Family draws most hostile panel in Court of Appeals: injury and death claims all dismissed
Deborah Hodges was killed and Brittany Hodges, her daughter, suffered injuries when their car was struck by a City of Dearborn police cruiser operated by Patrick Spresser. Spresser was the second responding police cruiser to a "amoke and possible house fire" that turned out to be a neighbor burning leaves in the back yard. Spresser had no fire-fighting capacity but would apparently direct traffic. He also had no overhead lights on his vehicle.
The Hodges claimed that he was driving at excessive speed when he entered an intersection against the light, killing Deborah. The trial judge agreed that this was a question of fact for the jury and refused summary disposition. The judge also held that Brittany had raised a question of fact with regard to "serious impairment of bodily function."Unfortunately for the Hodges, they drew almost the worst possible combination of pro-insurance judges in the Court of Appeals: Kirsten F. Kelly, Christopher M. Murray and Stephen Borello. If Henry Saad had been on the panel, with Kelly and Murray, they might have charged the Hodges for the value of the police cruiser after dismissing their claims.
In a series of rulings, the judges decided that:
1. Although "speed too fast for conditions" is normally a fact issue, jurors could not reach that conclusion in this case (even thought the trial judge said he could).
2. As a matter of law, Deborah was an "owner" of the car because her son, the titled owner, left it on his parents' property while he repaired it, even though she hadn't enjoyed the use of the vehicle for 30 days, and even though the testimony was that she had been granted permission to use it just to run Brittany to school. Apparently because Deborah was the last registrant of the vehicle, she was "deemed" an owner as a matter of law.
3. The officer cannot be liable for deciding to respond to an emergency--only for reckless operation of the vehicle, and since the kid, Brittany, could hear the siren inside the car, no jurors could find that Spresser acted recklessly in speeding through the intersection against the traffic control device: The judges decided that since his siren was "hearable," he had the right of way and wasn't reckless, regardless of his speed.
4. Because a young person and apparently some other motorists (the Court doesn't say where they were relative to the cruiser or Deborah) heard the siren, the judges "deemed" Deborah more than fifty percent at fault and THE cause of the accident, even though they were charged with interpreting the facts in the light most generous to the person resisting summary judgment. Her failure to yield the right of way in response to the (interior) flashers and siren represented fault greater than Spresser's, regardless of the speed at which he entered the intersection, the pertinent sight distances or distractions for Deborah, or the "cone of sound" emanating from his vehicle.
5. Brittany did not suffer a threshold injury because she already suffered from anxiety, depression and a seizure disorder and she did not prove that her pre-exisiting conditions were seriously exacerbated by watching her mother die. To the extent two medical experts disagreed and supported Brittany's claim, the judges thought one of them was confused and apparently the other didn't count.
This is another of the examples of judicial activism that disgust attorneys and judges who try hard to follow the rules: in this case, the appellate judges who didn't like the facts of the Hodges' case--or the Hodges, most likely--went out of their way to prematurely decide all manner of factual issues against the Hodges, when in theory the rules do not allow them to do so. There is a good chance that a jury hearing the case would have come to the same conclusions that the judges did. As the trial judge recognized, however, under the Court Rules, where a factual dispute exists, the record should be fully developed for a "jury of one's peers" to act upon.