DONALD J ENBODY V CHRISTOPHER B ACKLEY
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STATE OF MICHIGAN
COURT OF APPEALS
DONALD JAMES ENBODY,
UNPUBLISHED
January 12, 1999
Plaintiff-Appellant,
v
CHRISTOPHER BRENT ACKLEY and GLEN J.
ACKLEY,
Defendants-Appellees.
No. 199953
Kent Circuit Court
LC No. 96-003651 NI
AMENDED
Before: MacKenzie, P.J., and Bandstra and Markman, JJ.
PER CURIAM.
Plaintiff Donald James Enbody appeals as of right a trial court order granting defendants’ motion
for summary disposition pursuant to MCR 2.116(C)(8) and MCR 2.116(C)(10). The trial court
granted summary disposition on the basis of the ‘fireman’s rule,’ which bars recovery by public safety
personnel for injuries sustained in the course of duty. We reverse and remand for trial.
Plaintiff is a volunteer fire fighter and rescue worker for the Oakfield Township Volunteer Fire
Department. On August 15, 1993, he received a dispatch call at his home regarding a possible
drowning incident at a nearby pool. Plaintiff immediately responded to the call, turned on the overhead
lights and siren on his vehicle and proceeded toward the incident site. En route, his vehicle was hit just
behind the driver’s door by a vehicle operated by defendant Christopher Ackley and owned by
defendant Glen Ackley.1 Plaintiff stated that as he approached a curved, gravel section of Stacey Road,
he was traveling only twenty-five to thirty miles per hour.2 Defendant’s car, containing defendant and
three friends, approached the curve from the opposite direction. Plaintiff stated that defendant lost
control of his vehicle, crossed the center of the unmarked road and struck his vehicle, even though he
attempted to avoid the accident by moving to the shoulder of the road. Defendant disagrees and claims
that he did not cross the center of the road.
After the accident, plaintiff began to suffer from pain in his neck and arm. He subsequently
brought this negligence suit against defendants, and in response defendants filed a motion for summary
disposition on the basis of the ‘fireman’s rule’. The trial court granted summary disposition to
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defendants pursuant to MCR 2.116(C)(8) and (C)(10), stating, “I have to conclude that going to the
scene of a fire or a rescue, in this case a drowning person that he was going to try to revive, is inherent
to being a fireman.”
This court reviews decisions on motions for summary disposition de novo to determine if the
moving party was entitled to judgment as a matter of law. Stehlik v Johnson (On Rehearing), 206
Mich App 83, 85; 520 NW2d 633 (1994).
MCR 2.116(C)(8) permits summary disposition when the opposing party has failed to
state a claim upon which relief can be granted. A motion under this subsection
determines whether the opposing party’s pleadings allege a prima facie case. The court
must accept as true all well-pleaded facts. Only if the allegations fail to state a legal
claim is summary disposition pursuant to MCR 2.116(C)(8) valid.
***
MCR 2.116(C)(10) permits summary disposition when, except for the amount of
damages, there is no genuine issue concerning any material fact and the moving party is
entitled to [judgment] as a matter of law. A court reviewing such a motion must
consider the pleadings, affidavits, depositions, admissions, and any other evidence in
favor of the opposing party and grant the benefit of any reasonable doubt to the
opposing party. [Id.]
The common law ‘fireman’s rule’ was adopted in Michigan in Kreski v Modern Wholesale
Electric Supply Co, 429 Mich 347, 370; 415 NW2d 178 (1987). The ‘fireman’s rule’ prevents
police officers and fire fighters from recovering for injuries sustained in the course of duty. Id. at 371.
The Supreme Court adopted this rule mainly on the basis of “the foundational policy rationale that the
purpose of safety professions is to confront danger and, therefore, the public should not be liable for
damages for injuries occurring in the performance of the very function police officers and fire fighters are
intended to fulfill.” Id. at 368. Generally, the rule applies to two types of injuries: (1) “those deriving
from the negligence [requiring] the safety officer’s presence;” and (2) “those stemming from the normal
risks of the safety officer’s profession.” Woods v City of Warren, 439 Mich 186, 196; 482 NW2d
696 (1992). The focus must be on whether the injury stems directly from the safety officer’s
professional functions. Id. at 193. Nevertheless, since case-by-case analysis of this issue requires
“balanc[ing] the underlying rationales with the interest of allowing recovery when those rationales are not
implicated,” Kreski, supra at 371, the ‘fireman’s rule’ may not apply where the policy rationales are
not applicable. McCaw v T & L Operations, Inc, __ Mich App __; __ NW2d __ (Docket No.
206722, issued 6/23/98).
Accordingly, we must first determine whether the policy rationale behind the ‘fireman’s rule’ is
implicated by the instant circumstances involving a person in plaintiff’s position, that of a volunteer fire
fighter and rescue worker. The Supreme Court recently addressed this issue directly in Roberts v
Vaughn, __ Mich __; __ NW2d __ (Docket No. 105364, released 12/28/98). In this case, the Court
reversed the Court of Appeals, which held that the ‘fireman’s rule’ did extend to volunteer fire fighters.
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Roberts v Vaughn, 214 Mich App 625, 630; 543 NW2d 79 (1995). The Supreme Court stated that
it did not agree with the Court of Appeals determination that no valid distinction existed between
professional and volunteer firefighters:
[N]o duty is owed [by the public] for ordinary negligence because professional safety
officers are presumably extensively trained and specially paid to confront dangerous
situations in order to protect the public, and that, therefore, these safety officers
undertake their profession with the knowledge that their personal safety is at risk.
Because of the unique relationship between the public, and safety officer, and those
third parties who require the services of the officer, the otherwise applicable duty of
care toward the safety officer is replaced by the third party’s contribution to tax
supported compensation for those services: when injury occurs, liberal compensation is
provided. This relationship is clearly missing between an uncompensated volunteer
firefighter and a third party. [Roberts, supra, __ Mich __, slip op at 6-7 (footnotes
omitted).]
Thus, the Supreme Court held that the ‘fireman’s rule’ should not bar recovery for injuries sustained by
a volunteer safety officer. Applying such holding to the case at issue here, we find that the trial court
improperly granted summary disposition in favor of defendants on the basis of the ‘fireman’s rule,’
barring recovery for injuries sustained by a volunteer fire fighter. Instead, the ‘fireman’s rule’ does not
apply to plaintiff as a volunteer fire fighter, and any possible recovery for injuries must not be barred on
the basis of such rule.
For this reason, we reverse the trial court’s grant of summary disposition in this case and
remand for further proceedings consistent with this opinion.
Reversed and remanded. We do not retain jurisdiction.
/s/ Barbara B. MacKenzie
/s/ Richard A. Bandstra
/s/ Stephen J. Markman
1
“Defendant” hereafter refers to Christopher Ackley.
2
Plaintiff stated that he may have reached speeds up to sixty miles per hour while driving on one road,
then turned on to another road on which he drove up to forty-five miles per hour. Once he reached
Stacey Road, he was driving only twenty-five to thirty miles per hour. We have no evidence regarding
the legal speed limits on these roads.
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