SCHEHERAZDE C LOVE V CITY OF DETROIT
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STATE OF MICHIGAN
COURT OF APPEALS
FOR PUBLICATION
April 13, 2006
9:00 a.m.
SCHEHERAZDE C. LOVE, Personal
Representative of the Estates of MILIQUE J.
DIGGS, Deceased, DEYMOND L. DIGGS,
Deceased, LATIYA DIGGS, Deceased, and
GENTRY GARY TRESVANT, Deceased,
Plaintiff-Appellant,
v
CITY OF DETROIT, and DETROIT FIRE
DEPARTMENT MEMBERS CARL COOK,
HAROLD ACOFF, JEFFREY SCHLOMER,
ROBERT WOODS, CHIEF M. HASTINGS, LT.
BENSKY, F.E.O. ERKARD, S.F.F. HARTMAN,
F.F. MAKULSKI, SGT. GASEL, F.F. TOZER,
S.F.F. GERARDY, F.F. SANDERS, CAPT. DAVIS,
D.E. CARRINGTON, F.F. THORNTON, CAPT.
BARBARICH, F.E. MORTIER, F.F. SISAY, F.F. D.
TONTI, SGT. R. SMITH, F.E.O. M. O'BRIAN,
S.F.F. D. JOHNSON, SGT. P. LOPEZ, F.F.D. D.
EMANUEL, F.F. FIJOLEK, F.F. F. MCGARRY,
SGT. RICE, F.E.O. WILCOX, F.F. SMITH, T.F.F.
T. WHITE, LT. COLLINS, D.E. FRANKLIN, F.F.
SMITH, SGT. GRIFFITH, D.A. SUCORA, F.F.
NEERY, F.F. SZARAFINSKI, SR. CHIEF ANDRE,
SGT. E. VOSS, D.E. MCLEAN, F.F. DORIAS,
T.F.F. MULFORD, SGT. R. KUMMER, D.E.
SUMERACKI, F.F. H. WILSON, F.F.L. SPITZIG,
LT. G. WILLIAMS, F.E.O. D. ADAMSON, F.F. D.
DIXON, F.F. T. STALLWORTH, SGT.
MARSHALL, D.A. JOHNSON, F.F. HOSKINS,
SGT. WHITE, F.F.D. BROWN, F.F. POSH, F.F.
SCHNEIDER, LT. D. RICHARDSON, each and
every member of the DETROIT FIRE
DEPARTMENT assigned to E17 and E08 on
February 17, 1999, referred to herein as JOHN
DOES 1-12,
Defendants-Appellees.
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No. 257375
Wayne Circuit Court
LC No. 02-205765-NZ
Official Reported Version
Before: Cooper, P.J., and Jansen and Markey, JJ.
COOPER, P.J. (dissenting).
I respectfully dissent because I believe a genuine issue of material fact remains as to
whether defendants' alleged gross negligence, as an intervening and superseding cause, replaced
the arson as the proximate cause of the decedents' deaths. Summary disposition therefore being
an inappropriate resolution of this matter, I would reverse the circuit court's grant of summary
disposition to the individual defendants and remand for trial.
The parties do not dispute that, for purposes of the governmental immunity analysis in
this case, the individual defendants' response to the February 17, 1999, fire at 221 Watson in
Detroit occurred within the scope of their authority as firefighters and constituted the discharge
of a governmental function. MCL 691.1407(2)(a), (b). The issue is whether defendants' conduct
"amount[s] to gross negligence that is the proximate cause of the injury or damage." MCL
691.1407(2)(c). "Gross negligence" is "conduct so reckless as to demonstrate a substantial lack
of concern for whether an injury results." MCL 691.1407(7)(a). "The determination whether a
governmental employee's conduct constituted gross negligence under MCL 691.1407 is
generally a question of fact, but, if reasonable minds could not differ, a court may grant summary
disposition" as a question of law. Oliver v Smith, 269 Mich App 560, 563; ___ NW2d ___
(2006).
