“Gross Negligence” Exception to Governmental Immunity Under Attack in Cases Against First Responders / Law Enforcement Officers

The Court of Appeals has released two cases that appear to undermine the meaning of the “statutory” “gross negligence” exception, MCL 691.1407(2) under Michigan’s Governmental Tort Liability Act (GTLA). The GTLA, MCL 691.1401 et seq., provides immunity for law enforcement officers and other individual governmental employees engaged in the discharge of a governmental function and while performing duties authorized by their position.  The only exceptions to an individual governmental employee’s immunity are the statutory “gross negligence” exception and the “bad faith / intentional tort” exception, the latter of which was articulated by the Michigan Supreme Court in the seminal case of Odom v. Deputy Christine Kelly and Wayne County, 482 Mich. 459 (2008), a case I successfully briefed and argued in the Supreme Court on behalf of Wayne County.

MCL 691.1407(2) provides that a governmental agency’s employee is “immune from tort liability” caused by the employee “while in the course of employment” if all of the following are true: (1) the employee is acting, or reasonably believes he or she is acting, within the scope of his or her authority; (2) the governmental agency is engaged in the exercise or discharge of a governmental function; and (3) the employee’s conduct does not amount to gross negligence that is the proximate cause of the injury or damage. MCL 691.1407(2).

The phrase “gross negligence” in the GTLA is a “statutory standard”, and thus is defined and applied by reference to the statute and the case law interpreting it.  See Costa v. Community Emergency Medical Services, Inc., 475 Mich. 403, 411-412 (2006), see also Odomsupra at 470.  Thus, common-law definitions and applications of “gross negligence” are not binding.

For example, an important product of limiting the standard by statute is exemplified in the Supreme Court’s decision in Robinson v. City of Detroit, 462 Mich. 439 (2000), which ruled, inter alia, that the statute required the employee’s conduct to be “the proximate cause” of the harm.  Id. at 445-446.  This means liability against the governmental employee, in that case law enforcement officers, can be imposed under the gross negligence exception only where the employee’s conduct is “the one, most immediate, efficient, and direct cause…of injur[y]….”  Id.  This is a crucial principle as in many cases the actions and reactions of governmental employees (especially, as in these cases, first responders and law enforcement officers) often occurs as the result of someone else’s negligent or criminal actions.  Since the statute requires to prove “gross negligence” against the employee, it must be shown the employee’s conduct was the proximate cause, i.e., the most immediate, efficient, or direct cause of the injuries complained of, liability can often be avoided by demonstrating the negligence of another, or even a break in the direct causal chain between the officer’s alleged “gross negligence” and the harm complained of.

The statute further defines “gross negligence” as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” MCL 691.1407(7)(a) .

Importantly, although this is a substantive legal issue that has not been definitively resolved, the burden of pleading a cause of action in avoidance of governmental immunity rests on the claimant. Compare Mack v. City of Detroit 467 Mich. 186 (2002), with Odom v. Wayne County, 482 Mich. 459 (2008).  The principle established in Mack is based on the jurisdictional principle of governmental immunity adhered to in Michigan.  Therefore, “immunity” is an inherent characteristic of government and cannot be waived without explicit consent of the Legislature.  Thus, merely pleading facts in avoidance of immunity, without more, is insufficient to invoke the subject-matter jurisdiction of the courts over the cause of action.

Basically, allegations in a complaint should be supported by undisputed facts in order to lift the veil of immunity protecting the government.  However, this is not how the courts have interpreted and applied the principle of governmental immunity.  In Odomsupra, the Court made a distinction between actions brought against governmental entities, and actions brought against individual governmental employees.  In the latter case, for some unexplained reason, the Court noted that plaintiff’s did not bear the burden of pleading and proving an action in avoidance of immunity.  The ruling was not dispositive in the case, and thus, the case itself does not serve as precedent for the principle stated.

In these two recent cases, however, this application led the courts to find “questions of fact” based on alleged disputed evidence, and the allegations in the plaintiffs’ complaint alone, which were not necessarily supported by demonstrations of undisputed fact.

The facts of these two cases are remarkable.  In Estate of Young v. Pierce, the defendant, an emergency “first responder” employed by Montcalm County was responding to an emergency dispatch when he ran through a stop sign and crossed into an intersection.  His vehicle struck another vehicle killing the two occupants.  The Court of Appeals notes it was undisputed that the defendant ran through the stop sign, and that traffic on the cross road had the right of way. According to witnesses, the defendant was traveling at a high rate of speed (estimated at 80 mph) approximately 30 seconds before he arrived at the intersection; he had not activated his emergency lights or sirens, and he did not stop or slow down at the intersection.  The defendant claimed he did slow down and look before entering the intersection.  He also testified that he had activated his siren.

