Opinion
Opinion on Rehearing Nov. 26, 1996.
Vacated Dec. 10, 1996.
SPECIAL ORDERS
The Court orders that a special panel shall be convened pursuant to Administrative Order No. 1996-4 to resolve the conflict between this case and Cooper v. Wade, 218 Mich.App. 649, 554 N.W.2d 919 (1996).
The Court further orders that the opinion on rehearing released November 26, 1996, is hereby vacated. The appellant shall file a supplemental brief within 28 days of the clerk's certification of this order. Appellee may file a supplemental brief within 21 days of service of appellant's brief. Nine copies must be filed with the Clerk of the Court.
Before: O'CONNELL, P.J., and GRIBBS and T.P. PICKARD, JJ.
Circuit judge, sitting on the Court of Appeals by assignment.
OPINION
PICKARD, Judge.
Plaintiff appeals as of right from the order granting summary disposition in favor of defendants pursuant to MCR 2.116(C)(7) and (10) in this wrongful death action. Defendants also cross-appeal. We affirm.
The decedent, Courtney Henderson, was a passenger in a vehicle which was involved in a police chase. During the pursuit, the driver, Blakeney, disregarded a red traffic signal and drove into oncoming traffic causing a head-on collision with another vehicle and, as a result, Henderson was killed. It was later determined that the car Blakeney was driving was stolen. Thereafter, the personal representative for Henderson's estate, Debra Robinson, brought an action against defendants alleging that the officers were negligent or grossly negligent in the pursuit of the vehicle. Defendants filed a motion for summary disposition claiming that defendants did not owe a duty to Henderson and that governmental immunity and the absence of gross negligence barred plaintiff's claim. The trial court granted defendant's motion finding that defendants did not owe a duty to Henderson. The trial court also concluded that because defendants' conduct was not the proximate cause of plaintiff's injury, the gross negligence exception to governmental immunity which would at best establish liability against only the individual officers, not the City, Gracey v. Wayne County Clerk, 213 Mich.App. 412, 540 N.W.2d 710 (1995), did not apply, and, as such, governmental immunity precluded plaintiff's action.
The first issue to be decided is whether governmental immunity applied to relieve the individual police officers from liability. In deciding a motion for summary disposition under M.C.R. 2.116(C)(7), the court reviews the plaintiff's complaint to see whether facts have been pleaded justifying a finding that the recovery is not barred by governmental immunity. Vermilya v. Dunham, 195 Mich.App. 79, 81, 489 N.W.2d 496 (1993). The trial court determined that for the gross negligence exception to governmental immunity, M.C.L. § 691.1407(2); M.S.A. § 3.996(107)(2), to apply, defendants must be "the" proximate cause of plaintiff's injury and since defendants' conduct was not "the" sole proximate cause, governmental immunity applied and barred plaintiff's claim. The trial judge relied on Dedes v. Asch, 199 Mich.App. 385, 502 N.W.2d 720 (1993). However, the Michigan Supreme Court has since overruled the Dedes case and rejected a literal interpretation of the word "the" as used in M.C.L. § 691.1407(2); M.S.A. § 3.996(107)(2) preceding the words "proximate cause." Dedes v. Asch, 446 Mich. 99, 521 N.W.2d 488 (1994). Therefore, we find that the trial court erred when it required defendant's conduct to be "the" sole proximate cause of plaintiff's injury.
Nevertheless, the officers' conduct did not amount to gross negligence because they had reason to pursue the vehicle where Blakeney was driving erratically and they activated their signals to notify Blakeney and others that they were in pursuit. A police officer confronted with criminal activity is not grossly negligent in resolving to apprehend the criminal, even if deadly force and concomitant danger to innocent civilians inevitably results. Brown v. Shavers, 210 Mich.App. 272, 532 N.W.2d 856 (1995). Reasonable minds could not differ that this conduct did not amount to gross negligence. Pavlov v. Community EMS, 195 Mich.App. 711, 719, 491 N.W.2d 874 (1992). Therefore, the trial court properly granted summary disposition in favor of the individual officers. This Court will not reverse a trial court's decision if the right result is reached for the wrong reason. In re Powers, 208 Mich.App. 582, 591, 528 N.W.2d 799 (1995).
