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No. 117252
| Jeanne and Kristin Omelenchuk, |
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Stephen J. DeHaan (616) 235-2300 |
| Co-personal Representative of |
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| the Estate of George Omelenchuk, |
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Plaintiffs-Appellees,
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| vs (Appeal from Ct of Appeals) |
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| (Macomb -- G. Montgomery) |
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| The City of Warren, and the |
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Rosalind Rochkind (313) 446-5522 |
| Warren Fire Department, |
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Defendants-Appellants.
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Click to view briefs in Adobe format:
Plaintiff-Appellee's Brief on Appeal>>
Defendant-Appellants' Brief on
Appeal>>
Amici Curiae Michigan Municipal League
and Michigan Municipal
League Liability & Property Pool Brief>>
Background
On February 13, 1994, George
Omelenchuk was discovered on the floor of his business by plaintiff
Jeanne Omelenchuk. George had apparently suffered a heart attack; a
911 call summoned EMS. Resuscitation efforts included insertion of an
endotracheal tube. The tube was later discovered in the esophagus, not
the trachea. Resuscitation efforts were unsuccessful and George was
declared dead. Plaintiffs Jeanne and Kristin Omelenchuk sued the City
of Warren and its fire department, claiming that the EMS crew members
were grossly negligent and caused George's death. The Omelenchuks' complaint
also stated that the defendant City of Warren was vicariously liable
for the crew members' alleged gross negligence. The City of Warren moved
to dismiss the suit, arguing in part that the claims were barred by
governmental immunity. Macomb Circuit Judge George E. Montgomery agreed
and dismissed the case. Ultimately, the Court of Appeals reversed in
an unpublished decision, stating that governmental immunity did not
bar the suit against the city. Under the 1994 version of Michigan's
Emergency Medical Services Act (EMSA), the city's employees could be
sued for grossly negligent conduct. Accordingly, the city could be sued,
the Court of Appeals concluded. The city appeals. It argues that a section
of EMSA states that the provision governing gross negligence "does not
limit immunity from liability otherwise provided by law." Accordingly,
EMSA does not limit the city's immunity from suit under Michigan's Governmental
Tort Liability Act (GTLA), the city contends. The plaintiffs argue that
there is no evidence that the state Legislature intended to eliminate
vicarious liability for gross negligence by incorporating GTLA's provisions
into EMSA.
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