MARIE DEAN V DAVID FORD
Annotate this Case
Download PDF
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. 2001-029844-NO
Official Reported Version
Before: Cooper, P.J., and Griffin and Borrello, JJ.
GRIFFIN, J. (concurring in part and dissenting in part.)
I agree with the majority that plaintiff 's third amended complaint fails to state a claim on
which relief can be granted under 42 USC 1983. Canton v Harris, 489 US 378; 109 S Ct 1197;
103 L Ed 2d 412 (1989); DeShaney v Winnebago Co Dep't of Social Services, 489 US 189; 109
S Ct 998; 103 L Ed 2d 249 (1989); Monell v New York City Dep't of Social Services, 436 US
658; 98 S Ct 2018; 56 L Ed 2d 611 (1978). Accordingly, I concur in the result of reversing the
partial denial of defendant Charter Township of Royal Oak's motion for summary disposition.
MCR 2.116(C)(7) and MCR 2.116(C)(8).1
1
Plaintiff 's third amended complaint is conclusory, only, in regard to the claim that defendant
township acted with "deliberate indifference" in the training of its firefighters. Under our factbased pleading rules, MCR 2.111(B)(1), plaintiff 's factually unsupported conclusions are
inadequate to state a claim on which relief can be granted. Stann v Ford Motor Co, 361 Mich
225, 232-233; 105 NW2d 20 (1960); Binder v Consumers Power Co, 77 Mich App 343, 346347; 258 NW2d 221 (1977). Significantly, pursuant to the lower court's order of September 11,
(continued…)
-1-
However, in regard to plaintiff 's state law claims, I respectfully dissent. In my view, the
township acting fire chief, defendant Jeffrey Childs, is immune from liability pursuant to MCL
691.1407(2) because the factual support for plaintiff 's allegations is insufficient for a reasonable
juror to conclude that the alleged gross negligence2 of defendant Childs was "the proximate
cause" of the deaths of plaintiff 's decedents. MCR 2.116(C)(7) and MCR 2.116(C)(10).3
In Robinson v Detroit, 462 Mich 439; 613 NW2d 307 (2000), our Supreme Court held
that the phrase "the proximate cause" contained in the governmental immunity act, MCL
691.1407(2), means the proximate cause, not a proximate cause. Further, the Robinson Court
defined "the proximate cause" as "the most immediate, efficient, and direct cause preceding an
injury, not 'a proximate cause.'" Id. at 445-446.
The majority concludes, for purposes of withstanding the motion for summary
disposition, that plaintiff presented sufficient documentary evidence that defendant Childs's
gross negligence in fighting the fire may have been "the proximate cause" of the children's
deaths, rather than the fire itself. I disagree.
In opposing the motion for summary disposition, plaintiff relied heavily on the affidavit
of John Soave. In his affidavit, Soave stated that defendant Childs drove the fire engine to a fire
hydrant approximately one block away from the burning house, although there was another fire
hydrant located directly across the street from the fire scene. Further, "had Mr. Child's [sic]
hooked up to that fire hydrant directly in front of the house, time would have been saved and I
would likely have had more time to save the plaintiff 's decedents." In his affidavit, Soave was
also critical of the firefighting strategy employed by Childs once the fire hose was finally
connected at the scene. In hindsight, Soave opined4 that the fire suppression efforts directed at
(…continued)
2001, plaintiff was afforded an opportunity to amend her complaint to cure this pleading
deficiency.
2
For purposes of his motion for summary disposition, defendant Childs concedes that his
conduct may amount to gross negligence. Accordingly, the only issue on appeal regarding the
governmental immunity statute is whether plaintiff provided sufficient documentary evidence for
a reasonable trier of fact to conclude that defendant Childs's conduct was the proximate cause of
the children's deaths. Defendant Childs does not argue that he is entitled to absolute tort
immunity as the highest appointive executive official of the township fire department. MCL
691.1407(5). Cf. Payton v Detroit, 211 Mich App 375, 394; 536 NW2d 233 (1995), and
Meadows v Detroit, 164 Mich App 418, 426-427; 418 NW2d 100 (1987).
3
In opposing defendant's motion for summary disposition based on MCR 2.116(C)(7) and MCR
2.116(C)(8), plaintiff submitted documentary evidence that was relied upon by the trial court.
Because the factual basis of plaintiff's complaint was ruled on by the lower court, we review the
order as having been granted under MCR 2.116(C)(7) and MCR 2.116(C)(10). Shirilla v
Detroit, 208 Mich App 434; 528 NW2d 763 (1995). See also Fanc v Detroit Library Comm'r,
465 Mich 68, 74; 631 NW2d 678 (2001).
4
The qualifications of John Soave as an expert witness were never established.
-2-
the front of the house "caused the fire in the front of the house to be pushed towards the rear of
the house where plaintiff 's decedents were located." Finally, he speculated that "the actions of
Jeffrey Childs increased the danger to the plaintiff 's decedents and prevented me from rescuing
the children."
After reviewing the facts in a light most favorable to plaintiff, I conclude "the most
immediate, efficient, and direct cause," Robinson, supra at 459, of the tragic deaths of plaintiff 's
children was the fire itself,5 not defendant's alleged gross negligence in fighting it. Plaintiff 's
original, amended, and second amended complaints, in effect, concede that the fire was the
proximate cause of the deaths: "That on April 6, 2000, a fire occurred at the residence of
plaintiff and decedents. That the decedents died as a result of said fire." (Emphasis added.)
Although the alleged gross negligence of defendant Childs in fighting the fire may have
been a "substantial factor," Brisboy v Fibreboard Corp, 429 Mich 540, 547-548; 418 NW2d 650
(1988), in causing the deaths, in my view, its causal connection is insufficient to meet the
governmental immunity threshold standard of "the" proximate cause.
In this regard, the present case bears similarities to Kruger v White Lake Twp, 250 Mich
App 622; 648 NW2d 660 (2002), where our Court held, as a matter of law, that the alleged gross
negligence of the township police department was not the proximate cause of a decedent's death.
In Kruger, the plaintiff called the township police department and requested that her daughter be
taken into custody because her daughter was intoxicated and could pose a danger to herself and
others. Thereafter, the plaintiff 's daughter was transported to the township police department
and placed alone in a holding cell. She later escaped, fled from the police, and ran into heavy
traffic on Highway M-59, where she was tragically struck and killed by an automobile. In
affirming the grant of summary disposition in favor of the defendant police department, we held:
In the instant case, there were several other more direct causes of
Katherine's injuries than defendant officers' conduct, e.g., her escape and flight
from the police station, her running onto M-59 and into traffic, and the
unidentified driver hitting plaintiff 's decedent. Any gross negligence on
defendant officers' part is too remote to be "the" proximate cause of Katherine's
injuries. As a result, the officers are immune from liability. [Id. at 627.]
See also Poppen v Tovey, 256 Mich App 351; 357 n 2; 664 NW2d 269 (2003), and Curtis
v City of Flint, 253 Mich App 555; 655 NW2d 791 (2002).
5
If it were proven that an arsonist started the fire, the arsonist may be the proximate cause of the
deaths.
-3-
For these reasons, I would hold that defendant Childs is immune from tort liability for
plaintiff 's state law claims pursuant to the governmental immunity statute, MCL 691.1407(2).
The circuit court erred in denying the motion for summary disposition on this basis.6
I would remand for dismissal of all claims.
/s/ Richard Allen Griffin
6
I agree with the majority that, pursuant to Beaudrie v Henderson, 465 Mich 124; 631 NW2d
308 (2001), defendant Childs is not afforded common-law immunity under the public duty
doctrine.
-4-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