The next issue is whether the motor vehicle exception to governmental immunity found at M.C.L. § 691.1405; M.S.A. § 3.996(105) applies to the City of Detroit. M.C.L. § 691.1405; M.S.A. § 3.996(105) creates an exception to governmental immunity with regard to the governmental agency, herein the City of Detroit, for the negligent operation of a motor vehicle owned by that governmental agency. Defendants argued that plaintiff did not plead operation of a motor vehicle because the facts involve a decision to pursue the vehicle which does not constitute operation of a motor vehicle. We find that plaintiff adequately pleaded operation of a motor vehicle by pleading that the officers drove at too high a rate of speed and that the officers did not take proper safety precautions during the pursuit. Nolan v. Bronson, 185 Mich.App. 163, 177, 460 N.W.2d 284 (1990).
The Court finds, however, that a question of law has been presented, that is, whether the officers owed a duty to Henderson. In Fiser v. City of Ann Arbor, 417 Mich. 461, 339 N.W.2d 413 (1983), Ewing v. City of Detroit (On Remand), 214 Mich.App. 495, 543 N.W.2d 1 (1995), and Frohman v. Detroit, 181 Mich.App. 400, 450 N.W.2d 59 (1989), the Courts determined that police officers owe a duty to an innocent third party who is injured as a result of a high speed chase. In Jackson v. Oliver, 204 Mich.App. 122, 514 N.W.2d 195 (1994), this Court determined that police officers do not owe a duty to the fleeing suspect in a police pursuit.
The Courts in Fiser and Frohman did not specifically address the issue of duty. However, the recognition of a cause of action implied a recognition of a duty to an innocent third party.
Unlike an innocent third party, a passenger has voluntarily placed himself in the hands of the driver. He can exercise control in encouraging the driver to stop and obey the police. This ability greatly outweighs the urge a driver may have to flee pursuing police, since the passenger can directly communicate with the driver.
As in most cases, the police must make split second decisions whether to pursue a vehicle, and if so, whether to break off pursuit. In this case where a stolen car is being driven erratically, harm could come to a passenger, if pursued or not pursued by the police (for example, if the driver was intoxicated and no pursuit was initiated and a passenger later killed, would the decedent have filed an action against the police for failing to attempt to stop). Police should not be judged by hindsight. These types of situations require a bright-line rule. Here, as in Jackson, "the police did not shoot at the decedent or at his vehicle, they did not set a trap designed to make him lose control of his vehicle, and they did not intentionally ram his vehicle. They did not establish the speed of the chase and did not control the route, they simply attempted to prevent the decedent's escape. This is not the use of excessive force, it is the use of minimal force." Id., at 127, 514 N.W.2d 195. The police did not dictate the degree of speed. What endangered the decedent was the deliberate and reckless conduct of the driver of the car in which decedent was a voluntary passenger.
"Out of concern for public safety, police must sometimes allow fleeing suspects to get away." Id., at 126, 514 N.W.2d 195. Oftentimes, however, police cannot ascertain whether a passenger is encouraging a driver to flee or if there is a passenger in the fleeing car or whether the passenger is otherwise particeps criminis to some other offense. Indeed, if the passenger were a hostage, use of potential deadly force to immediately terminate the ongoing felony would be appropriate. Brown, supra. In making their split second decision in regard to a chase, the police should only have to consider the safety of the innocent public, not what may be going on inside the car they are pursuing or who may be in the car.
The question of whether an involuntary passenger can or cannot be an innocent bystander under different facts, such as a kidnap victim, is better left for another day. The important policy question of whether the police should attempt to save the kidnap victim from the fleeing suspect or terminate the chase to avoid further injury to the kidnap victim, is also beyond the scope of this opinion.
We hold that a passenger voluntarily in a fleeing car is not an innocent bystander and does not fall under the rule in Fiser. Plaintiff's complaint was properly dismissed as no duty was owed to the decedent by the City of Detroit. In light of our decision above, the issue raised in the defendants' cross-appeal is moot.
Affirmed.