KIMBERLY AUSBY V SAPERSTEIN ASSOC CORP
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STATE OF MICHIGAN
COURT OF APPEALS
KIMBERLY DOWNS, as Personal Representative
of the Estate of ANNETTE EGGLESTON,
Deceased, and MARUEL EGGLESTON, as
Personal Representative of the Estate of
ANNETTE EGGLESTON, Deceased,
UNPUBLISHED
February 15, 2005
APPROVED FOR
PUBLICATION
April 14, 2005
9:00 a.m.
Plaintiffs-Appellees,
V
SAPERSTEIN ASSOCIATES CORPORATION,
PALLISTER PLAISANCE LTD HOUSING
ASSOCIATION, CITY OF DETROIT, and L.
PAUL RINGLER,
No. 248360
Wayne Circuit Court
LC No. 01-137332-NO
Defendants,
and
ROBERT W. KIRK, as Personal Representative of
the Estate of RONALD NAUMAN, Deceased,
Defendant-Appellant.
HESTER SHANNON, as Personal Representative
of the Estate of NORFESSIA SHANNON,
Deceased, and the Estate of AU JANE MARIE
WRIGHT, Deceased, and Next Friend of DAREE
SHANNON, Minor,
Plaintiff-Appellee,
v
No. 248361
Wayne Circuit Court
LC No. 01-123802-NO
EDWARD HARRIS, SAPERSTEIN
ASSOCIATES CORPORATION, MICHAEL
HASTINGS, and EDWARD HUYCK,
Defendants,
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and
ROBERT W. KIRK, as Personal Representative of
the Estate of RONALD NAUMAN, Deceased,
Defendant-Appellant.
KIMBERLY AUSBY, as Personal Representative
of the Estate of JEANNETTE PATRICIA
AUSBY, Deceased,
Plaintiff-Appellee,
v
SAPERSTEIN ASSOCIATES CORPORATION,
PALLISTER PLAISANCE LTD HOUSING
ASSOCIATION, CITY OF DETROIT, and L.
PAUL RINGLER,
No. 248362
Wayne Circuit Court
LC No. 01-136706-NO
Official Reported Version
Defendants,
and
ROBERT W. KIRK, as Personal Representative of
the Estate of RONALD NAUMAN, Deceased,
Defendant-Appellant.
Before: Wilder, P.J., and Hoekstra and Owens, JJ.
PER CURIAM.
In these wrongful death actions, Ronald W. Kirk, as the personal representative of the
estate of Ronald Nauman, deceased, (defendant) appeals as of right the order denying his three
motions for summary disposition under MCR 2.116(C)(7). We reverse and remand for entry of
an order granting defendant summary disposition in each case.
I
These consolidated appeals arise from a fire that occurred on April 1, 2000, on the eighth
floor of an apartment building. Initially, the Detroit Fire Department dispatched two trucks as a
"still alarm," for investigative purposes. One of these trucks was originally an aerial ladder
truck; however, the aerial ladder was condemned because of a leak in the hydraulic system on
March 20, 2000. The truck remained in service to haul manpower and equipment. Upon arrival
of the two trucks, additional fire trucks were immediately dispatched, and additional requests for
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vehicles were sent on third and fourth alarms. Ultimately, smoke inhalation caused the deaths of
Annette Eggleston (Docket No. 248360), Jeannette Ausby (Docket No. 248362), and Norfessia
Shannon and her daughter, Au Jane Wright (Docket No. 248361). Norfessia Shannon's second
daughter, Daree Shannon, jumped from an eighth-floor window. She survived; however, her
injuries from the fall resulted in quadriplegia.
The personal representatives of the estates of the deceased (plaintiffs) filed suit against
Ronald Nauman, chief of the fire fighting division of the Detroit Fire Department, who
subsequently died. Defendant, as the personal representative of Nauman's estate, moved for
summary disposition under MCR 2.116(C)(7) in each case, arguing that Nauman was entitled to
governmental immunity. The trial court denied the motions, determining that issues of fact
remained relating to duty and causation. These appeals by defendant ensued.
II
This Court reviews de novo a trial court's ruling on a motion for summary disposition.
Glancy v Roseville, 457 Mich 580, 583; 577 NW2d 897 (1998). MCR 2.116(C)(7) tests whether
a claim is barred by immunity granted by law. This Court must consider all documentary
evidence submitted by the parties. Id., citing Wade v Dep't of Corrections, 439 Mich 158, 162;
483 NW2d 26 (1992). The plaintiff's pleadings are accepted as true and construed in his favor.
Gilliam v Hi Temp Products, Inc, 260 Mich App 98, 109; 667 NW2d 856 (2003). When the
material facts are not disputed, the issue becomes whether the defendant is entitled to a judgment
based on immunity as a matter of law. Id. The question whether a party owes an actionable
legal duty is a question of law, which this Court reviews de novo. Cipri v Bellingham Frozen
Foods, Inc, 235 Mich App 1, 14; 596 NW2d 620 (1999).
