In
Lego v Liss, __ Mich __ (#149246, 47, 1/4/2016) the Supreme Court
considered the scope of the immunity provision of the firefighter’s rule for
governmental entities and employees, MCL 600.2966.
During
an attempted apprehension of an armed-robbery suspect, the defendant, a police
officer, shot the plaintiff, also a police officer. Plaintiff and his spouse
filed suit against the defendant, asserting gross negligence.
The
trial court denied the defendant’s motion for summary disposition based on MCL
600.2966 and the Court of Appeals affirmed in a divided opinion. The Supreme
Court granted leave to appeal. 497 Mich 926 (2014), and then reversed in part the
judgment of the Court of Appeals and remanded the case to the Wayne Circuit
Court for entry of an order granting summary disposition to the defendant.
Specifically, the Supreme Court disagreed with the Court of Appeals majority
that the applicability of MCL 600.2966 could not be decided at this time as a
matter of law under the facts presented in this case.
MCL
600.2966 provides in part as follows: The state, a political subdivision of
this state, or a governmental agency, governmental officer or employee,
volunteer acting on behalf of a government, and member of a governmentally
created board, council, commission, or task force are immune from tort
liability for an injury to a firefighter or police officer that arises from the
normal, inherent, and foreseeable risks of the firefighter’s or police
officer’s profession.
The
Court of Appeals erred by affirming the denial of summary disposition to the
defendant on the basis that the plaintiffs’ allegations, if true, would
demonstrate that the defendant acted in disregard of his police training and
violated numerous safety procedures. The Court of Appeals essentially
determined that the defendant might not be entitled to immunity if his actions
were especially egregious; in other words, if the defendant were grossly
negligent, he would not be entitled to immunity because the injury resulting
from his actions would not “arise from the normal, inherent, and foreseeable
risks of his profession” as required under MCL 600.2966. This interpretation of
the language “normal, inherent, and foreseeable risks,” however, contravenes
MCL 600.2966, especially when it is read in conjunction with the general
firefighter’s rule, MCL 600.2967. That rule provides that a firefighter or
police officer may sue for damages for injuries arising out of a normal,
inherent, and foreseeable risk of his or her profession if the injuring party
acted with (among other mental states) gross negligence. MCL 600.2967(1)(a)(i).
But MCL 600.2966 exempts governmental entities and employees from that general
rule by immunizing them from all tort liability “for an injury to a firefighter
or police officer that arises from the normal, inherent, and foreseeable risks
of the firefighter’s or police officer’s profession.” To hinge the applicability
of this immunity provision on the degree of recklessness with which the
defendant acted would undermine the statutory language by potentially denying
immunity to a governmental defendant on the very basis for which the statute is
intended to provide such immunity. Rather, when determining the applicability
of the immunity provision of MCL 600.2966, the inquiry must be whether the
injury arose from the normal, inherent, and foreseeable risks of the police
officer’s or firefighter’s profession.
