of protecting the "innocent public" from accidents due to high-speed chases, our Court in Cooper reads Fiser broadly and therefore treats passengers as akin to innocent bystanders--a class to whom a legal duty is owed. Cooper, supra at 656, 554 N.W.2d 919. With the same goal of protecting the innocent public, our Court in Robinson reads Fiser narrowly and Jackson broadly, and would instead exclude passengers from the class of the public to whom a duty is owed. In other words, Cooper holds there is a duty of care to passengers in cars operated by fleeing drivers; Robinson would hold, absent its obligation to follow Cooper, there is no duty.

We begin our analysis with a review of the relevant statutes. M.C.L. § 257.603; M.S.A. § 9.2303 provides in relevant part:

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

* * * * * *

(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.

M.C.L. § 257.632; M.S.A. § 9.2332 provides:

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.... This exemption shall apply only when the driver of the vehicle while in motion sounds an audible signal by bell, siren or exhaust whistle as may be reasonably necessary or when the vehicle is equipped with at least 1 lighted lamp displaying a flashing, oscillating or rotating red or blue light visible under normal atmospheric conditions from a distance of 500 feet to the front of such vehicles, unless the nature of the mission requires that a law enforcement officer travel without giving warning to suspected law violators. This exemption shall not however protect the driver of the vehicle from the consequences of a reckless disregard of the safety of others.

These statutes ("chase" statutes) contemplate, if not sanction, high-speed chases, yet caution against reckless disregard for the safety of others. Indeed, we have held that these chase statutes "require due care for life and property and freedom from reckless disregard of the safety of others." Marion v. Flint, 71 Mich.App. 447, 450, 248 N.W.2d 580 (1976) (concluding that there the "officers evidenced a proper regard for their duty and proper vigilance for the safety of innocent third persons").

While the chase statutes mandate that public safety must be considered, they say nothing to suggest that the fleeing vehicle or anyone in it is in the class of persons to be protected by the statutes. Thus, the term "others" most logically refers to other motorists and pedestrians, not to participants in the chase. See Day v. Willis, 897 P.2d 78, 81 (Alas. 1995) (noting that similar statutes "focus on the safety of innocent third parties"); Day v. State, 882 P.2d 1150, 1154 (Utah App., 1994) ("the clear language of [a similar] statute imposes on a highway patrol trooper who is pursuing a suspected violator of the law a duty of due care toward those members of the public who are using the highway during the high-speed chase and whose vehicles come within a reasonable proximity to the speeding vehicles"). But see Chambers v. City of Lancaster, 843 S.W.2d 143, 148 (Tex.App., 1992), aff'd. in part and rev'd in part 883 S.W.2d 650 (Tex., 1994) ("The duty of the police is to drive with due regard for the safety of 'all...