The affidavits plaintiff submitted in opposition to defendants' motion for summary
disposition1 include sufficient testimony to raise a genuine issue of material fact. Gwendolyn
Elizabeth Mingo, a neighbor of the decedents, stated that she called 911 as soon as she became
aware of the fire and that approximately 40 minutes passed from the time of her first call to the
arrival of the first Detroit Fire Department vehicle."2 The vehicle that arrived "was not equipped
to either fight fire or to save the people trapped inside of the house," and another 15 or 20
minutes passed before "a fully equipped fire truck" finally arrived.3
Barry Demings, a resident of 221 Watson who fled from the burning house, stated that
his escape "took a fairly long period of time," and that when he reached the front yard, he saw
several people with cell phones repeatedly calling 911, but that "at least another 20-30 minutes
1
Because defendants sought summary disposition pursuant to MCR 2.116(C)(7) and (10), "[t]he
affidavits, together with the pleadings, depositions, admissions, and documentary evidence then
filed in the action . . . must be considered by the court . . . ." MCR 2.116(G)(5).
2
According to Mingo's affidavit, during the 40-minute wait, she telephoned 911 "3 or 4 other
times."
3
The complaint asserted that after the equipped fire truck at last responded to the dispatch to 221
Watson, its negligent operation resulted "in an accident with one or more other motor vehicles,
thereby further delaying the arrival of needed Detroit Fire Department personnel and
equipment."
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passed before any vehicles from the fire department arrived." Demings estimated that another 15
minutes elapsed between the initial arrival of the useless fire department "van type truck" and the
arrival of a "fire-fighting" truck.
The statements of two other residents of 221 Watson who escaped the fire, Walter Louis
Petties and Ruth Ann Diggs, corroborated the key facts: the first fire department vehicle did not
arrive until approximately 20 minutes after they escaped the burning house; the first vehicle to
arrive was not equipped to fight fires or rescue anyone trapped inside; the first real fire truck did
not arrive until at least another 10 to 20 minutes had passed.
The delay was just the beginning, however. The affiants also all stated that the screams
of several children trapped in the fire could be heard from the street when the fire department
vehicles eventually arrived, but the firefighters took no action to save them. Ruth Ann Diggs
noted that when the equipped fire truck eventually arrived, its fire ladders "were never used," and
that the "firemen on this truck did nothing to save people in the house, refusing to follow laypeople in who were still assisting others." Diana Lilly Diggs, another resident who escaped from
the fire at 221 Watson, made these corroborating statements: "[t]he firemen on the second truck
never attempted to use their ladder, and could not immediately direct water onto the fire as they
lost control of the hose"; "[s]everal people urged the firemen to go into the house to save several
children, but no one would go in"; "[t]he children didn't have to die, but the firemen failed to
attempt to do anything which might have saved them."
Viewing the contents of the affidavits and all reasonable inferences in the light most
favorable to plaintiff, I find that a reasonable trier of fact could find that defendants' response to
the fire amounted to gross negligence. The affidavits indicate a delay of 40 to 60 minutes after
reports of the fire were made before a truck equipped to fight the fire and make rescue efforts
arrived. The affidavits also indicate that although the decedents were alive when defendants
finally arrived in the equipped fire truck, defendants inexplicably made no attempts to rescue
them, by ladder or otherwise. Although defendants eventually sprayed some water on the house,
according to Petties, this rescue effort occurred after the children apparently had succumbed to
the fire.
Accepting the affidavits as true, defendants acted with more than ordinary negligence.
This level of negligence contrasts sharply with ordinary negligence as it has appeared in similar
situations, for example where firefighters inadvertently searched in the wrong location for
children trapped by fire. See Costa v Community Emergency Medical Services, Inc, 263 Mich
App 572, 578; 689 NW2d 712 (2004) (explaining that evidence of ordinary negligence does not
create an issue of fact regarding gross negligence). The evidence that defendants knowingly
disregarded the peril of those trapped in the burning house establishes a genuine issue of fact
because a reasonable jury could determine that defendants were "so reckless as to demonstrate a
substantial lack of concern for whether an injury results," MCL 691.1407(7)(a). Oliver, supra at
565; Costa, supra at 579.
