Wrongful Death Suit Against Detroit Fire Officer Who Missed Fire Victim Dismissed

The Michigan Court of Appeals has ordered the dismissal of a lawsuit filed against a Detroit fire officer who apparently missed a body at a fire scene in 2018. The suit was filed by the family of Kevin McGriff, 26, who perished in the March 5, 2018 fire. Five days later his body was located by his father who had stopped by the building to search for insurance papers.

The suit initially blamed the fire department and Sergeant Roger Harper for negligently causing McGriff’s death, and negligently inflicting emotional distress by failing to locate him during searches. Sergeant Harper contended he searched the area and did not see a body. McGriff’s family pointed to the fact that Harper was disciplined following the fire “for failing to supervise a proper search of the house” as evidence of “reckless” conduct.

The trial court dismissed the suit against the Detroit Fire Department, but ruled that Sergeant Harper could potentially be held liable, depending on a jury’s findings. Sergeant Harper appealed. Quoting from the Court of Appeals decision:

  • After a hearing on the matter, the trial court concluded that [Sergeant Harper’s] failure to locate McGriff’s body was circumstantial evidence demonstrating that his conduct was reckless enough to constitute gross negligence and was a proximate cause of McGriff’s death.
  • Consequently, the trial court found defendant was not entitled to governmental immunity and denied summary disposition to defendant.
  • On appeal [Sergeant Harper] argues the trial court erred by denying him summary disposition because he was entitled to governmental immunity under the GTLA.
  • Specifically, [Sergeant Harper] argues that plaintiff failed to establish that [he] owed any legal duty, that there existed a question of fact as to whether [his] conduct was grossly negligent, and that [his] conduct was the proximate cause of McGriff’s death.
  • We agree.
  • The [Governmental Tort Liability Act] GTLA defines gross negligence as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.”
  • The GTLA thus protects governmental employees that are not grossly negligent from “all legal responsibility arising from a noncontractual civil wrong for which a remedy may be obtained in the form of compensatory damages.”
  • Under the GTLA, a governmental employee is entitled to governmental immunity, and, thus, summary disposition, if the plaintiff fails to establish that the employee owed a duty in tort.
  • Whether a common law duty exists is dependent on “the relationship of the parties, the foreseeability of the harm, the burden on the defendant, and the nature of the risk presented.”
  • There is no general duty obligating one person to aid or protect another unless there exists some sufficiently strong “special relationship” between the parties that requires a defendant to protect an injured party.
  • This Court has held that no “special relationship” exists where no evidence suggests that individuals injured in a fire “completely turned themselves over to” a firefighter for their fire protection or that the injured individuals were “completely incapable of protecting themselves” from the fire.
  • In the instant case, there is no evidence or suggestion that plaintiff turned herself over to protection by defendant.
  • Similarly, no evidence suggests that McGriff turned himself over to protection by defendant.
  • Moreover, no evidence suggests that McGriff, a 26-year-old, was “completely incapable” of protecting himself from the fire.
  • Consequently, there existed no special relationship between the parties that imposed a duty on [Sergeant Harper] to protect McGriff or plaintiff.
  • Second, while [Sergeant Harper] certainly would be able to foresee that someone in a house could be harmed or killed by a fire, there is no evidence indicating that defendant knew that anyone was in the house at the time of the fire.
  • This fact, coupled with the fact that defendant and other firefighters searched the house and found no one inside, makes it less foreseeable that someone could have been injured or killed by the specific fire at the house.
  • Third, we think it is too heavy a burden to impose an affirmative duty on firefighters to ensure the survival of individuals that are unobservable at the scene of a fire.
  • As defendant pointed out, imposing such a broad duty that places personal liability on firefighters not only contradicts established law, but could also have a chilling effect on recruitment of firefighters.
  • Similarly, this enhanced burden would alter how long a firefighter must remain in a fire-compromised building, thereby jeopardizing his or her own safety and the safety of his or her crew.
  • We see no reason to impose an affirmative duty on firefighters requiring them to ensure the survival of individuals, who firefighters are unaware that exist, and cannot be located despite numerous searches of an area.
  • Because defendant had no special relationship with plaintiff or McGriff, defendant owed no duty to them and was, therefore, entitled to governmental immunity.

Here is a copy of the decision:

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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