LEONARD JOHN WOLONS V CHARLES WILLIAM DONALDSONAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
LEONARD JOHN WOLONS and KATHY
July 24, 1998
Wayne Circuit Court
LC No. 94-411517-NI
CHARLES WILLIAM DONALDSON,
Before: Corrigan, C.J., Wahls, P.J., and Markey, J.
This automobile negligence action is before us on remand from the Supreme Court for
reconsideration in light of Gibbons v Caraway, 455 Mich 314; 565 NW2d 663 (1997). We
previously issued an order affirming the trial court’s decision granting defendant’s motion for summary
disposition pursuant to MCR 2.116(C)(8) and (10). Wolons v Donaldson, unpublished order of the
Court of Appeals, entered June 4, 1996 (Docket No. 182415). We reverse and remand.
Plaintiff Leonard Wolons, a police officer, was injured while on duty when his police car
collided with a vehicle driven by defendant, who allegedly was intoxicated. Plaintiffs filed suit against
defendant, alleging negligence and loss of consortium. Defendant moved for summary disposition,
asserting that plaintiffs’ cause of action was barred by the fireman’s rule. Defendant’s motion was
granted pursuant to MCR 2.116(C)(8) and (10).
A motion for summary disposition brought under MCR 2.116(C)(8) tests the legal sufficiency of
a claim and is reviewed de novo. Stott v Wayne County, 224 Mich App 422, 426; 569 NW2d 633
(1997), lv pending. When reviewing a motion under MCR 2.116(C)(8), this Court accepts as true all
factual allegations and any reasonable inferences drawn from them in support of the claim. Id.
Summary disposition for failure to state a claim should be upheld only when the claim is so clearly
unenforceable as a matter of law that no factual development could establish the claim and thus justify
This Court reviews de novo the grant of summary disposition pursuant to MCR 2.116(C)(10),
examining the entire record, including pleadings, affidavits, depositions, admissions, and other
documentary evidence, and construing all reasonable inferences arising from the evidence in a light most
favorable to the nonmoving party. Henderson v State Farm Fire & Casualty Co, 225 Mich App
703, 708; 572 NW2d 216 (1997), lv pending. A motion for summary disposition pursuant to MCR
2.116(C)(10) may be granted when, except with regard to the amount of damages, there is no genuine
issue regarding any material fact and the moving party is entitled to judgment as a matter of law. The
trial court must ask whether a record might be developed that leaves open an issue upon which
reasonable minds could differ. Id. The trial court may not make factual findings or weigh credibility in
deciding a motion for summary disposition, and this Court will uphold the grant of summary disposition if
it is satisfied that the claim or defense cannot be proved at trial. Id. at 709.
The fireman’s rule prevents police officers and fire fighters from recovering for injuries sustained
in the course of duty.1 Woods v City of Warren, 439 Mich 186, 190; 482 NW2d 696 (1992). The
rule’s scope encompasses both injuries resulting from the negligence that caused the incident requiring a
safety officer’s presence and injuries resulting from those risks inherent in fulfilling the police or fire
fighting duties. Id. at 195. In determining whether the rule should be applied, the analytical focus must
be on whether the injury stems directly from an officer’s police functions. Id. at 193.
In our original decision affirming the trial court’s grant of summary disposition for defendant, we
relied on Stehlik v Johnson (On Rehearing), 206 Mich App 83; 520 NW2d 633 (1994). In Stehlik,
the plaintiff police officer was assigned to traffic enforcement and his duties were to patrol his precinct
area for traffic violations. He w in the area that he patrolled at the time he was injured in a traffic
accident. Id. at 87. Stating that “the risk of a traffic accident is inherent in fulfilling the duties of a police
officer . . . assigned to traffic enforcement,” the Court found that the circumstances of the case indicated
that the officer’s injury stemmed directly from his duty as a traffic enforcement officer and that his claim
was barred by the fireman’s rule. Id.
In Gibbons, supra, the plaintiff police officer was on duty directing traffic around an accident
scene when he was struck by an automobile driven by the defendant. The Supreme Court held that the
risks inherent in the plaintiff’s fulfillment of his police duties did not include all possible risks that could
arise in the situation. Gibbons, supra at 325. Because the fireman’s rule is not a license to act with
impunity, without regard for the safety officer’s well-being, Kreski v Modern Wholesale Electric
Supply Co, 429 Mich 347, 372; 415 NW2d 178 (1987), the Supreme Court held that the defendant’s
allegedly negligent operation of her automobile, which occurred after the plaintiff was on the scene and
which was alleged to have been wanton, reckless, careless, negligent, or grossly negligent, precluded
any ruling as a matter of law at that stage of the proceedings that the plaintiff’s claims were barred by
the fireman’s rule. Gibbons, 455 Mich 325-326.
