By Lee Dryden
BridgeTower Media Newswires
DETROIT—A lawsuit against a medical provider stemming from a car accident involving an off-duty nurse has been dismissed by a Michigan Court of Appeals panel.
In Harris v. Fox, the panel affirmed the Wayne County Circuit Court, which concluded that there was “no duty on the part of defendant to protect the public from the criminal acts of its employee.”
The appeals court panel stated that the harm caused by the defendant nurse was “not within the scope of foreseeability.”
The Nov. 15 unpublished per curiam opinion was issued by Judges Christopher M. Murray, Patrick M. Meter and Elizabeth L. Gleicher.
The accident occurred on July 9, 2013, in Northville Township, when defendant Tammy Fox struck plaintiff Ivory Harris’s vehicle head-on, according to the appeals court opinion.
“At the time of the collision, Fox was employed by defendant as a registered nurse, but was off-duty, off hospital premises, and in her own personal vehicle. According to plaintiff, Fox was high on Propofol — which she allegedly diverted from defendant — at the time of the collision,” the opinion stated.
Defendant Prime Healthcare Services-Garden City LLC, doing business as Garden City Hospital, sought summary disposition, arguing that there was “no special relationship giving rise to a duty between defendant and plaintiff,” and that “even when an employer has knowledge of an
employee’s history of substance abuse, the employer is under no duty to protect the general public from the actions of the employee that occur outside her scope of employment,” according to the opinion.
The defendant also argued that the “plaintiff could not establish any cause of action under a theory of respondeat superior because Fox’s actions occurred outside the scope of her employment.”
The plaintiff countered that defendant’s motion was premature because discovery was ongoing and that defendant breached its duty to plaintiff by “negligently hiring and supervising Fox, creating a foreseeable risk of injury.”
The trial court granted summary disposition for the defendant.
Citing Millross v. Plum Hollow Golf Club (1987), the appeals court opinion stated that the “special relationship between employer and employee does not of itself require the employer to protect third parties from off-premises injuries, either by supervising the consumption of alcohol or providing alternate transportation.”
“Similarly, an employer does not assume a duty to protect the public at large from the alleged criminal actions of off-duty employees merely because it has voluntarily undertaken a duty —e.g., adopting an internal policy forbidding intoxicated employees from driving — that serves to protect the general public,” the opinion continued, citing Premo v. Gen Motors Corp (1995).
The panel stated that “plaintiff’s allegations that defendant had reason to know Fox could not be trusted with prescription medications do not impose a duty on defendant to protect the public from Fox’s criminal acts.”
“There is no special relationship between defendant and plaintiff, and although there is an employer-employee relationship between defendant and Fox, the harm Fox caused was not within the scope of foreseeability,” the opinion stated. “Unless the allegations were that Fox had diverted drugs in the past and subsequently caused a motor vehicle collision, the chain of events is simply not foreseeable enough to impose a duty upon defendant.
“In other words, even if defendant should have known that Fox was allegedly terminated from a former nursing job because she tested positive for morphine, it would not be reasonably foreseeable that she would use her employment with defendant to divert Propofol, inject it after work, choose to drive her car, and cause a head-on collision.”
The panel concluded that the plaintiff failed to establish that defendant owed her a duty, and that no further discovery was necessary.
Defense counsel Enrico G. Tucciarone of Foley, Baron, Metzger, & Juip PLLC in Livonia said, “We are pleased that the Court of Appeals upheld Judge John Gillis’ dismissal, choosing not to extend a hospital’s duty for the unforeseeable alleged criminal actions of its employees while off-duty and off hospital premises.”
“A decision otherwise would have potentially extended an employer’s duty to guarantee the safety of the public anytime, anywhere regardless of whether an employee was actually working at the time,” he added. “Michigan has long recognized that injuries caused by an off-duty, off-premises employee do not give rise to a cause of action against the employer, and this decision is consistent with that well-established precedent.”
Tucciarone added, “Garden City Hospital recognizes the dangers associated with opioid and substance abuse, and it is working diligently in the community to help educate the public about those dangers.”
Plaintiff’s counsel Stacey L. Heinonen of the Mike Morse Law Firm in Southfield said an appeal is planned.
“We are disappointed with the court’s ruling, especially regarding its decision that dispositive relief was not premature as we were not finished with discovery,” she said.
“Defendant was dismissed from her previous job, working only two months, after she tested positive for morphine. It was suspected she was diverting her employer’s controlled substances for her own use. This is one of the issues we were seeking additional discovery about.”
The decision could influence future cases as “unpublished opinions are easily accessible and are often cited as being persuasive,” Heinonen said.
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