Gibbons v. Caraway

565 N.W.2d 663, 455 Mich. 314

• Court: Michigan Supreme Court
• Decided: July 22, 1997
• Docket: Docket Nos. 102190, 102191 and 102388, Calendar Nos. 1-2
• Status: Published

Opinions

Cavanagh, J.

In these consolidated cases, we are required to further explicate the scope of the fireman’s rule. In Gibbons, we are also required to determine whether the exemption from liability afforded by § 401(2) of the civil liability act, MCL 257.401(2); MSA 9.2101(2), applies to defendant Elmer Simko.

i

GIBBONS v CARAWAY

The incident at issue in this case occurred on November 12, 1990. Plaintiff, a Bloomfield Township police officer, was dispatched to the scene of an accident that had occurred at the intersection of Adams Road and the entrance/exit ramp of 1-75. During the relevant period, plaintiff was directing traffic¹ while other on-scene personnel were sweeping up debris that had scattered across the four lanes of Adams Road. Plaintiff was standing near the center line in the northbound left-hand lane.

Defendant Caraway was driving a 1990 Lincoln Town Car owned by defendant Simko, which he had leased to defendant Mound Steel & Supplies, Inc.² She was driving southbound on Adams Road and, as she approached the intersection, she swerved (for an as yet undetermined reason)³ and struck plaintiff.

Plaintiff filed suit against all three defendants. His claim against defendant Caraway alleged that she operated the vehicle in a wanton, reckless, careless, negligent, or grossly negligent manner. Plaintiff also alleged that defendants Simko and Mound Steel & Supplies were liable on the basis of their ownership of the vehicle.

Following discovery, all defendants moved for summary disposition pursuant to MCR 2.116(C)(10), claiming that plaintiff’s suit was barred by the fireman’s rule as set forth by this Court in Kreski v Modern Wholesale Electric Supply Co, 429 Mich 347; 415 NW2d 178 (1987), and Woods v City of Warren, 439 Mich 186; 482 NW2d 696 (1992). Defendant Simko also argued that he was exempt from liability, pursuant to MCL 257.401(2); MSA 9.2101(2), because he was engaged in the business of leasing motor vehicles. The circuit court denied all motions.

In an unpublished memorandum opinion,⁴ the Court of Appeals reversed the circuit court, holding that plaintiff’s claims were barred by the fireman’s rule. Citing this Court’s opinion in Woods, the Court of Appeals reasoned that plaintiff was on duty when he was struck by the automobile driven by defendant Caraway, that the risk of being struck by a negligent motorist is inherent in the activity of directing traffic, that there are no exceptions to the fireman’s rule, and that the circumstances of this case fall within the rationale of the fireman’s rule. The Court of Appeals did not address defendant Simko’s alleged exemption from liability.

We granted leave, 450 Mich 964 (1996), and now reverse.

MARIIN v FLEUR, INC

On February 27, 1991, plaintiff, a police officer for the City of Gladstone, was socializing and drinking beer with friends at Wally’s Bar.⁵ It is undisputed that plaintiff was off duty and dressed in civilian clothes. At some point, William Tardiff, whom plaintiff had arrested several years previously, entered the bar and recognized plaintiff. Tardiff, whose animosity toward plaintiff and other Gladstone police officers had been publicly expressed on numerous occasions, verbally threatened plaintiff and then grabbed plaintiff by the shirt. As plaintiff attempted to get away from Tardiff, he fell backwards over a bar stool and injured his shoulder, which injury rendered plaintiff unable to work for a period of six months.

Plaintiff filed an action against Tardiff and Fleur, Inc. Defendant Fleur, Inc., moved for summary disposition pursuant to MCR 2.116(C)(8) and (10),⁶ and the motion was granted by the circuit court.⁷

The Court of Appeals reversed the circuit court. 208 Mich App 631; 528 NW2d 218 (1995). It reasoned that the fireman’s rule is not applicable in this case in light of

the basic formulation of the fireman’s rule, namely, that there cannot be liability for injuries arising out of the inherent dangers of the profession where the cause of the injury arises from the reason for the officer’s presence. In the case at bar, it might be said that it is an inherent danger of law enforcement that an arrestee may harbor ill will against the arresting officer and, at some point thereafter, attack the officer. However, what is missing in the present case is a showing that the officer’s presence at the scene of the injury was occasioned by his duties as a police officer. That is, plaintiff was not at Wally’s Bar because he was answering a police call. Rather, he was socializing there while off duty. [Id. at 636.]

