Woods v. City of Warren

482 N.W.2d 696, 439 Mich. 186

• Court: Michigan Supreme Court
• Decided: March 27, 1992
• Docket: 89274, (Calendar No. 4)
• Status: Published

Opinions

Brickley, J.

In this case, we are asked whether the fireman’s rule adopted in Kreski v Modern Wholesale Electric Supply Co, 429 Mich 347; 415 NW2d 178 (1987), applies to bar a suit brought by a police officer injured following a high speed chase. Because we believe that it does, we reverse the decision of the Court of Appeals and affirm the circuit court’s order of summary disposition.

I

During the early morning hours of February 2, 1986, Sergeant Charles Woods of the Center Line Department of Public Safety was on police patrol in Center Line. Reserve Officer Phillip Smart accompanied him. Around 2:50 a.m., Sergeant Woods received word that a Camaro z-28 had been stolen and was proceeding down a nearby street. Abandoning normal patrol duties, he drove to investigate. He spotted the stolen car as it drove past the street on which Sergeant Woods was then driving. Sergeant Woods notified the dispatcher that he had located the car and gave chase.

Upon seeing Sergeant Woods, the driver of the stolen car accelerated rapidly. Sergeant Woods also sped up, trying to maintain observation of the vehicle. As the two cars sped down Lawrence Street, Reserve Officer Smart began alerting other police officers of the incident so that they could saturate the area. As they drove, Sergeant Woods interrupted Officer Smart and took over radio communications himself.

Lawrence Street runs through both the City of Center Line and the City of Warren. Although starting in Center Line, the two cars quickly entered Warren. Lawrence Street, a north-south street, ends where Republic Street, an east-west street, cuts across it, forming a "t” intersection. The stolen car approached Republic Street, attempted to turn, but could not because of glaze ice on the road, drove over the curb and came to rest in the living room of an unoccupied house on Republic Street. The thief then fled on foot. Sergeant Woods meanwhile also attempted to slow down as he approached the intersection, but, because of the icy road, could not, and smashed into the same house, suffering injuries to his pelvis and hip.

On September 26, 1986, Sergeant Woods and his wife brought this action in the Macomb Circuit Court. Following discovery, the circuit court granted defendant’s motion for summary disposition on the basis of the fireman’s rule. Plaintiff appealed, and the Court of Appeals reversed the circuit court’s order. 183 Mich App 656; 455 NW2d 382 (1990). Defendant then filed an application for leave to appeal, which we granted. 437 Mich 1035 (1991).

II

Taking plaintiff’s¹ well-pleaded allegations as true,² the particular facts alleged call for application of the fireman’s rule as adopted in Kreski v Modern Electric. Because Sergeant Woods’ injury resulted directly from his performance of police duties, the Macomb Circuit Court’s order granting summary disposition was correct.

The fireman’s rule has a long and impressive common-law heritage.³ Michigan first embraced it in Kreski. The fireman’s rule prevents police officers and fire fighters from recovering for injuries sustained in the course of duty. Id. at 358. Even though several rationales have been advanced, the most basic is "that the purpose of safety professions is to confront danger and, therefore, the public should not be liable for damages for injuries occurring in the performance of the very function police officers and fire fighters are intended to fulfill.” Id. at 368. When this rationale is implicated and no other considerations outweigh it, the fireman’s rule requires dismissal of a safety officer’s suit. Adjudicating these disputes requires "balancing] the underlying rationales with the interest of allowing recovery when those rationales are not implicated.” Id. at 371. Thus, the rule will develop mainly through case-by-case adjudication of concrete disputes. We follow that approach today.

We believe plaintiff’s suit presents a clear case for the application of the fireman’s rule. In both Kreski and Reetz v Tipit, Inc, a case consolidated and decided with Kreski, this Court applied the fireman’s rule to bar suits brought by a fire fighter and a police officer who suffered injuries directly related to performance of their duties. This Court dismissed both suits because the injuries clearly occurred while the safety officers were performing their duties. In Kreski, a fire fighter was killed when a part of a burning building’s roof fell on him. In Reetz, a police officer suffered injuries when she fell down a trap door while investigating a burglary.⁴ Each injury occurred in the performance of a duty characteristic of the particular safety officer’s job.

