The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5457

March 13, 1979

MOTOR VEHICLE CODE:

Responding to an emergency call

POLICE:

Responding to an emergency call

POLICE:

Civil liability for parking vehicle while responding to emergency call

The driver of an authorized emergency vehicle is granted specific exemptions from certain prohibitions of the Michigan Vehicle Code and may park or stand a motor vehicle irrespective of the prohibitions contained therein.

A driver of a vehicle responding to an emergency call must nevertheless park the vehicle in a manner and place which recognizes the duty of care for the safety of others.

The Honorable Ernest W. Nash

State Representative

The Capitol

Lansing, MI 48901

Based upon these facts, you have requested my opinion of law:

'Every police department is required from time to time to park a patrol car on a public street or highway to protect an accident scene or other dangerous situation. They also park on the interstate systems for the same reason or sometimes to take appropriate action with motorists violating the law . . .

'The problem is, several police vehicles have been involved in accidents while parked as described above. The insurance companies involved take the position that the police vehicles were not legally parked and therefore refuse to pay the deductible.'

Your questions are:

1. Is a policeman violating the law if, in the course of a police duty, he parks a police vehicle at a place or at a time when such parking would otherwise be prohibited?

2. If so, is a police officer civilly liable for injuries and damages incurred in a collision between a motorist and a police vehicle so parked?

The response to your question is governed by provisions of the Michigan Vehicle Code, 1949 PA 300, as amended, MCLA 257.1 et seq; MSA 9.1801 et seq.

1949 PA 300, supra, Sec. 2 provides:

"Authorized emergency vehicle' means vehicles of the fire department, police vehicles, ambulances, privately owned motor vehicles of volunteer or licensed ambulance drivers or attendants as are authorized by the department of state police.' (emphasis added)

In setting forth privileges granted to drivers of authorized emergency vehicles, 1949 PA 300, supra, Sec. 603 states in part:

'(a) The provisions of this chapter applicable to the drivers of vehicles upon the highway shall apply to the drivers of all vehicles owned or operated by the United States, this state, or a county, city, town, district, or any other political subdivision of the state, subject to the specific exceptions as are set forth in this chapter with reference to authorized emergency vehicles.

'(b) The driver of an authorized emergency vehicle when responding to an emergency call, but not while returning from an emergency call, may exercise the privileges set forth in this section, subject to the conditions of this section.

'(c) The driver of an authorized emergency vehicle may:

'(1) Park or stand, irrespective of the provisions of this act.

'(2) Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation.

'(3) Exceed the prima facie speed limits so long as he does not endanger life or property.

'(4) Disregard regulations governing direction of movement or turning in specified direction.

'(d) The exemptions granted in this section to an authorized emergency vehicle shall apply only when the driver of the vehicle while in motion sounds an audible signal by bell, siren, air horn, or exhaust whistle as may be reasonably necessary except as provided in subsection (e), and when the vehicle is equipped with at least 1 lighted lamp displaying a flashing, oscillating, or rotating red or blue light visible under normal atmospheric conditions from a distance of 500 feet in a 360 degree are except where it is deemed advisable not to equip a police vehicle operating as an authorized emergency vehicle with a flashing, oscillating or rotating light which is visible in a 360 degree arc. In those cases a police vehicle shall display a flashing, oscillating, or rotating red or blue light which is visible under normal atmospheric conditions from a distance of 500 feet to the front of the vehicle. Only police vehicles which are publicly owned shall be equipped with a flashing, oscillating, or rotating blue light which when activated shall be visible under normal atmospheric conditions from a distance of 500 feet in a 360 degree arc.

