Emily Kincaid v. Robert Croskey ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
CLIFFORD LEE, JR., UNPUBLISHED
April 21, 2015
Plaintiff-Appellee,
v No. 313217
Wayne Circuit Court
ROBERT CROSKEY and WOLPIN COMPANY, LC No. 11-003138-NI
d/b/a TRI-COUNTY BEVERAGE
COMPANY/WAYNE COUNTY,
Defendants-Appellants.
EMILY KINCAID,
Plaintiff-Appellee,
v No. 3132181
Wayne Circuit Court
ROBERT CROSKEY and WOLPIN COMPANY, LC No. 11-004918-NI
d/b/a TRI-COUNTY BEVERAGE
COMPANY/WAYNE COUNTY,
Defendants-Appellants.
Before: BECKERING, P.J., and CAVANAGH and SAAD, JJ.
PER CURIAM.
In Docket No. 313217, defendants, Robert Croskey and Wolpin Company, d/b/a Tri-
County Beverage Company/Wayne County, appeal as on leave granted2 an order denying their
1
The appeals were “consolidated for the efficient administration of the appellate process.” Lee v
Croskey, unpublished order of the Court of Appeals, entered October 10, 2013 (Docket Nos.
313217, 313218).
2
See Lee v Croskey, 495 Mich. 864 (2013).
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motion for summary disposition. In Docket No. 313218, Croskey and Wolpin appeal as on leave
granted the same order. In both cases, we reverse and remand for entry of summary disposition
for defendants.
Defendants argue that plaintiffs’ claims are barred by the firefighters rule codified in
MCL 600.2967(1). We agree.
“This Court reviews de novo a trial court’s decision on a motion for summary
disposition.” Hackel v Macomb Co Comm, 298 Mich. App. 311, 315; 826 NW2d 753 (2012). “In
reviewing a motion under MCR 2.116(C)(10), this Court considers the pleadings, admissions,
affidavits, and other relevant documentary evidence of record in the light most favorable to the
nonmoving party to determine whether any genuine issue of material fact exists to warrant a
trial.” Walsh v Taylor, 263 Mich. App. 618, 621; 689 NW2d 506 (2004). “Summary disposition
is appropriate if there is no genuine issue regarding any material fact and the moving party is
entitled to judgment as a matter of law.” Latham v Barton Malow Co, 480 Mich. 105, 111; 746
NW2d 868 (2008). “A genuine issue of material fact exists when the record, giving the benefit
of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds
might differ.” West v Gen Motors Corp, 469 Mich. 177, 183; 665 NW2d 468 (2003).
Statutory interpretation presents a question of law that is reviewed de novo. In re MCI
Telecom Complaint, 460 Mich. 396, 413; 596 NW2d 164 (1999). “If the language in a statute is
clear and unambiguous, this Court assumes that the Legislature intended its plain meaning, and
the statute must be enforced as written. This Court may read nothing into an unambiguous
statute that is not within the manifest intent of the Legislature as derived from the words of the
statute itself.” Bay City v Bay Co Treasurer, 292 Mich. App. 156, 166-167; 807 NW2d 892
(2011) (quotation marks and citations omitted).
As explained in Boulton v Fenton Twp, 272 Mich. App. 456, 460; 726 NW2d 733 (2006):
The common-law firefighters’ rule was first adopted in Michigan in Kreski
v Modern Wholesale Electric Supply Co, 429 Mich. 347; 415 NW2d 178 (1987).
The rule generally stated that “a fire fighter or police officer may not recover
damages from a private party for negligence in the creation of the reason for the
safety officer’s presence.” Id. at 358 (emphasis added).
The Legislature codified the rule by enacting 1998 PA 389, MCL
600.2965 to 600.2967, effective November 30, 1998. MCL 600.2965 abrogates
the common-law rule.
“Michigan courts recognized the existence of several exceptions to the common-law fireman’s
rule, for example, when a safety officer alleged wrongdoing that rose to the level of wilful,
wanton, or intentional misconduct, or when the alleged wrongdoing occurred after the safety
officer had been called to the scene and was independent of the reason that the safety officer was
called to the scene.” Tull v WTF, Inc, 268 Mich. App. 24, 27; 706 NW2d 439 (2005), citing
Harris-Fields v Syze, 461 Mich. 188, 191-192; 600 NW2d 611 (1999).
The Legislature abolished the common-law fireman’s rule, however, when
it enacted 1998 PA 389. The statute replaced the common-law rule with a
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statutory scheme that generally incorporated the common-law exceptions, but
expanded the circumstances under which a safety officer could recover for
damages sustained while on duty beyond the narrow, common-law rule. See
MCL 600.2965 to 600.2967. [Tull, 268 Mich. App. at 28.]