Sergeant Woods’ crash occurred while he was performing a classic police function. After receiving a radio report of a stolen car, he located it, informed the dispatcher, and pursued it. Sergeant Woods was no longer merely on patrol; he was actively engaged in one of a police officer’s most common duties. Needing to maintain sight of the stolen vehicle, Sergeant Woods accelerated to speeds between forty and forty-five miles per hour. Driving at high speeds on potentially icy roads obviously increases the risk of an accident such as Sergeant Woods’. This injury clearly stems from the performance of a fundamental police function. In such circumstances, the fireman’s rule "foundational policy rationale” applies, and plaintiff’s suit must share the same fate as those in Kreski and Reetz, i.e., dismissal.

III

Plaintiff seeks to avoid application of the fireman’s rule with four arguments. First, he argues that an affirmative statutory obligation exists to maintain roads in a safe condition. MCL 691.1402; MSA 3.996(102). That duty, he suggests, allows "any person” to bring suit against a governmental entity for injuries caused by breach of that obligation. Second, he contends that the fireman’s rule ought not to apply because the injury suffered by Sergeant Woods is not "unique” to police duties. Third, he argues that a number of "exceptions” to the fireman’s rule apply, allowing Sergeant Woods’ suit to proceed to trial. Finally, plaintiff suggests that grammatically parsing Kreski’s holding creates a basis to bring his suit to trial. We disagree with each of these contentions.

We agree that the City of Warren has an affirmative statutory obligation to maintain its roads and that "any person” may bring a suit to enforce that obligation. We do not, however, agree that this section removes the bar to plaintiff’s action imposed by the fireman’s rule. In Forest v Parmalee, 402 Mich 348; 262 NW2d 653 (1978), this Court indicated that the sole purpose of MCL 691.1402; MSA 3.996(102) was to provide an exception to governmental immunity. The statute neither adds to nor detracts from a plaintiff’s right to proceed in the absence of governmental immunity.⁵ Forest, supra at 358.

We also reject plaintiff’s second argument. Although the danger from slippery roads is not unique to police officers, Sergeant Woods’ injury flows directly from his performance of his police duties and from a specific risk which, under the circumstances, was increased by his performance of those duties.⁶ As Kreski’s articulation of the fireman’s rule rationale indicates, the analytical focus must be on whether the injury stems directly from an officer’s police functions. If the circumstances indicate that it does, the fireman’s rule applies. If the circumstances indicate otherwise, it likely does not.

We reject plaintiff’s suggested "uniqueness” test for another reason as well. To adopt this approach would effectively diminish the fireman’s rule. Although some injuries may be incurred more commonly by police officers, no injuries are unique to them. What is unique is being called upon to perform duties which expose officers to such risks far more often than the public at large.⁷ The kind of duty, not the kind of injury, provides the starting point for analysis.

Plaintiff’s next argument asserts that Kreski apparently recognizes several "exceptions” to the fireman’s rule. It did not. The Kreski Court did indicate that the rationale of the fireman’s rule might not apply in every circumstance involving an injury to a safety officer. It suggested, for instance, that buildings open to the public might justify a different result and that injuries resulting from intentional torts might also justify disregarding the fireman’s rule. The Court did not, however, establish that those circumstances prevented application of the fireman’s rule.⁸ It merely used them to indicate its willingness to apply the rule flexibly as circumstances required. That the Kreski Court chose this language to avoid rigid and formalistic adjudication does not mean it intended to defeat application of the fireman’s rule when otherwise justified.

Plaintiff’s final attempt to avoid the fireman’s rule is to parse the Kreski holding narrowly. He points to the following language as expressive of the scope of the fireman’s rule:

[A]s 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. [Kreski, supra at 372.]

During oral argument, plaintiff provided a grammatical analysis of this statement, noting that between the two sentences no conjunction is used. From a grammatical standpoint the word "includes” refers to a subset, making the entire second sentence applicable only if the predicate condition precedent of the first sentence is met. As a result, he suggests that Kreski’s holding should not bar his cause of action.