The majority does not reach the issue of gross negligence, but affirms the circuit court
grant of summary disposition to defendants in significant part due to reliance on Dean v Childs,
262 Mich App 48, 60-63; 684 NW2d 894 (2004) (Griffin, J., concurring in part and dissenting in
part), rev'd in part 474 Mich 914 (2005) (peremptorily reversing "for the reasons stated by
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dissenting . . . Judge Griffin"). Judge Griffin's partial dissent found that "the proximate cause" of
the deaths of plaintiff 's decedents was fire, and not a firefighter's alleged gross negligence. Id. at
61. Because the governmental immunity statute admits of only one proximate cause, "the" rather
than "a" proximate cause, the allegedly negligent firefighter was immune from suit. Id. at 63.
I dissent because I find Dean inapplicable here. As a threshold matter, the Supreme
Court's reversal of this Court's holding in Dean, which would have allowed a jury to decide
whether the firefighter's alleged gross negligence was the proximate cause of the deaths of the
four children who perished in the fire, was executed by peremptory order, the precedential value
of which is uncertain. Even if the order does have precedential value, Dean is distinguishable
from the analysis of this case. Neither Judge Griffin's dissent nor the Supreme Court's
peremptory order adopting it contains any analysis or reference to the simple principle of tort law
that an intervening, superseding occurrence can constitute the one most immediate, efficient, and
direct cause of an injury.
I. Precedential Value of Peremptory Order
The Michigan Constitution requires that "[d]ecisions of the supreme court . . . shall
contain a concise statement of the facts and reasons for each decision . . . ." Const 1963, art 6, §
6. Orders that include such facts and reasoning have been held to be binding precedent. People
v Crall, 444 Mich 463, 465 n 8; 510 NW2d 182 (1993); Dykes v William Beaumont Hosp, 246
Mich App 471, 483; 633 NW2d 440 (2001). However, where, as in Dean II, a peremptory order
includes no analysis of fact or law, it is unclear whether it applies beyond the contours of the
specific facts on which it is based. Merely adopting the reasons stated by the dissent in the lower
court does not give full or specific direction to the lower courts as a group as to what in the
dissent applies, or when, or how. Neither does it clarify which aspects of the lower court
majority opinion the Court views as incorrect, or whether incorrect as a matter of law or only
with respect to the particular facts of the case at issue.
In Dean, and in this case, questions both of fact and law persist.
II. Intervening/Superseding Cause may be the Proximate Cause
Even if the peremptory order in Dean is binding precedent in like cases, it is
distinguishable here, where a significant question not raised in Dean remains, that of intervening
and superseding causation. The majority affirms the circuit court's grant of summary disposition
to defendants on the basis that the arson, not any conduct of defendants, was the proximate cause
of the decedents' deaths. I believe, however, that the traditional and still valid principles of
intervening and superseding causation raise a question of fact as to whether the alleged gross
negligence replaces the arson as "the" proximate cause of the deaths at issue here.
If there may be only one proximate cause, then, where an intervening cause links directly
to the harm at issue, it arguably supplants prior causes and becomes "the" proximate cause: "If a
new force or power has intervened, of itself sufficient to stand as the cause of the mischief or
injury, the first must be considered as too remote." Borck v Michigan Bolt & Nut Works, 111
Mich 129, 133; 69 NW 254 (1896), citing a survey of proximate cause cases by Cooley, J., in
Lewis v Flint & Pere Marquette R Co, 54 Mich 55; 19 NW 744 (1884).
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What constitutes proximate cause in a given case is frequently a
troublesome one, and much discussion of the question appears in the
authorities. . . .