We granted leave, 450 Mich 964 (1996), and now affirm.

n

In Kreski, supra, this Court adopted a fireman’s rule “on the basis of public policy,” 429 Mich 371, expressly “declinfing] to adopt the fireman’s rule on the basis of the doctrine [of assumption of risk].” Id. at 365. We explained that “[t]he policy arguments for adopting a fireman’s rule stem from the nature of the service provided by firefighters and police officers, as well as the relationship between these safety officers and the public they are employed to protect,” id., and we approvingly noted the public policy rationales adopted by three of our sister jurisdictions, which provide:

“The [fireman’s] rule developed from the notion that taxpayers employ firemen and policemen, at least in part, to deal with future damages that may result from the taxpayers’ own negligence. To allow actions by policemen and firemen against negligent taxpayers would subject them to multiple penalties for the protection. [Steelman v Lind, 97 Nev 425, 427; 634 P2d 666 (1981).]

* * *

“[S]ince government entities employ and train firefighters and policemen, at least in part, to deal with those hazards that may result from the actions or inaction of an uncircumspect citizenry, it offends public policy to say that a citizen invites private liability merely because he happens to create a need for those public services. [Pottebaum v Hinds, 347 NW2d 642, 645 (Iowa, 1984).]

“[A]s a matter of public policy, firemen and police officers generally cannot recover for injuries attributable to the negligence that requires their assistance.” [Flowers v Rock Creek Terrace, 308 Md 432, 447; 520 A2d 361 (1987), quoted in Kreski, 429 Mich 366-367.]

In Kreski, we also noted other policy arguments relied on by other jurisdictions, such as “the purpose of safety professions is to confront danger,” 429 Mich 368, and “workers’ compensation benefits are available to police officers and fire fighters injured in the course of their employment.” Id. at 369. We ultimately adopted a fireman’s rule in light of all these policy rationales, without giving dispositive weight to any one (or any combination) of them. The most importaut overarching principle to be drawn from the Kreski opinion is contained in our statement, “[W]e are not attempting to delineate the precise parameters of the rule in this opinion. Several exceptions involving factual situations not presented here have developed in the states employing a fireman’s rule.” Id. at 370. As examples of factual situations considered by other courts in allowing exceptions to their states’ fireman’s rules, we noted the following: cases where there are “allegations of wrongdoing or negligence after plaintiffs [i.e., safety officers] were on the scene”; cases where there are allegations of “negligence rising to the level of wilful, wanton, or intentional misconduct”; and cases “in which the injuries occurred when the [premises] were open to the public for business.” Id. at 371. To clarify further that we did not envision the opinion as a bright-line statement of the precise parameters of the fireman’s rule we were adopting, we stated: “By adopting a fireman’s rule on the basis of public policy, we also will be able to flexibly address the different fact patterns as they are presented.” Id.

We next addressed the application of the fireman’s rule in Woods, supra. In that opinion we dealt with two aspects of the fireman’s rule that are directly relevant to the cases at bar: whether there are, or can be, any exceptions to the fireman’s rule, and the scope of the risks for which the fireman’s rule bars a safety officer’s tort claims.

In response to the plaintiff’s argument that Kreski established several exceptions to the fireman’s rule, we stated:

It did not. The Kreski Court did indicate that the rationale of the fireman’s rule might not apply in every circumstance involving an injury to a safety officer. It suggested, for instance, that buildings open to the public might justify a different result and that injuries resulting from intentional torts might also justify disregarding the fireman’s rule. The Court did not, however, establish that those circumstances prevented application of the fireman’s rule.⁸ It merely used them to indicate its willingness to apply the rule flexibly as circumstances required. That the Kreski Court chose this language to avoid rigid and formalistic adjudication does not mean it intended to defeat application of the fireman’s rule when otherwise justified._

[Woods, 439 Mich 194.]

This passage represents the Woods Court’s recognition that Kreski did not establish any bright-line, categorical exceptions to the fireman’s rule, but that indeed there can be individual exceptions in appropriate situations.

With regard to the scope of the risks encompassed by the fireman’s rule, the Woods Court addressed the plaintiff’s argument relative to the following excerpt from Kreski:

“[A]s a matter of public policy, we hold that fire fighters or police officers may not recover for injuries occasioned by the negligence which caused their presence on the premises in their professional capacities. This includes injuries arising from the normal, inherent, and foreseeable risks of the chosen profession.” [Woods, supra at 194, quoting Kreski at 372.]

