Michigan Court of Appeals; Docket #354486; Unpublished
Judges Shapiro, Jansen, and Beckering ; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion; Link to Dissent
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Motor-Vehicle Exception to Governmental Tort Liability Act
SUMMARY:
In this 2-1 unpublished per curiam decision (Jansen, dissenting), the Court of Appeals affirmed the trial court’s denial of Defendant Deshawn Harris’s motion for summary disposition, in which Harris sought to dismiss Plaintiff Mary LaTarte’s third-party lawsuit on governmental immunity grounds. The Court held that a question of fact existed as to whether Harris, a Saginaw City police officer, acted with gross negligence in causing the subject motor vehicle collision.
Harris and his partner were both on duty and sitting in separate police cars in a parking lot when they received a dispatch regarding an individual possibly threatening to commit suicide. They both responded to the call, driving down a road with a 30-35 miles per hour speed limit at approximately 83 miles per hour. Harris decided not to turn on his lights or siren because he did not want to alert the distressed individual to his approach. At the same time, Mary LaTarte was traveling on the same roadway but in the opposite direction, preparing to turn left at an intersection. She testified that she did not see any oncoming traffic that was close enough to warrant her waiting for it to clear, and thus initiated her turn. Officer Harris’s vehicle was traveling at such a high rate of speed, however, that he reached the intersection before she could complete her turn. He tried to brake to avoid a collision, but lost traction on the wet roadway and crashed into the rear of her vehicle.
In LaTarte’s third-party lawsuit in which she named Harris—and not the Saginaw City Police Department—as the sole defendant, Harris moved for summary disposition, arguing that he was shielded by governmental immunity because LaTarte failed to present sufficient evidence to create a question of fact as to whether he acted with gross negligence. Specifically, he argued that he had to exceed the speed limit with his lights and siren turned off because of the circumstances of the call he was responding to, and that it was LaTarte’s failure to yield that was the most immediate, proximate cause of the crash. LaTarte opposed the motion, noting that Harris was driving in his black car on an overcast day at more than double the speed limit, without his lights or siren activated, and that he failed to appreciate the wet conditions of the roadway, all of which created a question of fact as to whether he acted with gross negligence. The trial court agreed with LaTarte, and denied Harris’s motion for summary disposition.
The Court of Appeals affirmed the trial court’s denial of LaTarte’s motion, holding that LaTarte did, in fact, present sufficient evidence to create a question of fact as to whether Harris acted with gross negligence. The Court affirmed that while police officers are permitted by statute to exceed the speed limit when responding to an emergency and to disengage their siren when the circumstances of their response require silence, they still owe a duty of care to other drivers and pedestrians. Moreover, there is no statutory authority to suggest that police can exceed the speed limit without so much as activating their headlights on an overcast day. In this case, the Court noted that Harris was driving as much as 53 miles per hour over the speed limit, on an overcast day, in a black car, possibly without his headlights even being activated, and on a wet roadway. A reasonable jury could conclude that these actions, considered in totality, constituted gross negligence on the part of Harris.
"In this case, the evidence shows that defendant was traveling well over twice the posted speed limit through a busy intersection without lights or sirens two days before Christmas. Driving 83 miles per hour when approaching the intersection, and depending on whether the speed limit was 30 or 35 miles per hour, defendant was traveling up to 53 miles per hour over the speed limit, which by any measure is dangerously fast. It was an overcast day, defendant’s car was black, he may not have had his headlights on, and the pavement appears wet, which are factors that would have impacted the visibility of his car, an unsuspecting motorist’s ability to appreciate the speed of his approach, and his ability to react under the circumstances. Defendant acknowledged in his deposition that his attempt to avoid hitting plaintiff’s vehicle was unsuccessful because he lost traction. Moreover, the call to which he was responding was across the river and at least a mile away, and as plaintiff points out, defendant could have activated at least his emergency response lights until he arrived closer to the scene of the call so as not to unnecessarily endanger others en route. A reasonable jury could conclude that defendant’s actions under these circumstances demonstrated ‘almost a willful disregard of precautions or measures to attend to safety and a singular disregard for substantial risks.’ Id. As a result, reasonable minds could differ in regard to whether defendant acted with gross negligence, and summary disposition was properly denied on this ground."
As for proximate cause, the Court of Appeals held that there was a factual dispute as to whether LaTarte’s failure to yield to Harris’s oncoming vehicle before initiating her left hand turn was the proximate cause of the crash, or whether Harris’s driving approximately 50 miles per hour over the speed limit, in a black vehicle, without lights or sirens on an overcast day, which could have made it impossible for LaTarte to appreciate how soon he would reach the intersection in deciding whether she needed to wait before initiating her turn, was the proximate cause of the crash. Specifically, the Court of Appeals noted that MCL 259.649(7) provides that, “ ‘the driver of a vehicle traveling at an unlawful speed forfeits a right of way that the driver might otherwise have,’ ” and that a question of fact therefore existed as to which action was the most immediate and direct cause.
"In the present case, defendant argues that plaintiff was the most immediate, efficient, and direct cause of her injuries because she failed to yield to him before making her turn. Specifically, he asserts that because Officer Booth passed plaintiff at a high rate of speed, a reasonably prudent person would have paused before turning. However, plaintiff testified in her deposition that she looked at incoming traffic and believed she had enough time to turn. Therefore, whether plaintiff should have been on notice that a second vehicle would be following Officer Booth at a high rate of speed is a factual dispute to be resolved by the jury. Moreover, as discussed, defendant was traveling 83 miles per hour in a black vehicle without lights or sirens on an overcast winter day. There is a factual question concerning whether plaintiff could see defendant’s vehicle in time . . .
. . .
Additionally, according to MCL 259.649(7), ‘[t]he driver of a vehicle traveling at an unlawful speed forfeits a right of way that the driver might otherwise have. . . .’ Similar to Ray (On Remand), 321 Mich App at 761-762, factual issues exist in regard to what constitutes ‘the one most immediate, efficient, and direct cause’ of plaintiff’s injuries. Accordingly, the trial court properly denied defendant’s claim that he was entitled to governmental immunity based on proximate cause."
Justice Jansen, dissenting, argued that Harris’s conduct was excused in light of the circumstances—i.e. his necessary, emergency response—and therefore not grossly negligent. Moreover, she argued that LaTarte’s failure to yield was the proximate cause of the collision, because “a reasonably prudent person would have paused before attempting to turn left in front of oncoming traffic” after seeing Harris’s partner come through the intersection in her separate vehicle just before Harris.