The conclusion to be drawn from an examination of all the authorities on
the question seems to be that the defendant may not be held liable for his original
negligent act unless that act produces the consequences for which recovery is
sought, without the intervention of any independent, unforeseen cause, without
which the injuries would not have occurred. If such cause intervenes, it may be
said that the wrong of the defendant is too remote to be made the basis of an
action. . . . [Calliari v Fisher, 190 Mich 56, 61; 155 NW 689 (1916).]
See also Stoll v Laubengayer, 174 Mich 701, 704-706; 140 NW 532 (1913).
"In order to be a superseding cause, thereby relieving a [prior] negligent defendant from
liability, an intervening force must not have been reasonably foreseeable." Ridley v Detroit, 231
Mich App 381, 389; 590 NW2d 69 (1998), remanded on other grounds sub nom Ridley v Collins,
463 Mich 932 (2000). Intervening causes that are reasonably foreseeable and therefore not
superseding causes include ordinary negligence, but not gross negligence:
The standard by which to gauge whether an intervening cause supersedes,
and thus severs the causal link, is generally one of reasonable foreseeability. For
example, suppose that a defendant stabs a victim and the victim is then taken to a
nearby hospital for treatment. If the physician is negligent in providing medical
care to the victim and the victim later dies, the defendant is still considered to
have proximately caused the victim's death because it is reasonably foreseeable
that negligent medical care might be provided. At the same time, gross
negligence or intentional misconduct by a treating physician is not reasonably
foreseeable, and would thus break the causal chain between the defendant and the
victim.
The linchpin in the superseding cause analysis, therefore, is whether the
intervening cause was foreseeable based on an objective standard of
reasonableness. If it was reasonably foreseeable, then the defendant's conduct
will be considered a proximate cause. If, however, the intervening act by the
victim or a third party was not reasonably foreseeable—e.g., gross negligence or
intentional misconduct—then generally the causal link is severed and the
defendant's conduct is not regarded as a proximate cause of the victim's injury or
death. [People v Schaefer, 473 Mich 418, 437-438; 703 NW2d 774 (2005).]
See also People v Cook, 39 Mich 236, 240 (1878) (Where a criminal act, here a shooting, is
followed by allegedly negligent treatment of the victim, "the accused will be held responsible,
unless [the victim's death] was occasioned, not by the wound, but by grossly erroneous medical
treatment.")
On the facts in this case, a delay of 40 to 60 minutes before firefighters equipped to fight
a fire or to begin rescue efforts arrived may certainly qualify as grossly negligent and, therefore,
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not reasonably foreseeable. Likewise, it may be unforeseeable gross negligence that firefighters,
when they did arrive, did nothing to assist those trapped inside. A question of fact as to whether
the intervening cause of the deaths was reasonably foreseeable therefore remains.
Whether an intervening act of negligence is a superseding proximate cause is a question
for the jury. May v Parke, Davis & Co, 142 Mich App 404, 419; 370 NW2d 371 (1985); Taylor
v Wyeth Laboratories, Inc, 139 Mich App 389, 401-402; 362 NW2d 293 (1984). With this jury
question as yet unanswered, summary disposition of plaintiff 's claims is inappropriate.
Taking the affidavits and other documentary evidence in the light most favorable to the
nonmoving party, here plaintiffs, issues of fact remain as to whether defendants were grossly
negligent and whether that negligence is a superseding cause of decedents' deaths. A jury might
conclude that defendants did not respond to the fire in a grossly negligent fashion or that even
had defendants arrived promptly they could not have saved the decedents, and, therefore, that the
fire itself constitutes "the one most immediate, efficient, and direct cause preceding" the
decedents' deaths. Robinson v Detroit, 462 Mich 439, 445-446; 613 NW2d 307 (2000).
However, a reasonable jury could also reach just the opposite conclusion. I dissent because the
majority removes the unresolved factual questions from the jury's consideration.
I would reverse and remand for trial.
/s/ Jessica R. Cooper
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