The plaintiff’s argument was that the first sentence is a necessary predicate for the applicability of the second sentence. In dismissing this argument, we noted that the plaintiff had overlooked a subsequent, relevant statement in the Kreski opinion: “ ‘The scope of the rule . . . includes negligence in causing the incident requiring a safety officer’s presence and those risks inherent in fulfilling the police or fire fighting duties.’ ” Woods, supra at 195, quoting Kreski at 372 (emphasis added by the Woods Court). This additional quotation from the Kreski opinion was sufficient under the specific facts of Kreski (and Reetz, its companion case), but it is insufficient for the case at bar. Immediately following the sentence quoted by the Woods Court were the following two sentences, which are of great significance in the factual situations presented by the instant cases: “Of course, this does not include all risks encountered by the safety officer. The fireman’s rule is not a license to act with impunity, without regard for the safety officer’s well-being.” Kreski, supra at 372.

With this fuller understanding of the principles underlying the application of the fireman’s rule, we turn now to the cases at bar.

m

A

In concluding that defendants were entitled to summary disposition, the Court of Appeals noted that “[t]here is no dispute that Officer Gibbons was on duty directing traffic around an accident scene when he was struck by an automobile driven by defendant Caraway,” and, citing Woods, concluded that “[t]here are no exceptions to the [fireman’s] rule . . . .” Slip op at 1.

As already explained, this Court has not established any categorical exceptions to the fireman’s rule. But the notion underlying the Court of Appeals ruling (i.e., that there can be no exceptions to the rule) is an erroneous reading of the Kreski and Woods opinions, as evidenced by our review of those cases in part n.

In Woods, the plaintiff police officer, Sergeant Woods, spotted a car that had been reported stolen and gave chase. The driver of the stolen car attempted to outrun Sergeant Woods, who engaged in high-speed pursuit. Ultimately, both drivers crashed into the same house because of icy road conditions. Sergeant Woods suffered injuries to his pelvis and hip. 439 Mich 189.

In engaging in the high-speed pursuit of a stolen vehicle, a pursuit he was compelled to undertake in the performance of his duty, Sergeant Woods exposed himself to certain dangers. Among those dangers was the risk of losing control of his vehicle, particularly under unsafe road conditions such as glaze ice.⁸ There were no allegations of wrongdoing or negligence after Sergeant Woods was on the scene, nor were there any allegations of negligence rising to the level of wilful, wanton, or intentional misconduct.

In the case at bar, the risks inherent in Officer Gibbons’ fulfillment of his police duties did not include all possible risks that could arise in that situation. Because “[t]he fireman’s rule is not a license to act with impunity, without regard for the safety officer’s well-being,” Kreski at 372, the allegedly negligent operation of her automobile by defendant Caraway, which occurred after Officer Gibbons was on the scene and which is alleged to have been wanton, reckless, careless, negligent, or grossly negligent, precludes any ruling as a matter of law at this stage of the proceedings⁹ that Officer Gibbons’ claims are barred by the fireman’s rule. In light of the relevant principles underlying our adoption of the fireman’s rule, we would hold that application of the rule under these circumstances is unjustified.

B

We now turn briefly to defendant Elmer Simko’s claim that he is exempt from liability under MCL 257.401(2); MSA 9.2101(2), which provides:

A person engaged in the business of leasing motor vehicles who is the lessor of a motor vehicle under a lease providing for the use of the motor vehicle by the lessee for a period that is greater than 30 days is not liable at common law for damages for injuries to either person or property resulting from the operation of the leased motor vehicle.

There is no dispute that the leases at issue here all satisfy the “for a period that is greater than 30 days” requirement of the statute. The question presented by this issue is whether defendant Simko is “in the business of leasing motor vehicles.” We would hold that he is not.

As a general matter, we note that when the Legislature was considering the act¹⁰ that added subsection 2 to § 401 of the civil liability act, the stated concern was the requirement of the Insurance Code then in effect that owners of motor vehicles were required to carry certain no-fault insurance coverages. It was argued that banks, credit unions, and other financial enterprises were unduly burdened by this requirement, resulting in the inability of these financial institutions to engage in the business of leasing motor vehicles, which activity, it was argued, they needed in order to compete against the subsidized financing arrangements provided by the automobile manufacturing companies. Ultimately, two tie-barred bills were enacted as 1988 PA 125, which, relevant to this appeal, exempted from ownership liability those who are engaged in the business of leasing motor vehicles.