MCL 600.2967 provides, in relevant part:
(1) Except as provided in section 2966, a firefighter or police officer who
seeks to recover damages for injury or death arising from the normal, inherent,
and foreseeable risks of his or her profession while acting in his or her official
capacity must prove that 1 or more of the following circumstances are present:
(a) An injury or resulting death that is a basis for the cause of action was
caused by a person’s conduct and that conduct is 1 or more of the following:
(i) Grossly negligent.
(ii) Wanton.
(iii) Willful.
(iv) Intentional.
(v) Conduct that results in a conviction, guilty plea, or plea of no contest to
a crime under state or federal law, or a local criminal ordinance that substantially
corresponds to a crime under state law.
(b) The cause of action is a product liability action . . . .
(c) An injury or resulting death that is a basis for the cause of action was
caused by a person’s ordinary negligence and all of the following are true:
(i) The negligent person is not someone whose act or omission resulted in
the firefighter’s or police officer’s presence at the place where the injury
occurred; or the person is someone whose act or omission resulted in the
firefighter’s or police officer’s presence at the place where the injury occurred and
the action is based on an act by that person that occurred after the firefighter or
police officer arrived at the place where the injury occurred.
(ii) The negligent person is not someone from whom the firefighter or
police officer had sought or obtained assistance or is not an owner or tenant of the
property from where the firefighter or police officer sought or obtained assistance.
(iii) The negligent person is not someone who is an owner or tenant of the
property that the firefighter or police officer was on in his or her official capacity;
or the person is someone who is an owner or tenant of the property that the
firefighter or police officer was on in his or her official capacity and the action is
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based on an act by that person that occurred after the firefighter or police officer
arrived at the place where the injury occurred.
(iv) The firefighter or police officer was engaged in 1 or more of the
following:
(A) Operating, or riding in or on, a motor vehicle that is being operated in
conformity with the laws applicable to the general public.
(B) An act involving the legally required or authorized duties of the
profession that did not substantially increase the likelihood of the resulting death
or injury. The court shall not consider the firefighter or police officer to have been
engaged in an act that substantially increased the likelihood of death or injury if
the injury occurred within a highway right-of-way, if there was emergency
lighting activated at the scene, and if the firefighter or police officer was engaged
in emergency medical services, accessing a fire hydrant, traffic control, motorist
assistance, or a traffic stop for a possible violation of law. [MCL 600.2967.]
“In sum, subsection 1 permits a safety officer to recover damages for injuries arising from the
‘normal, inherent, and foreseeable risks’ of the safety professions, provided the injuries arise
from a person’s grossly negligent, wanton, wilful, or intentional conduct (subsection 1[a]), or
from ordinary negligence, as long as other enumerated conditions are satisfied (subsection 1[c]).”
Tull, 268 Mich. App. at 29-30. Subsection 1(b), which permits recovery under product liability
theories under some circumstances, is not pertinent here. Id. at 30 n 3.
Defendants argue that the trial court erred in concluding that plaintiffs could pursue an
ordinary negligence claim. In particular, defendants contend that plaintiffs cannot satisfy the
requirement in MCL 600.2967(1)(c)(iv)(A) that their police car was being operated in
conformity with the laws applicable to the general public. We agree with defendants’ argument.
To recover for ordinary negligence for an injury or death arising from the normal, inherent, and
foreseeable risks of his or her profession3, a safety officer must satisfy all four of the
requirements set forth in MCL 600.2967(1)(c) (permitting recovery where “[a]n injury or
resulting death that is a basis for the cause of action was caused by a person’s ordinary
negligence and all of the following are true: . . .”) (emphasis added). The fourth requirement for
ordinary negligence is that either the police vehicle was being operated in conformity with the
laws applicable to the general public, MCL 600.2967(1)(c)(iv)(A), or the act involved the legally
required or authorized duties of the profession that did not substantially increase the likelihood of
death or injury, MCL 600.2967(1)(c)(iv)(B). Although the trial court’s reasoning was cursory, it
3
Plaintiffs do not dispute that the occurrence of a traffic accident while responding to an
emergency call at a high rate of speed is a normal, inherent, and foreseeable risk of their
profession as police officers. We note that traffic accidents are a normal, inherent, and
foreseeable risk that arises directly from a police officer’s duties, which include responding to
emergency calls. See Woods v City of Warren, 439 Mich. 186, 193; 482 NW2d 696 (1992);
Stehlik v Johnson (On Rehearing), 206 Mich. App. 83, 87-88; 520 NW2d 633 (1994).
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appears the court found a genuine issue of material fact regarding whether plaintiffs’ police
vehicle was being operated in conformity with the laws applicable to the general public because
plaintiff Clifford Lee, Jr., a Detroit police officer, was entitled to exceed the speed limit as he
was proceeding to an armed robbery in progress.
