By Thomas Franz
BridgeTower Media Newswires
DETROIT — A Michigan Court of Appeals panel has affirmed a Washtenaw Circuit Court ruling that governmental immunity did not apply to a police officer who struck a vehicle and injured a driver while speeding through an intersection without a siren or emergency lights activated.
In Collins v. Kofahl and City of Ypsilanti, the appeals court stated that the officer was grossly negligent because she was driving at nearly double the speed limit during rush hour in downtown Ypsilanti.
“It’s not just a matter of speeding without lights and sirens on, it’s that she’s doing that in a timeframe and in a location in which it’s likely she would expose a lot of individual citizens to a high degree of harm,” said plaintiff’s attorney Christopher P. Desmond, chief appellate attorney for Johnson Law PLC in Detroit.
Judges Michael J. Kelly and Deborah A. Servitto affirmed the trial court’s ruling. Judge Mark T. Boonstra concurred.
On Sept. 15, 2015, Ypsilanti officer Ashley Kofahl was driving in a marked police vehicle as she and another officer responded to a silent alarm at a local business.
Kofahl activated her emergency lights but not her siren as she was driving 57 mph in a 30-mph-speed-limit area, according to the opinion.
When she approached the next intersection, Kofahl learned that the incident she was responding to was a false alarm, so she deactivated her emergency lights and proceeded to the intersection.
The plaintiff, Anthony Collins, was trying to make a left-hand turn in the same intersection that Kofahl was approaching.
Kofahl applied her brakes but was still going well over the speed limit when she hit the plaintiff’s vehicle in the intersection. Collins sustained severe physical injuries.
Collins filed a complaint against Kofahl and the City of Ypsilanti for negligence, owner liability and gross negligence, and he pleaded that the motor-vehicle and gross-negligence exceptions to governmental immunity applied.
The trial court denied a motion for summary disposition by the defendants in determining that governmental immunity did not apply.
In its unpublished opinion, the court refuted the city’s claim that Kofahl was not negligent in the operation of the police vehicle as she was excused from compliance with the speed limit by MCL 257.603 and MCL 257.632.
The court cites several sections of those statutes that state times when an officer may exceed the speed limit with a siren and lights activated during an emergency situation.
The panel wrote that both statutes would have permitted Kofahl to disregard the speed limit under certain circumstances, but those circumstances did not exist during this crash.
“Kofahl was no longer responding to an emergency as she had been notified that it was a false alarm, and, in any event, she did not have her emergency lights activated when she crashed into Collins’s vehicle. Thus, given her speed at the time of the crash, there is a rebuttable presumption of negligence,” the court wrote.
The panel added that even without that presumption, a reasonable jury could conclude that the decision to proceed through the intersection while traveling 57 mph in a 30-mph zone during rush-hour traffic without any emergency lights or sirens was a violation of the general duty of care a driver owes other motorists.
The city also argued that Kofahl had the right of way and Collins should have seen Kofahl’s emergency lights before she turned them off as she approached the intersection.
Collins’ testimony stated that he did not see Kofahl’s vehicle before turning, the court wrote.
“Therefore, although there is also evidence suggesting that Collins either did or should have seen Kofahl’s vehicle and yielded to her, resolution of factual disputes is not proper on a motion for summary disposition,” the panel wrote.
In analyzing the defendant’s argument that Kofahl was entitled to immunity based on the gross-negligence exception, the panel determined that the officer traveling at nearly twice the speed limit through a downtown area was the proximate cause of the accident.
To prove gross negligence in this case, Desmond said the best way to do it is to show the government actor is disregarding statutes or ordinances that are in place from the police department themselves.
“The standard for gross negligence is to show the individual governmental employee showed a reckless disregard for the possibility that injury could occur,” Desmond said. “The statutes that are in place, including the ones regarding speeding and when officers are allowed to speed and violate traffic ordinances, those laws are in place as safety measures.”
At the crash scene, Desmond said the defendant officer was cited by the responding state trooper as being at fault and being the cause of the accident.
The trooper also cleared the plaintiff of having any fault in the accident and concluded he was driving in a reasonably safe manner without having any reason to know the officer was approaching the intersection.
“We also had a witness who was at the intersection right behind our client. He was also deposed and said that had he been in the same position as our client that he would’ve done the exact same left turn because the intersection looked clear and the officer was approaching so quickly you couldn’t have even seen her,” Desmond said.
To solidify their case, Desmond said he also had a number of officers testify to contextualize the defendant’s actions.
“Officers are trained that when you’re approaching an intersection, you need to slow down, ensure that your lights and sirens are on. It was a matter of explaining to the court what officers are trained to do in order to keep people safe and what she did so grossly deviated from those standards,” Desmond said.
Defense attorney Julie O’Connor did not respond to requests for comment on this case.
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