Plaintiff, however, overlooks an exposition of the rule that immediately follows. As this Court held: "The scope of the rule . . . includes negligence in causing the incident requiring a safety officer’s presence and those risks inherent in fulfilling the police or fire fighting duties.”⁹ Kreski, supra at 372 (emphasis added). Given the factual context in Kreski and Reetz, we think the latter statement more accurately reflects the law and therefore explicitly adopt it today.

In Kreski, the plaintiff died when a burning roof fell on him. The plaintiff alleged that negligence in the design of the roof led to its collapse. The reason for plaintiff’s presence, however, was the fire. According to Sergeant Woods’ theory, the plaintiff should have recovered. This Court, however, denied recovery because his injury was a "normal, inherent, and foreseeable risk[]” of fire fighting duties. Id. at 372. Therefore, the Court necessarily applied the latter exposition of the rule.

The application of the fireman’s rule in Reetz reinforces the conclusion that the second description of the fireman’s rule most accurately states the law. In Reetz, a police officer fell through an open trap door while investigating a burglary. The reason for her presence in the building was not connected with the negligence alleged, i.e., leaving the trap door open. Again, the Court found that the fireman’s rule prevented recovery in two general circumstances, not one. The disposition of these cases indicates that the fireman’s rule bars recovery for two types of injury: those deriving from the negligence causing the safety officer’s presence and those stemming from the normal risks of the safety officer’s profession.

None of plaintiff’s arguments suffice to prevent application of the fireman’s rule in this case. Sergeant Woods suffered an injury fróm a specific risk directly connected with the performance of his police duties. In the circumstances presented here, it is sufficient to justify applying the fireman’s rule in Sergeant Woods’ suit.

IV

Because we believe the fireman’s rule applies in these circumstances, we reverse the decision of the Court of Appeals and affirm the circuit court’s order of summary disposition dismissing plaintiff’s suit.

Cavanagh, C.J., and Boyle, Riley, Griffin, and Mallett, JJ., concurred with Brickley, J.

1 Although both Sergeant Woods and his wife filed complaints, Mrs. Woods’ suit is wholly derivative. We will therefore use "plaintiif” in the singular.

2 Although defendant did not originally make it clear, the circuit court analyzed his motion for summary disposition as one brought under both MCR 2.116(C)(8) and MCR 2.116(0(10). We analyze the question under MCR 2.116(C)(8). Kreski, supra at 352, 356. Because summary disposition is proper under subrule (C)(8), we do not reach the subrule (C)(10) issue.

3 The Kreski Court described the precedential backing of the fireman’s rule as “impressive” and noted that the rule was “deeply rooted in common law.” Id. at 357.

4 In the Reetz portion of its opinion, this Court noted:

[P]olice officers cannot be certain what dangers surround them when investigating a burglary. They have been trained to expect a variety of contingencies and to deal with those contingencies as they arise. It was plaintiff’s duty to investigate the burglary, despite the inherent dangers. In performance of her duty, plaintiff took the premises as she found them, with no representations being made regarding their safety. [Kreski, supra at 378.]

The Court’s comment applies equally to Sergeant Woods. He had received extensive training in maneuvering cars on slippery roads, and it was Sergeant Woods’ duty to follow the stolen car. If the fireman’s rule applied to Officer Reetz, it applies to Sergeant Woods.

5 As this Court in Reich v State Highway Dep’t, 386 Mich 617, 623; 194 NW2d 700 (1972), explained:

The object of the legislation under consideration is to waive the immunity of governmental units and agencies from liability for injuries caused by their negligent conduct, thus putting them on an equal footing with private tortfeasors.

6 McGhee v Dep’t of State Police, 184 Mich App 484; 459 NW2d 67 (1990).

7 Sergeant Woods himself echoed this: "In the course of eighteen years, I’ve had numerous injuries occur, that sort of goes with my type of work.”

8 Of course, this statement should not be taken to prevent application of these "exceptions” when Kreski’;s fundamental policy rationale is inapplicable.

9 The Kreski Court offered this explanation in response to an argument that the negligence was unrelated to the reason the fire fighter was present. "Plaintiff also argues that, since the alleged negligence is unrelated to the cause of the fire, it was unforeseeable and, thus, not inherent in fire fighting. We disagree.” Kreski, supra at 372.