This Court recently considered the wilful and wanton exception to the fireman’s rule in a case
similar to the one at bar. In Miller v Inglis, 223 Mich App 159; 567 NW2d 253 (1997), the
defendant was operating his vehicle while under the influence of alcohol when he collided with the
plaintiff police officer’s patrol car. At the time of the accident, the officer was transporting a prisoner
and had stopped at the site of a car accident. In reviewing the trial court’s grant of summary disposition
in favor of the defendant based on the fireman’s rule, this Court considered whether an intoxicated
driver who causes injury to a police officer is considered to have engaged in conduct that is sufficiently
wilful and wanton to fall within the “wilful and wanton” exception. This Court rejected the plaintiff’s
claim that she was acting in the role of an ordinary citizen. Id. at 165. The panel noted that the plaintiff
was on duty transporting a prisoner, that the accident occurred during her working hours, that she
activated the overhead lights and flashers on her patrol car when she pulled over, and that her car was
struck while she was assisting in clearing the scene. Id. Under the circumstances, the Court found that
the plaintiff was “obviously engaged in a classic police function at the time of the accident.” Id.
However, the Court recognized that courts have created a variety of exceptions to the fireman’s rule,
including the wilful, wanton, or intentional misconduct exception, which provides that a tortfeasor who
intentionally harms a police officer or fire fighter should not benefit from the common-law bar. Id. See
also McAtee v Guthrie, 182 Mich App 215; 451 NW2d 551 (1989).
The panel in Miller declined to hold that any time an intoxicated defendant injures a police
officer, the fact of intoxication alone automatically requires the conclusion that the defendant engaged in
wilful and wanton misconduct. However, the panel also rejected the trial court’s opposite holding that
intoxication automatically precludes the possibility of finding wilful and wanton misconduct. Miller,
supra at 167. Rather, the Court held that the behavior of some defendants who become intoxicated
may be so reckless as to constitute wilful and wanton conduct sufficient to remove the bar of the
fireman’s rule and thereby allow a police officer to sue for injuries. Id.2 Because the trial court
dismissed the case before addressing this narrow issue, the panel in Miller concluded that the record
was insufficient to determine whether the conduct of the defendant reached the requisite level of wilful
and wanton misconduct to trigger the exception to the fireman’s rule, and reversed and remanded the
case to the trial court. Id. at 167-168.
Like the police officer in Miller, plaintiff was engaged in a classic police function at the time of
the accident. According to his deposition: (1) he was driving on routine patrol in his assigned patrol
area at the time of his injury; (2) he was looking for suspicious activity or speeders while he drove; (3)
he had made some traffic stops during that night’s patrol; and (4) road patrol was his routine police
activity. Because the risk of a traffic accident is inherent in fulfilling the duties of a police officer assigned
to traffic enforcement, Stehlik, supra at 87, the circumstances of this case indicate that plaintiff’s injury
stemmed directly from his duty as a traffic enforcement officer. However, like the driver-defendant in
Miller, defendant is alleged to have been intoxicated at the time his car collided with plaintiff’s patrol
car. As in Miller, the record is insufficient to determine whether defendant’s conduct reached the
requisite level of wilful and wanton misconduct to warrant application of the exception to the fireman’s
rule.3 Therefore, we remand this case to the trial court for a determination of whether defendant’s
actions constitute wilful and wanton conduct sufficient to qualify as an exception to the fireman’s rule.
Reversed and remanded. We do not retain jurisdiction.
/s/ Maura D. Corrigan
/s/ Myron H. Wahls
/s/ Jane E. Markey
We note that our state legislature is considering a bill that would abolish the fireman’s rule.
In a footnote, the Court noted that one or more of the following factors could lead a court to conclude
that the conduct was sufficiently wilful and wanton to preclude the litigation bar of the fireman’s rule: the
intoxicated driver-defendant (1) is a repeat offender, (2) drinks heavily but is sufficiently lucid to know
he is driving under the influence, or (3) drives recklessly in an area with a lot of traffic in utter disregard
of other motorists’ safety. Miller, supra at 167, n 3.
Although defendant argues that there is no factual basis for a drunk driver exception in this case
because no evidence was presented to the trial court that he was a drunk driver, the factual allegations
in plaintiffs’ complaint must be accepted as true under MCR 2.116(C)(8), Stott, supra at 426, and the
facts must be viewed in the light most favorable to plaintiff as the nonmoving party pursuant to MCR
2.116(C)(10). Henderson, supra at 708.