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Estate of Jacobson, et al v Hornbeck, et al (COA – UNP 7/22/2021; RB #4296)  

 Michigan Court of Appeals; Docket #352976, 353862; Unpublished
Judges Borrello, Servitto, and Stephens; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion


STATUTORY INDEXING:
Not Applicable

TOPICAL INDEXING:
Judicial Estoppel
Negligence-Duty
Motor Vehicle Exception to Governmental Tort Liability Act


SUMMARY:
In this unanimous unpublished per curiam decision, the Court of Appeals reversed the trial court’s denial of Defendants Matthew Hornbeck and Samuel Bradley’s motion for summary disposition seeking dismissal of Plaintiff Estate of Lake Jacobson’s (“Plaintiff”) third-party claim against them, then affirmed in part and vacated in part the trial court’s denial of Defendant Sakstrup Towing, Inc.’s (“Sakstrup”) motion for summary disposition regarding Plaintiff’s third-party claim against it. The Court of Appeals first held that the public-duty doctrine shielded Hornbeck and Bradley, who were police officers, from liability for choosing not to detain an intoxicated driver who, after crashing his car into a culvert and being questioned by Hornbeck and Bradley, was allowed to get back in his car and drive off, immediately after which he crossed into oncoming traffic and crashed into Lake Jacobson’s vehicle, killing Jacobson instantly. The Court of Appeals then vacated the trial court’s denial of Sakstrup’s motion for summary disposition because the trial court did not employ the proper test for determining whether Sakstrup’s tow-truck employee owed a duty to Plaintiff’s decedent to adequately inspect the intoxicated driver’s crashed vehicle for disabling damage before towing it out of the culvert and to prevent the intoxicated driver from driving off in a disabled vehicle. Lastly, the Court of Appeals upheld the trial court’s ruling that judicial estoppel did not apply to bar the Plaintiff’s claim against Sakstrup because the trial court’s finding that genuine issues of material fact existed as to whether Hornbeck and Bradley were the proximate cause of Plaintiff’s decedent’s injuries “was not a finding that the officers ‘were the proximate cause.’ (emphasis added)”

Hornbeck and Bradley were dispatched to the scene of a one-car crash involving Desten Houge. Houge had driven into a culvert off the roadway, running over a traffic sign in the process, and became stuck. Hornbeck and Bradley responded to the scene and interacted with Houge but did not suspect that he was under the influence of any intoxicants. They called Sakstrup Towing to remove Houge’s car from the culvert, and upon arrival, Sakstrup’s employee, Eric Downs, inspected all sides of the vehicle and its underbody. Hornbeck, Bradley, and Downs then proceeded to drive off, allowing Houge to get back into his vehicle. Upon reentering the highway, Houge almost immediately drove into oncoming traffic, colliding head-on with Lake Jacobson, killing him instantly. One eyewitness, who observed Houge’s vehicle after it reentered the roadway, testified that “the front end of the vehicle was damaged, the vehicle was rocking side to side, the wheels were coming off the ground, and there was no evidence that Houge was braking.” A postmortem toxicology report revealed that Houge had a blood alcohol content of .242%—three times the legal limit.

Plaintiff subsequently filed a third-party claim alleging negligence and/or gross negligence against Hornbeck and Bradley for willfully disregarding obvious signs that Houge was intoxicated—signs which were “clearly evident” from the dash-cam footage of their interaction—and allowing him to get back on the road, thereby creating “ ‘a high risk of severe danger of serious injury or death.’ ” Plaintiff also filed a third-party claim against Sakstrup based on Downs’s failure to properly inspect the vehicle for disabling damage.

Hornbeck and Bradley moved for summary disposition, arguing that they were entitled to governmental immunity pursuant to the public-duty doctrine: they argued that they had a duty to the general public, not to any one individual—e.g. Plaintiff’s decedent—and that because the subject injury was to an individual member of the public, not the public at large, they were shielded from liability. Alternatively, they argued that they were neither grossly negligent nor the proximate cause of Plaintiff’s decedent’s injuries. Sakstrup also moved for summary disposition, arguing that Downs had no duty to Plaintiff’s decedent to act affirmatively on his behalf and retain Houge’s car after he towed it out of the culvert. The trial court denied both motions, ruling that the public-duty doctrine did not apply to shield Hornbeck and Bradley from liability, that a question of fact existed as to whether Hornbeck and Bradley were grossly negligent, and that a question of fact existed as to whether Downs had a duty to properly inspect the vehicle for disabling damage and request a tow order from the officers. Sakstrup then moved for summary disposition again, this time arguing that the trial court’s denial of Hornbeck and Bradley’s motion constituted a finding that Hornbeck and Bradley were the proximate cause of Plaintiff’s injuries, and that judicial estoppel therefore operated to bar Plaintiff’s claim that Sakstrup was the proximate cause of Plaintiff’s injuries. The trial court disagreed and denied that motion as well.

