Bokor v. City of Detroit

178 Mich. App. 268 (1989) 443 N.W.2d 399

BOKOR
v.
CITY OF DETROIT

Docket No. 100916.

Michigan Court of Appeals.

Decided March 10, 1989.

James C. Thomas, P.C. (by James C. Thomas), for plaintiffs.

Donald Pailen, Corporation Counsel, William L. Woodard, Supervising Assistant Corporation Counsel, and Joanne D. Stafford, Assistant Corporation Counsel, for defendants.

Before: WAHLS, P.J., and McDONALD and C.W. SIMON, JR.,^[*] JJ.

PER CURIAM.

Defendant cross-appellant City of Detroit appeals by leave granted from a February 18, 1987, order granting the city partial summary disposition in this wrongful death action. We reverse.

This suit arises out of the November 2, 1982, death of plaintiffs' decedent. On April 17, 1982, the decedent, who resided in the City of Detroit, began experiencing difficulty breathing. 911, Emergency Medical Services, was contacted and stated that an EMS unit would be dispatched to the residence forthwith. Approximately twenty-five to thirty minutes after the request for EMS assistance, no EMS unit had yet arrived. Decedent's son therefore transported decedent to the hospital. Approximately three minutes before reaching the hospital, the decedent suffered respiratory arrest. Although the decedent was resuscitated by emergency room personnel, she remained in a coma until her death on November 2, 1982.

Thereafter, plaintiffs commenced the instant action against the City of Detroit, its EMS dispatcher and an unknown 911 operator. Plaintiffs alleged that defendants committed gross negligence, reckless or wilful and wanton acts or omissions which might have reasonably led to bodily harm or death by failing to dispatch an EMS unit to the decedent's residence as quickly as reasonably possible in order to administer first aid to the decedent and to transport her to a hospital. Plaintiffs further alleged the City of Detroit was vicariously liable for the torts of its employees, the EMS dispatcher and 911 operator.

The city moved for summary disposition pursuant to MCR 2.116(C)(7), (8) and (10), contending this suit is barred by governmental immunity, that plaintiffs failed to present a claim in avoidance of governmental immunity, and that there is no genuine issue of material fact.

Following a hearing, determining that the city was immune from liability because operation of the EMS service was a governmental function, the trial court granted the city's motion in part. However, relying upon MCL 333.20737; MSA 14.15(20737), the court ruled the city was vicariously liable for the gross negligence or wilful or wanton misconduct of its EMS dispatcher and, accordingly, denied the city's motion as to only this claim.

On appeal defendant city claims the trial court erred in ruling that the emergency medical services act, MCL 333.20737; MSA 14.15(20737), provides a statutory exception to the city's governmental immunity from vicarious liability for the conduct of its EMS dispatcher. We agree, finding the statute inapplicable to the negligent conduct herein alleged.

The statute states:

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 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. [Emphasis added]

In the instant case plaintiffs are attempting to hold the city vicariously liable for the alleged negligent conduct of the city's EMS dispatcher and 911 operator. We do not believe such conduct falls within the purview of the statute. The statute addresses liability based on acts or omissions of ambulance attendants and various emergency medical technicians, but does not discuss the imposition of liability based on an act or omission of a person providing communication services, as were the individual defendants in the instant case. Thus, as the statute is inapplicable to the facts of this case, the trial court clearly erred in finding the statute provided an exception to the city's governmental immunity and denying in part the city's motion for summary disposition.

Moreover, even had the alleged negligent conduct fallen within the ambit of the statute, we do not believe the statute provides an exception to the governmental immunity act, MCL 691.1401 et seq.; MSA 3.996(101) et seq., or imposes vicarious liability on governmental agencies. When imposing liability for acts or omissions resulting from gross negligence or wilful misconduct, the statute refers to "[a]ll persons" named in the statute, not governmental units.

Reversed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.