MARIE DEAN V DAVID FORD
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STATE OF MICHIGAN
COURT OF APPEALS
MARIE DEAN, Personal Representative of the
Estates of TALEIGHA MARIE DEAN, Deceased,
AARON JOHN DEAN, Deceased, CRAIG
LOGAN DEAN, Deceased, and EUGENE
SYLVESTER, Deceased,
FOR PUBLICATION
May 13, 2004
9:05 a.m.
Plaintiff-Appellee,
v
JEFFREY CHILDS and CHARTER TOWNSHIP
OF ROYAL OAK,
Defendants-Appellants.
No. 244627
Oakland Circuit Court
LC No. 01-029844-NO
Official Reported Version
Before: Cooper, P.J., and Griffin and Borrello, JJ.
COOPER, P.J.
Defendants Jeffrey Childs and the Charter Township of Royal Oak (the township) appeal
by leave granted, following remand from our Supreme Court, the trial court's order partially
denying their motion for summary disposition.1 We affirm the trial court's denial of Childs's
motion with regard to the state law claims, reverse the denial of the township's motion with
regard to the failure to train claim pursuant to 42 USC 1983, and remand for further proceedings.
I. Facts and Procedural History
On April 6, 2000, plaintiff 's home in Royal Oak Township was set on fire, allegedly by
an arsonist. The fire was initially limited to the front of the house. Plaintiff successfully escaped
while a firefighter attempted to rescue her four children, who were trapped in the rear of the
home. Childs2 ignored a fire hydrant directly across the street from the burning home, choosing
1
We denied defendants' application for leave to appeal in Dean v Ford, unpublished order of the
Court of Appeals, issued August 2, 2002 (Docket No. 240573). In lieu of granting leave to
appeal, the Supreme Court remanded the matter to this Court in Dean v Ford, 467 Mich 898
(2002).
2
At the time, the position of fire chief was vacant. Childs was the Shift Supervisor and the top
appointed official due to the vacancy.
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instead to connect to a hydrant a block away. Although Childs was informed of the rescue
attempt at the rear of the home, he ordered the fire crew to fight the fire by shooting water at the
front of the home. This action immediately forced the fire and smoke toward the rear of the
home. Plaintiff claims that the action destroyed any hope of rescuing the children. All four
children perished in the fire.
In her third amended complaint, plaintiff alleged that Childs was grossly negligent and
that his actions were the proximate cause of her children's deaths. Specifically, plaintiff alleged
that Childs took "affirmative actions that significantly increased the risk of danger" to plaintiff
by driving to a distant fire hydrant and by preventing the rescue of the Dean children by forcing
the fire toward the rear of the house. Plaintiff further alleged that both defendants deprived her
of life and liberty without due process of law in violation of the Fourteenth Amendment and 42
USC 1983, and that their actions showed "deliberate indifference to the risk of injury or death"
and the safety of others. Specifically, plaintiff alleged that the township knowingly failed to
adequately staff, fund, and train its fire department.
Defendants thereafter moved for summary disposition pursuant to MCR 2.116(C)(7) and
MCR 2.116(C)(8), which the trial court granted in part.3 The trial court dismissed all claims
against Childs under 42 USC 1983, because "there was no clearly established constitutional right
to any particular level of competence in fighting fires."4 The trial court also dismissed plaintiff 's
§ 1983 claims against the township regarding its failure to adequately fund and staff its fire
department. Plaintiff 's failure to train claim against the township was left intact, as that issue
"was not raised or addressed" in defendant's motion for summary disposition. The trial court
denied defendants' motion with regard to the state law wrongful death claims against Childs.5
II. Legal Analysis
We review a trial court's determination regarding a motion for summary disposition de
novo.6 A motion under MCR 2.116(C)(7) "tests whether a claim is barred because of immunity
granted by law, and requires consideration of all documentary evidence filed or submitted by the
parties."7 A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim based on the
pleadings alone and should be granted only if the factual development of the claim could not
justify recovery.8
3
We note that plaintiff has not challenged those rulings adverse to her.
4
Opinion and order granting summary disposition, p 2, citing Saucier v Katz, 533 US 194; 121 S
Ct 2151; 150 L Ed 2d 272 (2001).
5
Opinion and order granting summary disposition; opinion and order clarifying opinion and
order granting summary disposition.
6
Beaudrie v Henderson, 465 Mich 124, 129; 631 NW2d 308 (2001).
