Bradford v. Wurm

610 F.Supp.2d 835

Brian BRADFORD, Plaintiff, v. Andrew WURM and Vincent Palazzolo, Defendants.

Case No. 08-11365.

United States District Court, E.D. Michigan, Southern Division.

April 6, 2009.

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Marc L. Shreeman, Southfield, MI, for Plaintiff.

T. Joseph Seward, Cummings, McClorey, Livonia, MI, for Defendants.

OPINION AND ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

DAVID M. LAWSON, District Judge.

Plaintiff Brian Bradford alleges that he was injured during a pursuit and arrest by the defendants, who are police officers of the City of Ferndale, Michigan. Bradford had exited the vehicle he was driving and was on foot, when the defendants, each in a separate police vehicle, maneuvered their cars to impede Bradford's escape, resulting in Bradford being pinned between the bumpers of the two cars. Bradford suffered serious injuries to his leg and filed the present lawsuit alleging five counts in his amended complaint: state law claims for assault and battery, gross negligence, statutory non-economic liability for negligent operation of a motor vehicle under Michigan's No-Fault law, and statutory economic liability in excess of the statutory three-year limitation; and violation of federal constitutional rights to be free from an illegal seizure, invasion of privacy, and equal protection under 42 U.S.C. § 1983. The defendants have moved for partial summary judgment, not on the federal claims as one might expect, but arguing that the plaintiff fails to meet the "serious injury" threshold under the state's No-Fault law, and the common law claims must be dismissed because the police officers owe no duty to a fleeing motorist. The Court has reviewed the submissions of the parties and finds that the relevant law and facts have been set forth in the motion papers and that oral argument will not aid in the disposition of the motion. Accordingly, it is ORDERED that the motion be decided on the papers submitted. See E.D. Mich. LR 7.1(e)(2). The Court finds that material fact questions preclude summary judgment on the grounds raised by the defendants. Therefore, the motion for partial summary judgment will be denied.

I.

Under Michigan's No-Fault law, which governs the right of a person to sue in tort for injuries arising from motor vehicle accidents, a party at fault for causing the accident cannot be held liable unless the injured person can prove that he or she has "suffered death, serious impairment of body function, or permanent serious disfigurement." Mich. Comp. Laws § 500.3135(1). In determining whether the plaintiff has met the statutory threshold defining the seriousness of an injury, the Michigan courts require an assessment of "the course or trajectory of the plaintiff's normal life." Kreiner v. Fischer, 471 Mich. 109, 131, 683 N.W.2d 611, 625 (2004).

Based on the parties' submissions, it does not appear that the trajectory of the plaintiff's life has propelled him toward the stratosphere. The plaintiff was forty-six years old on the date of the accident. At the time of his deposition, the plaintiff was homeless. He had completed the ninth grade before he was kicked out of school for drug use. The plaintiff has been diagnosed with bipolar disorder and paranoid schizophrenia, but is currently taking medicine to control these conditions.

The plaintiff has worked in various low-skill jobs during his life. A few years before the accident, he started Bradford's Pooper Scooper company. His friends "would hire [the plaintiff's] services to come in and do their pooper scooping for their dogs and their kennels and what they have and so forth." Def.s' Mot., Ex. B, Bradford Dep. at 23. He testified that he was in the process of expanding his business beyond his friends in early 2005. The last day he worked was on October 1, 2005. He never reported any income to the government for tax purposes.

The plaintiff has used crack cocaine throughout his life. Within a week and a half to two weeks prior to his deposition, he had used crack cocaine. He said that was the first time in forty days he had used it, although before that he used it "real often. Every other day, every couple of days or so." Def.s' Mot., Ex. B, Bradford Dep. at 18.

The events on the day of the accident (or the day before, or two days before— the plaintiff cannot remember exactly) began when the plaintiff met a woman at a liquor store who was driving her vehicle into another person's vehicle in the parking lot. According to the plaintiff's deposition testimony, it appears that the plaintiff struck up a conversation with her and befriended her. They drove in her truck, parked, and started smoking crack cocaine and engaging in sexual activity. The plaintiff perceived that the woman was drunk and was unable to drive. So, according to the plaintiff, the woman gave him the keys to the vehicle and gave him permission to drive it. They then proceeded to the home of a drug dealer named Dwight.

