Michigan Appeals Court Dismisses All But One Firefighter From Personal Injury Suit

The Court of Appeals of Michigan handed down a ruling last week that dismissed a fire department and several firefighter defendants from a personal injury suit, but left one firefighter now to face a jury.

The plaintiff in the suit, John Cheek, owned a Subway sandwich franchise. On February 8, 2007, he allowed members of the Clinton Township Fire Department to use an outside water spigot as part of a training exercise being conducted nearby. The water was needed as part of a breaching and breaking drill.

Cheek alleged the firefighters carelessly left the water running,  which in February in Michigan can only result in one thing. Several hours afterwards, as Cheek was taking out the garbage he slipped on a sheet of ice, resulting in serious injuries including a broken hip.

Cheek sued the fire department, Fire Chief Michael Phy, and Firefighter Timothy Duncan, who was in charge of the drill. The suit alleged Duncan was grossly negligent in allowing the area to become iced over. Cheek later sought to add the chief of training and a battalion commander to the suit, alleging they were negligent in their supervision of Duncan. However, the trial court refused to allow either party to be added, finding that any negligence on their part would be subject to governmental immunity. The trial court also dismissed the department and the fire chief from the suit based on immunity.

On appeal, the Michigan Court of Appeals affirmed the trial court rulings. Here is the actual decision. Download Cheek

That leaves Duncan to face the allegations himself. Why? In Michigan as in most states, there is no protection immunity for gross negligence. Only claims of negligence are entitled to immunity.

There are some factual questions that may give Duncan the advantage at trial, including the fact that the spigot was defective (leaked), and Cheek's own negligence may have played a role is his fall.


About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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