7
Maskery v Univ of Michigan Bd of Regents, 468 Mich 609, 613; 664 NW2d 165 (2003),
quoting Glancy v Roseville, 457 Mich 580, 583; 577 NW2d 897 (1998).
8
Beaudrie, supra at 129-130.
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A. 42 USC 1983
The power of citizens to sue the state for a deprivation of their civil rights is granted in 42
USC 1983. The statute provides in part:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia, subjects,
or causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress.[9]
The only remaining claim pursuant to § 1983 is that the township deprived plaintiff of life and
liberty without due process of law under the Fourteenth Amendment in that its failure to properly
train its fire department was the proximate cause of her children's deaths.
To establish a § 1983 claim, the facts, viewed in the light most favorable to the plaintiff,
must show that a constitutional violation occurred.10 If a violation is found, the court must then
determine "whether the violation involved 'clearly established constitutional rights of which a
reasonable person would have known.'"11 If no constitutional violation occurred, the defendant
has qualified immunity from liability.12 "Qualified immunity is 'an entitlement not to stand trial
or face the other burdens of litigation.'"13
The township asserts that plaintiff has failed to show a constitutional violation based on
the United States Supreme Court's decision in DeShaney v Winnebago Co Dep't of Social
Services.14 According to DeShaney, the Due Process Clause does not confer an affirmative right
to governmental aid, including protective services, even if the aid is necessary to secure life,
liberty or property.15 There are two exceptions to this general rule. First, when the government
places a person in custody, thereby preventing him from protecting himself, a special
relationship is created. This special relationship places the government under a heightened duty
to protect that person.16 Second, the government has a duty to protect under the "state-created
9
42 USC 1983.
10
Ewolski v Brunswick, 287 F3d 492, 501 (CA 6, 2002).
11
Id.
12
Saucier, supra at 201.
13
Id. at 200, quoting Mitchell v Forsyth, 472 US 511, 526; 86 L Ed 2d 411; 105 S Ct 2806
(1985).
14
DeShaney v Winnebago Co Dep't of Social Services, 489 US 189; 109 S Ct 998; 103 L Ed 2d
249 (1989).
15
Id. at 196.
16
Id. at 198-200.
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danger theory" when the government either created the danger or took actions rendering the
person more vulnerable to the danger.17
Plaintiff 's claim clearly does not fall into the first DeShaney exception, as the Dean
children were not in the custody of the township at the time of their deaths. Therefore, the issue
before us is whether the township created the danger or rendered plaintiff more vulnerable to
harm by failing to adequately train its fire department. To establish a claim under the statecreated danger theory, a plaintiff must show
1) an affirmative act by the state which either created or increased the risk that the
plaintiff would be exposed to an act of violence by a third party; 2) a special
danger to the plaintiff wherein the state's actions placed the plaintiff specifically
at risk, as distinguished from a risk that affects the public at large; and 3) the state
knew or should have known that its actions specifically endangered the
plaintiff.[18]
The Sixth Circuit has held that the failure to act cannot form an affirmative act to support
a state-created danger.19 However, the United States Supreme Court has held that a municipality
may be liable under § 1983 for the failure to train municipal employees under certain
circumstances.20 In Canton v Harris, the Supreme Court held "that the inadequacy of police
training may serve as the basis for § 1983 liability only where the failure to train amounts to
deliberate indifference to the rights of persons with whom the police come into contact."21 The
inadequate training must represent a "city policy," which the Harris Court described as follows:
It may seem contrary to common sense to assert that a municipality will
actually have a policy of not taking reasonable steps to train its employees. But it
may happen that in light of the duties assigned to specific officers or employees
the need for more or different training is so obvious, and the inadequacy so likely
to result in the violation of constitutional rights, that the policymakers of the city
can reasonably be said to have been deliberately indifferent to the need. In that
event, the failure to provide proper training may fairly be said to represent a
policy for which the city is responsible, and for which the city may be held liable
if it actually causes injury.[22]
17
Id. at 201.
18
Cartwright v Marine City, 336 F3d 487, 493 (CA 6, 2003), citing Kallstrom v Columbus, 136
F3d 1055, 1066 (CA 6, 1998).
19
Id., citing Sargi v Kent City Bd of Ed, 70 F3d 907, 912-913 (CA 6, 1995).
20
Canton v Harris, 489 US 378, 380; 109 S Ct 1197; 103 L Ed 2d 412 (1989).
21
Id. at 388.
