Police officer immunity

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.