We make no attempt in this opinion to set forth a definitive and all-encompassing standard by which to determine what constitutes being engaged in the business of leasing motor vehicles. We merely hold that an individual owner of a business who leases three cars to that business over a period of seventeen years is not engaged in the business of leasing motor vehicles.¹¹

The further refinement of the fireman’s rule set forth in part n is not necessary for our decision in this case. Under any formulation of a fireman’s rule, we would hold that such a rule is inapplicable to the facts presented here because plaintiff’s performance of his duty as a police officer relative to William Tardiff was fully and completely discharged some two years before the incident in issue occurred.

If we were to adopt defendant Fleur’s argument that the attack on Officer Mariin was directly related to his status as a police officer, we would expand the scope of the fireman’s rule far beyond any justifiable policy rationale.

We would hold that the connection between Officer Mariin’s initial arrest of William Tardiff and Tardiff’s injury-causing attack on Officer Mariin is too attenuated to support a conclusion that “the injury stems directly from [the] officer’s police functions,” as required by Kreski and Woods. See Woods, 439 Mich 193.

Defendant Fleur also argues that because plaintiff received worker’s compensation benefits, which required a finding that plaintiff’s injury arose out of and in the course of his employment, MCL 418.301; MSA 17.237(301), his claims must be barred by the fireman’s rule. We disagree.

The “course of employment” standard is much broader than the requirement of the fireman’s rule that for a claim to be barred it must stem directly from the performance of police or firefighting duties in the context of the relevant incident. The two standards are not mutually exclusive, as defendant would have it. Therefore, we would hold that plaintiff’s receipt of worker’s compensation benefits is not dis-positive of the issue of the applicability of the fireman’s rule.

IV

In Gibbons, we would reverse the decision of the Court of Appeals in regard to the fireman’s rule, and we would affirm the decision of the circuit court in regard to defendant Simko’s claim of exemption from ownership liability. In Mariin, we would affirm the decision of the Court of Appeals. And in both cases, we would remand the matters to the trial court for proceedings consistent with this opinion.

Mallett, C.J., and Kelly, J., concurred with Cavanagh, J.

1 Apparently, plaintiff’s traffic-directing activity was supplemental to the still-operative traffic light at the intersection.

2 Defendant Simko is the owner of Mound Steel & Supplies, Inc. Defendant Caraway, who is Simko’s daughter, is an employee of Mound Steel & Supplies, Inc.

3 There is conflicting deposition testimony on this and other factual issues, which will be resolved by the trial court on remand.

4 Issued January 20, 1995 (Docket Nos. 163560, 163605).

5 Defendant Fleur, Inc., owns and operates Wally’s Bar.

6 At the motion hearing, plaintiffs counsel informed the court that Tardiff had been served but had not responded, and that a default against him had been filed. Plaintiff’s counsel averred that Tardiff’s whereabouts were unknown. In any event, Tardiff was not a relevant party in this case in the Court of Appeals, nor is he a relevant party in this Court.

7 The trial court did not specify the basis of its grant of summary disposition, but our review of the motion hearing transcript shows that factual evidence in addition to the pleadings was considered. Therefore, we view the motion as having been granted pursuant to MCR 2.116(C)(10).

8 Of course, this statement should not be taken to prevent application of these “exceptions” when Kreski’s fundamental policy rationale is inapplicable.

8 In this regard, Sergeant Woods’ situation was very much like that of the plaintiff police officer in Reetz (the companion case to Kreski). In the Reetz portion of the opinion, we stated: “It was plaintiff’s duty to investigate the burglary, despite the inherent dangers. In performance of her duty, plaintiff took the premises as she found them, with no representations being made regarding their safety.” Kreski, 429 Mich 378, quoted in Woods, 439 Mich 191, n 4.

9 We reiterate that the relevant facts are in dispute. Therefore, in the context of this (C)(10) motion, we view the facts in the light most favorable to the nonmoving party, i.e, plaintiff.

10 The relevant bills were HB 4685 and HB 4721.

11 We decide this issue as a matter of statutory interpretation — i.e., as a question of law — and therefore fmd it unnecessary to address defendant Simko’s arguments relying on MCR 2.116(G)(4) and (H)(1).