United States District Court, E.D. Michigan, Southern Division
MEMORANDUM AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Doc. 20) AND DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT (Doc. 23)
AVERN COHN, District Judge.
This is an automobile accident case under the Federal Tort Claims Act, 28 U.S.C. §§ 1346 & 2671 et seq. ("FTCA"). Luis Perales ("Perales") and Paricia Perales ("Mrs. Perales") (collectively, "Plaintiffs") claim damages under the FTCA against the United States of America ("the Government") after a Chevrolet Trailblazer fleeing a government owned Chevrolet Suburban hit him. In a one-count complaint, Plaintiffs allege that the driver of the Suburban was negligent in his pursuit of the Trailblazer, resulting in injury to Perales.
The parties have filed cross motions for summary judgment (Docs. 20 & 23). For the reasons that follow, the Government's motion (Doc. 20) is GRANTED and Plaintiffs' motion (Doc. 23) is DENIED.
On May 6, 2012, an Immigration and Customs Enforcement (ICE) agent was working with the Detroit Police Department in southwest Detroit in a joint operation to assure community safety during the celebration of Cinco de Mayo. ICE Special Agent Antonio Galvan and his assigned partner, Detroit Police Officer Brian Gadwell, participated in that effort; they were driving the unmarked Chevrolet Suburban. Galvan was driving; Gadwell was operating the radio.
Near the intersection of Vernor Highway and Campbell Street, Galvan and Gadwell heard five to six gunshots fired near a crowd of more than 30 people. Gadwell told Galvan the shots came from a Chevrolet Trailblazer. The Trailblazer was about one to two vehicle lengths from the Suburban. Galvan began following the Trailblazer and, when no marked vehicle was nearby to make a stop, Galvan activated the vehicle's lights and siren. He attempted to pull in behind the Trailblazer to conduct a stop; the Trailblazer accelerated and Galvan initiated pursuit.
Eventually, the Trailblazer turned the wrong way down a one-way residential street, Morrell Street, with the Suburban in pursuit. Morrell Street allows for only a single lane of traffic with cars parked on both sides of the street. The two vehicles were traveling in excess of the posted 25 miles per hour.
Children and adults were out playing in Morrell Street. Perales was standing on Morrell Street facing toward the oncoming vehicles as he heard the squealing tires and saw the police lights. He warned people to get out of the way; however, a small child headed into the path of the Trailblazer. Perales and a neighbor, Yolanda Diaz, who were on opposite sides of the street, rushed to protect the child. As the Trailblazer passed, it hit Perales in the face, knocking him into Diaz. Perales sustained injuries to his face, which later required surgery.
From the time the shots were fired to when Perales was hit, approximately 55 seconds elapsed.
Perales, along with his wife Paricia Perales filed this case alleging negligence on the part of Galvan. Specifically, Perales says that Galvan was negligent in pursuing the Trailblazer the wrong way down Morrell Street, and by failing to call off the pursuit when the risk of harm to the public outweighed the value of apprehending driver of the Trailblazer. Because the Suburban was owned by the Government and Galvan was a government employee, Perales claims that the Government is responsible for his injuries arising out of the accident. Mrs. Perales alleges a corresponding loss of consortium claim.
III. STANDARD OF REVIEW
The summary judgment standard of review under Fed.R.Civ.P. 56 is well known and not repeated here. Ultimately the District Court must determine whether the record as a whole presents a genuine issue of material fact drawing "all justifiable inferences in the light most favorable to the ...