 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Grahovac v. Munising Township9/21/2004
FOR PUBLICATION
In this wrongful death action, defendant Harold Anderson, the chief of the Munising Township Volunteer Fire Department, appeals as of right from the trial court's order denying his motion for summary disposition under MCR 2.116(C)(7). Because we agree with the trial court that a township fire chief is not sheltered by the absolute immunity provisions of MCL 691.1407(5), we affirm.
This Court reviews a trial court's ruling on a motion for summary disposition de novo. Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). "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." Wade v Dep't of Corrections, 439 Mich 158, 162; 483 NW2d 26 (1992). This Court must consider all well-pleaded allegations as true and construe them in favor of the non-moving party. Id. at 162-163. "If the facts are not in dispute and reasonable minds could not differ concerning the legal effect of those facts, whether a claim is barred by immunity is a question for the court to decide as a matter of law." Poppen v Tovey, 256 Mich App 351, 354; 664 NW2d 269 (2003).
On September 15, 2001, plaintiff's decedent, Paul Grahovac, a volunteer emergency medical technician for Alger County, responded to an accident at the intersection of M-28 and M-94 in Munising Township. While Grahovac was assisting an accident victim, a fire truck owned by Munising Township and operated by Richard Fromm struck Grahovac and killed him when the fire truck's brakes failed. Plaintiff, Grahovac's personal representative, filed suit against Munising Township, Richard Fromm, and Harold Anderson. With respect to defendant, plaintiff alleged that defendant was grossly negligent in failing to ensure that the fire truck was properly inspected and maintained. Defendant moved for summary disposition pursuant to MCR 2.116(C)(7), alleging that he was entitled to absolute governmental immunity under MCL 691.1407(5).
MCL 691.1407(5) provides:
A judge, legislator, and the elective or highest appointive executive official of all levels of government are immune from tort liability for injuries to persons or damages to property if he or she is acting within the scope of his or her judicial, legislative, or executive authority.
The trial court denied defendant's motion for summary disposition by concluding that as the chief of a volunteer fire department, defendant was not the highest elected or highest appointed executive official of Munising Township. The trial court determined that the highest executive officer of a department within a township was not absolutely immune under MCL 691.1407(5) because the township supervisor who hired the fire chief was actually the highest elected or highest appointed executive official in the level of government within which the fire department was organized -- the township. Denying defendant's motion for summary disposition, the trial court ruled in part, Although the Court would find for purposes of appeal that, at least for the record at this point, that he is the highest executive officer of the -- of the township volunteer fire department, that that does not entitle him to the absolute immunity under paragraph 5 since he's not the highest executive appointive office -- officer, such as the supervisor of that township. And on that basis the Court denies the motion for summary judgment.
Implicit in the trial court's reasoning was the concept that a fire department itself is not a "level of government," so the highest official of the department could not be absolutely immune under the relevant statute.
Page 1 2 3 4 5 6 Michigan Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|