The Court of Appeals reversed the trial court’s summary disposition order as to Hornbeck and Bradley, holding first that the Hornbeck and Bradley were shielded from liability by the public-duty doctrine, which provides:

“that if the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, must be a public, not an individual injury, and must be redressed, if at all, in some form of public prosecution. On the other hand, if the duty is a duty to the individual, then a neglect to perform it, or to perform it properly, is an individual wrong, and may support an individual action for damages. [White v Beasley, 453 Mich 308, 316; 552 NW2d 1 (1996) (opinion by BRICKLEY, C.J.), quoting 2 Cooley, Torts (4th ed), § 300, pp 385-386.]”

The Court held that Horneck and Bradley’s duty to not put an intoxicated driver back on the roadway was to the public at large, not to any one individual. Therefore, Hornbeck and Bradley’s breach could only be redressed if the subject injury was an injury to the public at large. In this case, the subject injury was not to the public at large, but rather to one individual, and therefore the public-duty doctrine operated to shield them from liability.

The Court further held that Hornbeck and Bradley would be entitled to summary disposition even if they did owe a duty to Plaintiff’s decedent, and even if they were grossly negligent, because, under the Governmental Tort Liability Act, government employees may be liable for their gross negligence only if their gross negligence is the proximate cause of the injury—ergo, “ ‘the one most immediate, efficient, and direct cause preceding the injury’”—not merely a proximate cause. Here, the most immediate, efficient, and direct cause preceding the injury was Houge’s voluntary decision to get back into his car and onto the roadway.

The Court of Appeals then vacated the trial court’s denial of Sakstrup’s motion for summary disposition and remanded for further proceedings to properly analyze whether Sakstrup owed a duty to Plaintiff’s decedent. Houge and Downs entered into an oral contract whereby Downs agreed to tow Houge’s vehicle out of the culvert in exchange for some amount of money. Sakstrup argued on appeal that a duty would only be owed by Downs to Plaintiff’s decedent—a noncontracting third party—if a special relationship existed between Downs and Plaintiff, which was not the case here. The Court of Appeals disagreed, noting that Downs could have owed a duty to Plaintiff’s decedent that was separate and distinct from his contractual obligations, and breached that duty if he created “ ‘a ‘new hazard’ in carrying out [his] contractual duties.’ ” Therefore, the Court of Appeals remanded to the trial court for a determination of whether Downs created a new hazard by failing to properly inspect Houge’s vehicle and request a tow order, which, if he did, would thereby have created a duty in Downs to Plaintiff’s decedent.

“In the present case, the trial court said regarding Sakstrup: ‘I think that as to the issue of duty, the contract where you had a duty to inspect and report, I think that is something under basic tort law can [sic] go to a jury on that question.” The meaning of the trial court’s statement is not entirely clear. However, even if Sakstrup, through its employee, did negligently perform its oral contract with Houge, it only owes a duty to the nonpresent, third-party decedent if, by recovering Houge’s vehicle, Sakstrup ‘created a ‘new hazard.’ ’ Id. at 167. To determine whether this duty to avoid creating a new hazardous condition applies in the instant case, a trial court should consider factors such as ‘the relationship of the parties, the foreseeability of the harm, the burden on the defendant, and the nature of the risk presented.’ Hill v Sears, Roebuck & Co, 492 Mich 651, 661; 822 NW2d 190 (2012) (quotation marks and citation omitted); see also Murdock v Higgins, 454 Mich 46, 53; 559 NW2d 639 (1997); Buczkowski v McKay, 441 Mich 96, 100; 490 NW2d 330 (1992); Moning v Alfono, 400 Mich 425; 254 NW2d 759 (1997).”

Lastly, the Court of Appeals affirmed the trial court’s denial of Sakstrup’s motion in which Sakstrup argued that Plaintiff’s claim against it was barred by judicial estoppel because Plaintiff successfully argued, in defeating Hornbeck and Bradley’s motion for summary disposition, that Hornbeck and Bradley were the proximate cause of Plaintiff’s injuries. The Court of Appeals held that the trial court’s finding that a question of fact existed as to whether Hornbeck and Bradley were the proximate cause of Plaintiff’s injuries was not the same thing as a ruling that Hornbeck and Bradley were, in fact, the proximate cause of Plaintiff’s injuries. Therefore, judicial estoppel was not applicable in the present case.

“Sakstrup contends that plaintiff successfully argued that the officers were ‘the proximate cause’ of the decedent’s fatal injuries such that he cannot now argue that Sakstrup is a proximate cause of the decedent’s injuries. This is incorrect. At best, the trial court’s denial of defendant officers’ motion for summary disposition indicates that the trial court agreed with plaintiff that genuine issues of material fact remain regarding whether the officers were entitled to summary disposition. The court indicated as much when it said that, on the basis of the various questions of fact regarding the officers’ interaction with Houge, a reasonable juror could find that the officers’ conduct at the first crash constituted gross negligence that was the proximate cause of the decedent’s injuries. The court’s finding of genuine issues of material fact regarding whether the officers were entitled to governmental immunity was not a finding that the officers were ‘the proximate cause’ of the decedent’s injuries and, therefore, does not render plaintiff’s argument that Sakstrup proximately caused the decedent’s injuries ‘wholly inconsistent.’ Accordingly, we affirm the trial court’s order of March 12, 2020.”

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