Michigan Appeals Court Upholds Ruling for Defendants, Pursuant to Firefighter Rule
Kristy Bastine, a Westland police officer, sued the city of Dearborn Heights, the city of Southfield, and Dearborn Heights Police Officer Tim Ciochon after being injured while participating in SWAT training in 2012. In a recent decision, the Michigan Court of Appeals upheld the lower court’s grant of summary disposition to the defendants, reasoning that the statutory firefighter rule barred the plaintiffs’ claims.In 2012, Kristy became a member of Westland’s SWAT team. During the subsequent SWAT training, the trainees were told to quickly get into a general purpose vehicle (GPV), a heavy-duty assault vehicle driven by Ciochon. Kristy testified that when she entered the vehicle, she looked for a seat belt but could not find one. Although the testimony of the witnesses varied, the evidence indicated that shortly before returning to the starting point, the GPV hit an object, probably a tree stump. The impact caused Kristy to fly off her seat, hit the roof with the back of her helmet, fall forward, and hit her chin and teeth on something inside the GPV. She was later diagnosed with a spinal fracture and traumatic brain injury.
Kristy, her husband, and her bankruptcy trustee sued the city of Southfield and the city of Dearborn Heights for governmental liability and Ciochon for gross negligence. The defendants moved for summary disposition, pursuant to MCR 2.116(C). The trial court granted the motion, finding that the plaintiffs’ claims were barred by governmental immunity. The trial court reasoned that Kristy’s injuries derived from the normal, inherent, and foreseeable risks of a police officer’s profession, and the statutory firefighter’s rule in MCL 600.2966 therefore barred her claims. The plaintiffs appealed.
The Michigan Court of Appeals began by outlining the firefighter rule. MCL 600.2966 provides that the state and its employees are immune from tort liability for an injury to a firefighter or police officer that arises from the normal, inherent, and foreseeable risks of the firefighter’s or police officer’s profession. The Michigan Supreme Court recently considered the scope of immunity provided for governmental entities and employees by the firefighter’s rule in Lego v. Liss, 874 NW2d 684 (2016).
In Lego, two police officers were apprehending an armed robbery suspect when the defendant officer accidentally shot the plaintiff officer. The plaintiff officer sued the defendant officer for gross negligence. The defendant officer sought summary disposition on the basis of governmental immunity under MCL 600.2966. The trial court denied the motion, and the appeals court affirmed because the plaintiffs had alleged facts that, if true, would demonstrate that the defendant had violated police training and safety procedures.
The state high court reversed and remanded for the entry of an order granting the defendant officer summary disposition. The Lego court reasoned that MCL 600.2967 does not apply to a cause of action against a governmental entity or its employees. Instead, MCL 600.2966 provides absolute immunity “from tort liability for an injury to a firefighter or police officer that arises from the normal, inherent, and foreseeable risks of the firefighter’s or police officer’s profession” without excepting gross negligence. MCL 600.2967(1) applies only when the defendant is not among the government actors delineated in MCL 600.2966. Under Lego, the appeals court explained, whether Ciochon was grossly negligent was irrelevant in determining whether the defendants were entitled to immunity, even if Ciochon acted in disregard of his training and violated safety procedures.
In Kristy’s case, the only question before the appeals court was whether Kristy’s injuries arose from the normal, inherent, and foreseeable risks of the profession of police officer. The trial court found that they did, and the appeals court agreed. In Lego, the Michigan Supreme Court held that being shot by a fellow police officer while trying to apprehend a suspect is one of the normal, inherent, and foreseeable risks of the profession of police officer. Moreover, the appeals court held in another case that a police officer struck by an allegedly grossly negligent municipal fire truck driver at the scene of an accident was a similarly foreseeable risk.
The plaintiffs argued that the “normal, inherent, and foreseeable risks of the firefighter’s or police officer’s profession” should be determined by looking at a particular officer’s “normal course of duties.” But Michigan precedent, the appeals court explained, does not support that theory. The appeals court concluded that being injured in a vehicle during SWAT training as a result of the vehicle hitting an object is a normal, inherent, and foreseeable risk of the police officer’s profession. Therefore, the intermediate court held the trial court properly determined that the firefighter’s rule barred the plaintiffs’ claims.
The work injury attorneys at the Neumann Law Group represent injured people throughout Michigan from offices in Traverse City and Grand Rapids. Call us at (231) 463-0122 or at (616) 717-5666 for a free consultation.
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