Dwight sold them some crack cocaine, and the plaintiff went to get money for the drugs from his son who lived nearby. When he returned, the woman he had met had become interested in another man. The plaintiff explained that several men "tried to start jumping" the plaintiff, so he ran to the woman's truck, and drove off. Id. at 45. The plaintiff came to a stop some distance away and fell asleep in the truck.

When he woke up, the date was October 4, 2005. The plaintiff says he went looking for the woman, returning to Dwight's house. When he could not find her, he left and found some of his other friends, Kristen and "big booty Judy," who had a motel room. He showered and changed his clothes, and also got "buzzed," presumably on cocaine. Id. at 55.

The plaintiff and Kristen then decided to drive to the home of the plaintiff's son. As they exited the motel parking lot, the plaintiff testified that he was pursued by a Ferndale police vehicle driven by defendant Vincent Palazzolo. Palazzolo, a sergeant with the Ferndale Police Department, had checked the truck's license tag as it was parked in the hotel. The law enforcement information network's (LEIN) records reported it as stolen in a carjacking by two black males.

The plaintiff admits that "I guess you could say I was trying to get away" from officer Palazzolo. Id. at 56. While underway, Kristen opened the door twice, demanding that the plaintiff pull over or she was going to jump, but the plaintiff refused to do so. The plaintiff's deposition testimony is unclear on what happened next, but he states that when he tried to get away, "[t]he car wasn't running. See, on the impact of the car, the car's fuel system cut off." Ibid. It likewise is not clear to what impact the plaintiff refers, as it does not appear to be in his deposition testimony. However, Palazzolo's deposition testimony sheds some light on this. It appears that upon being approached by the police car, the plaintiff's vehicle made a right turn, and hit a curb with such force that it appeared to damage the vehicle. The vehicle then proceeded into a subdivision, where according to Palazzolo it was going about fifteen or twenty miles per hour. The plaintiff perceived that the car was "coasting at about six miles an hour." Id. at 56. Defendant Andrew Wurm, a Ferndale police officer who was summoned to assist, approached in his vehicle around this time.

The stories diverge a bit at this point. The plaintiff testified that he directed the car onto the grass, put it into park, and then exited the vehicle. He does not remember what happened next, but he "woke up" with a police car "over top" of him. Id. at 58. There were two police vehicles at the scene, with one officer in each. The officer then backed up the car that was on top of the plaintiff, and the plaintiff got up and began running away again. When the plaintiff ran, one officer, presumably Palazzolo, moved one car toward the plaintiff, who was running by the other police car, and the plaintiff dove to the ground. When he dove, his left leg was in the air, and it became pinned between the police car that had moved towards the plaintiff and the one that was parked.

Palazzolo described the incident differently. He testified that the plaintiff maneuvered the vehicle off the road, and when it slowed to five or ten miles per hour, the plaintiff exited the vehicle. The plaintiff tripped and fell because he could not run as fast as the car was going. Palazzolo testified:

I was angling away from his vehicle, so it would have been straightening out more towards Officer Wurm. . . . We slid into each other, Officer Wurm and I, and Mr. Bradford got pinched in between the bumpers.

Pl.'s Resp., Ex. B, Palazzolo Dep. at 20. Palazzolo testified that he "remember[s] sliding," which is why he was unable to stop the car before pinching the plaintiff. Id. at 21. However, he also testified that he intended to place his vehicle between the plaintiff and the south in order to trap him and prevent him from running away.

The plaintiff was brought to the Beaumont Hospital in Royal Oak, Michigan in an ambulance, and spent six days in the hospital. He was diagnosed with a left open (compound) femur fracture and was brought into surgery the same day to clean out the wound. Three days later he was brought into surgery again to repair the broken bone. An intramedullary rod was inserted, which apparently has never been removed. The plaintiff claims he spent four or five months in physical therapy. He also claims that two additional surgeries are required.

Upon his discharge from the hospital, the plaintiff was arrested and brought to court on a charge of fleeing and eluding police, to which he pleaded no contest. Apparently no carjacking charges were ever filed.

The Beaumont Hospital records submitted by the plaintiff show frequent complaints of pain in the months and years following the surgery, mostly attributable to the hardware still being in place. The plaintiff went to the hospital for...