The trial court’s reasoning is flawed. Although plaintiffs’ police vehicle was being
operated in conformity with the law generally, and in conformity with laws applicable to
government emergency vehicles, it was not being operated in conformity with the laws
applicable to the general public. It is unlawful for the general public to exceed the posted speed
limit; a person who fails to obey the speed laws is responsible for a civil infraction. See MCL
257.627(3), 257.628(7), 257.629(6), 257.629b(2). It is undisputed that the vehicle that Lee was
operating, and in which plaintiff Emily Kincaid, also a Detroit police officer, was a passenger,
was being driven in excess of the posted speed limit. Lee admitted that he was traveling at
approximately 55 to 60 miles an hour, in excess of the posted speed limit of 35 miles an hour.
Kincaid also admitted that Lee was traveling over the speed limit. Thus, the vehicle was not
being operated in conformity with the laws applicable to the general public.
It is true that police officers and firefighters may exceed the speed limit when responding
to an emergency call if their vehicle’s siren and emergency lights are activated. See MCL
257.603(2), (3)(c), (4); MCL 257.632. But these provisions apply only to authorized emergency
vehicles. See MCL 257.603(1). In other words, the statutory exception permitting safety
officers to exceed the speed limit in emergencies does not apply to the general public. Therefore,
because the police vehicle that Lee was operating and in which Kincaid was a passenger was not
being operated in conformity with the laws applicable to the general public, plaintiffs have not
satisfied the condition in MCL 600.2967(1)(c)(iv)(A) for pursuing a claim of ordinary
negligence.
Plaintiffs do not contend that they can satisfy the alternative condition set forth in MCL
600.2967(1)(c)(iv)(B), and the trial court did not address this provision. In any event, it is
beyond reasonable dispute that driving 20 to 25 miles an hour in excess of the posted speed limit,
as Lee admitted he was doing, substantially increased the likelihood of death or injury. See
Holloway v Cronk, 76 Mich. App. 577, 583; 257 NW2d 175 (1977) (“An automobile, when
operated at an excessive rate of speed, becomes a dangerous instrumentality capable of inflicting
serious injury or death.”).4 Hence, this alternative condition is unsatisfied. Accordingly,
4
We do not suggest that it was inappropriate for Lee to exceed the speed limit, given that he was
responding to a radio dispatch of an armed robbery in progress, and, as discussed, police officers
are allowed to exceed the speed limit in such circumstances if they activate their sirens and
emergency lights. But the fact remains that, to establish the alternative condition in MCL
600.2967(1)(c)(iv)(B) for avoiding the firefighters rule barring liability for ordinary negligence,
plaintiffs were required to establish that they were engaged in “[a]n act involving the legally
required or authorized duties of the profession that did not substantially increase the likelihood
of the resulting death or injury.” (Emphasis added.) As discussed, it is beyond reasonable
dispute that traveling at speeds far in excess of the posted speed limit substantially increases the
likelihood of death or injury. In short, although police officers are allowed to exceed the speed
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plaintiffs have not established a genuine issue of material fact with respect to MCL
600.2967(1)(c)(iv), which is one of the four required conditions for pursuing an ordinary
negligence claim as an exception to the statutory firefighters rule barring liability. Therefore,
defendants were entitled to summary disposition with respect to plaintiffs’ ordinary negligence
claim.
Next, defendants argue that plaintiffs cannot establish gross negligence or other culpable
conduct under MCL 600.2967(1)(a). Defendants acknowledge that the trial court did not find
that a genuine issue of material fact existed under this provision. Nonetheless, defendants
address this issue to support their contention that the trial court’s error with respect to its analysis
under MCL 600.2967(1)(c) was not harmless. We will address the issue given that it was raised
by the parties below. See Peterman v Dep’t of Natural Resources, 446 Mich. 177, 183; 521
NW2d 499 (1994) (“In any event, assuming, arguendo, that the trial court failed to rule on the
issue, plaintiffs should not be punished for the omission of the trial court.”); Loutts v Loutts, 298
Mich. App. 21, 23-24; 826 NW2d 152 (2012) (“We would have appreciated it if the trial court had
addressed this issue, but because it was raised there and is now being pursued on appeal, it is
preserved for our review.”).
MCL 600.2967(1)(a) permits liability where the injury or death was caused by gross
negligence; wanton, willful, or intentional conduct; or conduct that results in a conviction. There
is no evidence that defendants were convicted of any crimes in connection with this matter. A
defendant’s misconduct is willful if the defendant intended to harm the plaintiff. Odom v Wayne
Co, 482 Mich. 459, 475; 760 NW2d 217 (2008). No evidence exists that defendants intended to
harm plaintiffs. Thus, plaintiffs have not established a material factual dispute regarding
intentional or willful misconduct.
