A Macomb County judge ruled last week the plaintiffs in a civil case against the city of Warren for a police crash that killed two men last year can add the passenger-officer as a defendant because he could have been part of the “proximate cause” of the crash.

Circuit Judge Michael Servitto last week allowed the families of the two deceased men, Cedric Hayden Jr. of Warren and DeJuan Pettis of Detroit, to amend their complaints to add officer Michael Rodolfo, who was a passenger in the police vehicle driven by James Burke that crashed into a white Dodge Duranto occupied by Pettis and Hayden.

Attorney Michael Wix gained the ruling on the basis that it’s possible Rodolfo contributed to the crash in the early morning hours last Sept. 30 on Schoenherr Road near Toepfer Road. The police vehicle’s emergency lights and siren were not activated, and Rodolfo along with Burke had control of them. Rodolfo also possibly could’ve warned Burke of the victims’ vehicle, Wix contended. It is alleged by the plaintiffs the police vehicle was traveling over 100 mph when it crashed into the victim’s vehicle turning left on Schoenherr to enter Prospect Avenue.

“One of the big allegations here is the failure to use the emergency lights and siren,” Wix told Servitto during a hearing held on Zoom. “The passenger or partner police officer who’s riding shotgun is also responsible for keeping a look-out for vehicles coming and warning of oncoming hazards. And there is a duty to intervene, and driving at 117 miles per hour is illegal conduct.”

Proximate cause will be a key determination in the lawsuit, which alleges “negligence, gross negligence,” and “willful and wanton conduct” by the officers, he noted.

“You’re not talking about the proximate defendant,” he said.

In ruling over the opposition of the city’s lawyer, Raechel Badalamenti, Servitto compared the situation to “potentially” being similar to aiding and abetting in a criminal case. He noted someone who aids and abets a person in a “general intent” crime, such as those involving negligence or gross negligence,” can be charged, though he acknowledged there is case law addressing the scenario in this case.

The ruling came days before the preliminary exam is scheduled for this afternoon for Burke, 29, who is charged with manslaughter, in 37th District Court in Warren.

Macomb County prosecutors have asked Judge John Chmura to ignore Hayden’s intoxication level, just under 0.2%, more than twice the legal limit, when the crash occurred.

Assistant Macomb Prosecutor Corey Newman argued at a May hearing in the criminal case that Hayden’s actions, including spending about 30 seconds in the turn lane and turning at 14 mph, do not rise to gross negligence so do not trigger a consideration of his intoxication level.

The fact Hayden’s driver’s license was suspended also should not be considered, he added.

Burke’s attorney, Mark Curtis, said prior case rulings indicate “intentional misconduct” or gross negligence by the victim can be used as a defense against “causation.”

“Intentional conduct is getting drunk, it is driving your car intoxicated, it is not being able to perceive the traffic around you,” Curtis said, saying Hayden did not activate his turn signal and “turned sharply.”

Rodolfo has not been criminally charged.

The families of Hayden, 34, and Pettis, 33, criticized the manslaughter charge for Burke, saying he should be charged with murder.

Manslaughter is punishable by up to 15 years in prison while second-degree murder carries a heftier term of up to life, often at least 15 years.

The men’s families said they were best friends and were arriving home from work at the time.