22
Id. at 390 (internal footnotes omitted).
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Although the plaintiff in Harris was in police custody, failure to train has since been
recognized as a valid cause of action in noncustodial situations.23 However, in a noncustodial
situation, the government action often relates to an emergency service, which must, by necessity,
be carried out quickly without deliberation.24 The standard is, therefore, much higher than
deliberate indifference. A plaintiff must prove that the government action showed an affirmative
intent to cause harm.25 Unfortunately, plaintiff failed to properly plead her § 1983 claim
regarding the township's failure to train its fire department. Plaintiff alleged that the township's
actions showed "deliberate indifference" to the safety of others. This standard is insufficient to
meet the burdensome requirements of a § 1983 state-created danger claim in a noncustodial
situation. Therefore, we are compelled to reverse the trial court's partial denial of summary
disposition with regard to the township.
B. State Law Claims
As we noted supra, the trial court denied Childs's motion for summary disposition with
regard to plaintiff 's state law wrongful death claims. Childs asserted both a statutory and
common-law basis for immunity from liability.
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."26 "Gross
negligence" is defined in the statute as "conduct so reckless as to demonstrate a substantial lack
of concern for whether an injury results."27
Plaintiff presented evidence of Childs's gross negligence through the affidavit of
firefighter John Soave. Soave stated that Childs ignored a fire hydrant in the immediate area in
favor of one a block away and ordered water shot at the front of the home, forcing fire and
smoke into the rear of the home despite the knowledge that a firefighter was attempting to rescue
23
See Holiday v Kalamazoo, 255 F Supp 2d 732, 736 (WD Mich, 2003), citing Berry v Detroit,
25 F3d 1342, 1345 (CA 6, 1994) (involving allegation that city's failure to train regarding use of
deadly force resulted in individual's death during an arrest), Russo v Cincinnati, 953 F2d 1036,
1045-1046 (CA 6, 1992) (involving allegations that individual's death during arrest resulted from
city's inadequate training regarding the mentally ill and the use of excessive force); Hill v
McIntyre, 884 F2d 271 (CA 6, 1989) (involving allegations that the city failed to properly train
its officers in the method of obtaining search warrants).
24
Bukowski v Akron, 326 F3d 702, 710 (CA 6, 2003).
25
See Sacramento v Lewis, 523 US 833, 854; 118 S Ct 1708; 140 L Ed 2d 1043 (1998)
(government action must show intent to harm or worsen condition); Claybrook v Birchwell, 199
F3d 350, 359 (CA 6, 2000) (government actions must have been malicious, sadistic, and "for the
very purpose of causing harm").
26
MCL 691.1407(2).
27
MCL 691.1407(2)(c).
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the children from that area. This conduct can fairly be described as "so reckless as to
demonstrate a substantial lack of concern for whether an injury results."
Furthermore, plaintiff presented evidence that Childs's conduct was "the proximate
cause" of the children's deaths. "The proximate cause" has been defined as "the one most
immediate, efficient, and direct cause preceding an injury, not 'a proximate cause.'"28 Soave
stated in his affidavit that Childs caused the fire "to be pushed" toward the children and
prevented the rescue attempt. While it is likely that the arsonist was "a proximate cause" of the
children's deaths, plaintiff 's evidence, if proven, would show that the children would have
survived the fire if Childs had not acted in a grossly negligent manner. As the factual
development of plaintiff 's claim may justify recovery, the trial court properly denied Childs's
motion for summary disposition on the ground of statutory immunity.
Childs claims common-law immunity under the public duty doctrine. Our Supreme
Court has defined the public duty doctrine as follows:
[I]f 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.[29]
In Beaudrie v Henderson, our Supreme Court expressly limited the protection of the
public duty doctrine to police officers.30 The liability of all other municipal employees "should
be determined using traditional tort principles without regard to the defendant's status as a
government employee."31 Therefore, Childs is not entitled to the protection of this doctrine and
the trial court properly denied his motion for summary disposition on the ground of common law
immunity.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
Borrello, J., concurred.
/s/ Jessica R. Cooper
/s/ Stephen L. Borrello
28
Robinson v Detroit, 462 Mich 439, 445-446; 613 NW2d 307 (2000).
29
White v Beasley, 453 Mich 308, 316; 552 NW2d 1 (1996), quoting 2 Cooley, Torts (4th ed), §
300, pp 385-386.
30
Beaudrie, supra at 134.
31
Id.
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