“ ‘Grossly negligent’ means conduct so reckless as to demonstrate a substantial lack of
concern for whether injury results.” MCL 600.2967(3)(a). Wanton misconduct means conduct
or a failure to act that reflects such indifference to whether harm results that it is equivalent to a
willingness that harm results. Odom, 482 Mich. at 475. We conclude that there is no evidence
from which reasonable minds could conclude that defendants were grossly negligent or that they
engaged in wanton misconduct.
Plaintiffs argue that Croskey engaged in texting while driving and that this constitutes
gross negligence. But the record is devoid of evidence that Croskey texted while driving at the
time of the accident. Croskey’s phone records show that on the date of the accident, he sent a
text message at 12:46 p.m. and received a text message at 12:47 p.m.. The exact time of the
accident is unclear. The police report states that the accident occurred at either 12:48 p.m. or
12:55 p.m., and the 911 record indicates that the accident was reported at 12:52 p.m. Croskey
stated that it takes him a minute or two to pull out into traffic and to get his vehicle parallel with
the road. Assuming that the accident occurred at 12:48 p.m., the earlier time indicated on the
limit in emergencies if certain conditions are met, they may file a lawsuit for injuries they sustain
only if the requirements of MCL 600.2967 are satisfied. This Court does not second-guess the
wisdom of the Legislature’s policy decisions. Wurtz v Beecher Metro Dist, 495 Mich. 242, 255;
848 NW2d 121 (2014).
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police report, given that the 911 record shows that the accident was reported at 12:52 p.m., and
assuming that it took Croskey a minute or two to pull onto the road after making his delivery to a
store, this does not establish that he was texting while driving at the time of the accident.
Croskey could have sent the text message at 12:46 p.m. and still had time to pull onto the road
before the accident occurred at 12:48 p.m. Although Croskey’s phone records indicate that he
received a text message at 12:47 p.m., there is no evidence that he read the message at that time.
Croskey testified that he did not text while driving at the time of this accident and that he would
never do so because he knows that it is unsafe and distracting. No eyewitnesses have testified
that they observed Croskey texting while driving. Accordingly, it is a matter of speculation or
conjecture to assert that Croskey was texting while driving. Speculation and conjecture are
insufficient to establish a genuine issue of material fact. Karbel v Comerica Bank, 247 Mich
App 90, 97; 635 NW2d 69 (2001).
Plaintiffs assert that Croskey violated provisions of the Motor Vehicle Code. However,
the rebuttable presumption arising from a statutory violation is one of ordinary negligence, not
gross negligence. Poppen v Tovey, 256 Mich. App. 351, 358; 664 NW2d 269 (2003). Evidence
of ordinary negligence is insufficient to raise a triable issue concerning gross negligence.
Maiden v Rozwood, 461 Mich. 109, 122-123; 597 NW2d 817 (1999); Poppen, 256 Mich. App. at
358. Gross negligence is established only where the defendant’s conduct is substantially more
than negligent. Maiden, 461 Mich. at 122. Therefore, Croskey’s purported violations of the
Motor Vehicle Code do not establish that he was grossly negligent.
It is true that, when viewed in the light most favorable to plaintiffs, the evidence arguably
suggests that Croskey failed to notice or yield to plaintiffs’ oncoming vehicle when Croskey
pulled onto Plymouth Road. However, this evidence establishes, at most, ordinary negligence
rather than gross negligence. There are no facts suggesting that Croskey acted with “an
affirmatively reckless state of mind with intent to depart from careful driving.” Brooks v Haack,
374 Mich. 261, 265; 132 NW2d 13 (1965) (quotation marks and citations omitted). See id. at
266-267 (finding no evidence of culpable conduct greater than ordinary negligence in a single
car accident where the defendant’s vehicle left the road after apparently speeding and losing
control); Romine v Cleveland, 46 Mich. App. 4, 7-8; 207 NW2d 438 (1973) (upholding a directed
verdict because the defendant’s attempt to pass another vehicle traveling at 45 to 50 miles an
hour in a fog at night did not comprise gross negligence or willful and wanton misconduct).
Croskey’s conduct was not “so reckless as to demonstrate a substantial lack of concern for
whether injury results.” MCL 600.2967(3)(a). Accordingly, plaintiffs have failed to establish a
genuine issue of material fact concerning gross negligence or other culpable conduct under MCL
600.2967(1)(a) as an exception to the statutory firefighter’s rule barring liability.
Reversed and remanded for entry of summary disposition for defendants. We do not
retain jurisdiction.
/s/ Jane M. Beckering
/s/ Mark J. Cavanagh
/s/ Henry William Saad
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