Fiser v City of Ann Arbor

M. J. Kelly, P.J.

(dissenting). We previously have held that a trial court considering a motion for summary judgment under GCR 1963, 117.2(3), must evaluate the pleadings, affidavits, depositions, admissions, and other documentary evidence. to determine whether there is any competent evidence to support the claim. Remes v Duby (After Remand), 87 Mich App 534, 537; 274 NW2d 64 (1978), lv den 406 Mich 986 (1979). Before summary judgment under this rule may be granted, a court must be satisfied that it is impossible for the claim asserted to be supported by evidence at trial. Fry v Ionia Sentinel-Standard, 101 Mich App 725; 300 NW2d 687 (1980). In my view, the question of Officer Lunsford’s negligence, and the consequent liability of the City of Ann Arbor, was an issue peculiarly well suited to be decided by the jury. As demonstrated by several decisions in other states, a pursuing officer’s actions may constitute a proximate cause of injuries sustained in an accident even where the police vehicle was not directly involved.

In Gibson v City of Pasadena, 83 Cal App 3d 651; 148 Cal Rptr 68 (1978), the California Court of Appeals analyzed a trial court order dismissing the plaintiffs complaint in a wrongful death action. In Gibson, officers pursued a traffic violator *374through 25 intersections, 12 of which had traffic control signals, at speeds exceeding 100 miles per hour. The violator’s car eventually struck that of the plaintiff, at a point in time when the nearest police vehicle was approximately 300 feet behind. The Court stated:

"In the instant case, the police officers observed a car run a red light. The driver was wanted solely for a traffic infraction. The police officers exercised their own judgment and discretion in determining to stop him. Plaintiff alleges that the actual pursuit was the implementation of the basic discretionary decision to pursue. In carrying out their ministerial acts, the police officers owed a duty of care to the general public. It would appear that it is reasonably foreseeable to expect a 100-mile per hour chase through city streets to culminate in an accident. However, it is for the trier of fact to determine if such conduct amounts to negligence under the circumstances.” Id., 660.

The Gibson Court also distinguished Bratt v City and County of San Franscisco, 50 Cal App 3d 550; 123 Cal Rptr 774 (1975), relied upon by the majority, on the basis that Bratt did not involve an allegation of negligence in the actual pursuit. Unlike the immune decision to pursue, the Gibson Court concluded that the actual pursuit "could be classified as ministerial and thus not entitled to a general grant of immunity”. Absent such immunity, a pursuing officer’s actions could be the basis for a finding of negligent pursuit.

In an earlier case, Reenders v City of Ontario, 68 Cal App 3d 1045; 137 Cal Rptr 736 (1977), the California Appeals Court discussed the possible proximate cause nexus of a pursuing officer’s conduct vis-á-vis the plaintiff’s injuries. In Reenders, various officers pursued a motorcycle being driven by a man wanted for assault with a deadly weapon *375(his motorcycle) and misdemeanor hit and run driving. The Court stated in pertinent part:

"We have no difficulty with the foreseeability of harm to the plaintiff. It is readily foreseeable that a motorist fleeing from pursuit by the police will operate his vehicle negligently and dangerously and cause injury to another user of the streets.” Id., 1053.

Because the traffic violator in Reenders was found to be intoxicated and there was a strong possibility that he was unaware of the police pursuit, the Court found no proximate cause. However, while the facts of Reenders did not support a finding of negligent pursuit therein, the Court recognized the possibility of such liability in cases exhibiting facts similar to those in the present case. See also Alexander v City of New York, 53 App Div 2d 846; 385 NYS2d 788 (1976), and Kuzmics v Santiago, 256 Pa Super 35; 389 A2d 587 (1978) for similar holdings.

In Michigan, the right of a police officer to disregard various traffic regulations, MCL 257.603; MSA 9.2303, does not absolve the officer of his duty to act as a "reasonably prudent man * * * in the discharge of official duties of a like nature * * McKay v Hargis, 351 Mich 409, 418; 88 NW2d 456 (1958). Further, by statute, MCL 691.1405; MSA 3.996(105), the negligent operation of a police vehicle is exempted from the general immunity afforded municipalities under MCL 691.1407; MSA 3.996(107). The facts surrounding Officer Lunsford’s chase in this case do not, as a matter of law, exhibit due care for the safety of innocent third persons. Plaintiff’s theory was that Lehman would not have been operating his vehicle in a reckless or negligent manner had the police abandoned the chase. Although that is certainly *376speculative, I cannot say that no factual development would support a trier of fact in concluding that a high speed hot pursuit chase was a proximate cause of the plaintiffs injuries. Statistics and expert testimony, I think, could provide evidence from which a jury could conclude that the continued pursuit by Officer Lunsford was a proximate cause of plaintiffs injury, thus triggering the liability of the officer and the City of Ann Arbor. I would reverse the lower court’s decision granting, summary judgment as to defendants Lunsford and the City of Ann Arbor.