'(e) A police vehicle shall retain the exemptions granted in this section to an authorized emergency vehicle without sounding an audible signal if the police vehicle is engaged in an emergency run where silence is required. (emphasis added)

Thus, it is clear that the driver of an authorized emergency vehicle is granted specific exceptions from certain prohibitions of the Michigan Vehicle Code, 1949 PA 300, supra, when responding to an emergency call. 1949 PA 300, supra, Sec. 603(c)(1) specifically provides that the driver of an authorized emergency vehicle may park or stand 'irrespective of the provisions of this act.' Whether an emergency situation exists has been held to be a question of fact requiring individual analysis in each case. Hoffmaster v McNett, 2 Mich App 709, 711; 141 NW2d 352 (1966).

While the driver of an authorized emergency vehicle is afforded a 'preferred status' in responding to emergency situations, he may nevertheless incur civil liability for failure to exercise due care in the discharge of his duties. In McKay v Hargis, 351 Mich 409, 416-418; 88 NW2d 456 (1958), the court considered what standard of care should be applied to a police officer in the exercise of his official functions. In addressing the contention that plaintiff police officer was contributorily negligent while attempting to apprehend the defendant for alleged traffic violations, the court in McKay, supra, said:

'. . . you should keep in mind the preferred status afforded an authorized emergency vehicle and the driver thereof. You should bear in mind that the driver of such a vehicle is required to observe and exercise that care which a reasonably prudent man would exercise in the discharge of official duties of like nature under like circumstances.'

The added obligations of due care and not endangering life and property imposed on him by the statute must be read in the light of the situation he faced and the duty to the public which he was called upon to perform.'

Further, the court quoted with approval from Edberg v Johnson, 149 Minn 395, 399; 184 NW 12 (1921) the following:

"We do not hold that an officer, when in pursuit of a lawbreaker, is under no obligation to exercise a reasonable degree of care to avoid injury to others who may be on the public roads and streets. What we do hold is that, when so engaged, he is not to be deemed negligent merely because he fails to observe the requirements of the motor vehicle act. His conduct is to be examined and tested by another standard. He is required to observe the care which a reasonably prudent man would exercise in the discharge of official duties of a like nature under like circumstances."

Police officers in pursuit of traffic violators are protected by the provisions of 1949 PA 300, Sec. 603, supra, provided they observe basic standards of reason and care. Marion v City of Flint, 71 Mich App 447; 248 NW2d 580 (1976), lev to app den 399 Mich 896 (1977).

In Cole v Rife, 77 Mich App 545; 258 NW2d 555 (1977), the court addressed the question of whether damages arising from an automobile collision were caused by negligent handling of a roadblock by a police officer. In referring to the McKay decision, supra, the court in Cole, supra, stated:

'While the Court in McKay speaks in terms of a breach of the statutory duties imposed incident to the privileges granted by the statute in that case, the decision can stand as well for the proposition that, even in the absence of specifically defined statutory duties, police officers still retain an individual duty of due care to persons with whom they become involved in exercising their official functions. This duty is tested by the standard of whether a reasonably prudent man performing similar official duties would act in the same way . . .'

1949 PA 300, supra, Sec. 653 requires the yielding of right of way by all vehicles until the authorized emergency vehicle has passed. Section 653(b) states, however, that:

'This section shall not operate to relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway.'

Further, 1949 PA 300, supra Sec. 632, which abrogates speed limitations for police vehicles in emergencies states in part that:

'. . . this exemption shall not, however, protect the driver of the vehicle from the consequences of a reckless disregard of the safety of others.'

However, the case at hand deals with parked vehicles. Nevertheless both 1949 PA 300, supra, Secs. 653 and 632 make clear the added responsibility that the operator of an authorized emergency vehicle has toward protecting the safety of others using the roadway.

Thus, it is my opinion that a driver of a police vehicle, when responding to an emergency call, may lawfully park in a manner otherwise prohibited under the Michigan Vehicle Code, 1949 PA 300, supra. In so doing, however, the driver must park the vehicle in a manner and place which recognizes the duty of due care for the safety of others. If he fails to observe the duty of due care for the safety of others, he may be subject to civil liability.

Frank J. Kelley

Attorney General