III
Defendant first argues that Nauman owed no duty to the injured parties and was entitled
to governmental immunity. We agree.
MCL 691.1407(2)(c) governs the gross negligence exception to the general tort liability
immunity enjoyed by government employees. "Under MCL 691.1407(2), a municipal employee
is immune from tort liability if: (1) the employee reasonably believes that his actions are within
the scope of his authority; (2) the employee is discharging a governmental function; and (3) the
employee's 'conduct does not amount to gross negligence that is the proximate cause of the injury
or damage.'" Dean v Childs, 262 Mich App 48, 57; 684 NW2d 894 (2004), quoting MCL
691.1407(2)(c). The statute defines "gross negligence" as "conduct so reckless as to demonstrate
a substantial lack of concern for whether an injury results." MCL 691.1407(2)(c).
Summary disposition of a gross negligence claim pursued under MCL 691.1407(2) is
warranted if the plaintiff fails to establish a duty in tort. Beaudrie v Henderson, 465 Mich 124,
130; 631 NW2d 308 (2001). A duty may be created expressly by statute, or it may arise under
the common law. Walker v City of Flint, 213 Mich App 18, 22: 539 NW2d 535 (1995).
Plaintiffs claim that Nauman's statutory duty arose from the Detroit Home Rule Charter.
Specifically, plaintiffs cite §§ 7-802 and 7-803, which provide:
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Sec. 7-802. Departmental divisions.
Subject to the approval of the mayor, the fire commissioner shall appoint a
chief of the fire department from the board of fire chiefs of the fire fighting
division. The chief serves at the pleasure of the fire commissioner. The chief
shall serve as the director of operations for the fire fighting division.
Two deputy fire chiefs shall be appointed by the fire commissioner from
the ranks of the assistant chiefs and serve at the pleasure of the fire commissioner.
A fire marshal shall be appointed by and serve at the pleasure of the fire
commissioner.
Sec. 7-803. Duties.
The fire department shall protect life and property from fire and enforce
all laws, ordinances and regulations relating to fire prevention and safety within
the city.
Plaintiffs argue that these sections create a legal duty on the part of the fire chief to protect all
citizens of Detroit from fire and to make sure that the fire equipment is in working order. The
prevailing rules of statutory construction apply to home rule charters. Detroit v Walker, 445
Mich 682, 690-691; 520 NW2d 135 (1994).
We find that the plain and unambiguous language of the charter does not create a duty on
the part of the chief of the fire fighting division. As it concerns the fire chief, § 7-802 does
nothing more than describe the fact that the charter creates this position. Section 7-803
specifically states that the fire department "shall protect life and property" and makes no
reference to the position or duties of the fire chief. As such, by their plain language, neither
section creates a duty applicable to the fire chief.
Plaintiffs also cannot show a common-law duty owed by Nauman to the decedents and
Daree Shannon. It is undisputed that Nauman never met, spoke, or dealt with the decedents or
Shannon. It is undisputed that Nauman did not go to the fire scene and did not participate in the
firefighting or in any decision relating to the fire on that day. Generally, absent a special
relationship, a party has no duty to take actions to benefit a third party. Murdock v Higgins, 454
Mich 46, 54; 559 NW2d 639 (1997). Plaintiffs argue that such a special relationship existed
because the injured parties entrusted themselves to the Detroit Fire Department for their fire
protection, and that, as chief of the fire fighting division, Nauman was equally entrusted with
their fire protection. However, special relationships only exist where a party entrusts himself to
the protection and control of another and, in doing so, that party loses the ability to protect
himself. There is no evidence, and plaintiffs do not argue, that the injured parties completely
turned themselves over to Nauman for all their fire protection or that they were completely
incapable of protecting themselves, and, therefore, no special relationship existed. Without a
special relationship, this Court may not impose a duty. Id. at 54-55.
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In the absence of a duty, the trial court erred by denying summary disposition for the
defendant on the gross negligence claims. Beaudrie, supra at 130. Because of our resolution of
this issue, it is unnecessary for us to address the remaining arguments raised on appeal.
Reversed and remanded for the entry of orders granting summary disposition in
defendant's favor. We do not retain jurisdiction.
/s/ Kurtis T. Wilder
/s/ Joel P. Hoekstra
/s/ Donald S. Owens
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