The trial court denied summary disposition on governmental immunity grounds per MCR 2.116(C)(7).  The Court of Appeals affirmed.  The Court noted there were “disputed factual” questions that could not be resolved without referring those questions to the scrutiny of a trial by jury.  Principally, the Court of Appeals panel noted the question of whether the defendant’s conduct rose to the statutory standard of “gross negligence” sufficient to withstand the governmental immunity defense was a question of fact to be resolved by the jury.

In Howard v. Pena, the defendant, a state trooper got lost while driving to a scheduled event for which he was assigned to provide law enforcement assistance.  He made a u-turn on a one-way street and crashed head-on into the plaintiff’s vehicle.  The plaintiff suffered serious injuries.  Testimony and other evidence presented demonstrated that there were signs indicating that the street was one-way.  The state trooper testified he was aware of the traffic regulations, but did not know that he was turning the wrong way onto a one-way road.

On reconsideration of an earlier dismissal order, the trial court ruled that because defendant had admitted to ignoring certain traffic control devices in violation of the law there was a question of fact as to whether his conduct rose to the level of gross negligence.

The Court of Appeals affirmed.  The Court applied the pleading rule that all allegations favored plaintiff, and thus, a question of fact remained as to whether the defendant’s conduct was “grossly negligent”.

These two cases highlight separate extant problems in the application by lower appellate courts of the statutory “gross negligence” standard.  In Estate of Youngsupra, the Court allowed unsupported factual allegations to substitute for the type of supported factual allegations that should be required to prove in avoidance of immunity.  The Court of Appeals has stated, and the Supreme Court has agreed on more than one occasion, that governmental immunity means more than immunity from liability; it is supposed to provide immunity from litigation, i.e., the costs and expenditure of time and resources the government must commit to defend lawsuits based only on the unsupported allegations in a complaint.  If immunity from litigation can be avoided simply by factual allegations and unsupported claims then the purpose of immunity is irrelevant.  While the factual dispute in this case is whether and to what extent the defendant heeded the stop sign and provided proper warning, there was no question that he was responding to an emergency.  And, despite how the lower appellate courts have applied “gross negligence”, it is a standard that requires nearly culpable conduct, recklessness, and a demonstration of lack of care or compassion about the consequences of one’s conduct.  It is a standard that should be difficult to prove.

In Howard, the issue is a bit more subtle.  The lower court, and apparently, the Court of Appeals, latched on to the fact that the state trooper knew and disregarded the basic rules of traffic regulation.  But the panel does not demonstrate that there were factual disputes about the defendant’s state of mind.  Thus, although the trooper was not responding to an emergency and may have had more time to heed the conditions of traffic and his whereabouts, it seems the panel substitutes a disregard for the traffic regulations, for the statutory standard which requires a showing of a mental state rising to the level of reckless disregard and lack of concern about whether injury results in engagement of the conduct at issue.  The analysis in the latter case may have been sound if there was direct evidence that the trooper was intentionally turning the wrong way to get to the location he was supposed to be at on time.  In other words, if there was proof that the trooper knew he was turning the wrong way, and did so anyway because it was a short cut to the venue.  That seems to be the type of proof required by the statute as a reckless disregard and a willful ignorance of the potential consequences.

These two cases present difficult factual circumstances.  However, the rulings of law appear to allow unwarranted expansion of the “gross negligence” exception.  It will be interesting to see whether further appellate review will occur.

Carson J. Tucker has participated in and argued some of the most significant governmental immunity cases in Michigan during the past decade.

Mr. Tucker presented direct representation to the governmental defendants and prosecuted the entire appeal, including all appellate briefings and oral arguments before the Court of Appeals and Supreme Court in the following cases:

  • Estate of Truett v. Wayne County, Unpublished Opinion of the Michigan Court of Appeals, dated May 6, 2014 (Docket No. 313638), briefed and argued by Carson J. Tucker for Wayne County
  • Atkins v. SMART, 492 Mich. 707 (August 20, 2012), application granted, and briefed and argued by Carson J. Tucker in the Supreme Court
  • Gentry v. Wayne County Deputy Sheriff Daniel Carmona, unpublished opinion of hte Michigan Court of Appeals, dated October 11, 2011 (Docket No. 296580), briefed and argued by Carson J. Tucker in the Court of Appeals
  • Hamed v. Wayne County, 490 Mich. 1 (July 29, 2011), briefed and argued by Carson J. Tucker in the Court of Appeals and Supreme Court
  • Odom v. Wayne County, 482 Mich. 459 (December 30, 2008), application for leave to appeal granted, and briefed and argued by Carson J. Tucker in the Supreme Court

In addition, Mr. Tucker has provided direct support to governmental entities in filing “friend of the court”, i.e., amicus curiae briefs in support of the governmental defendants in the following cases:

  • Yono v. MDOT, ___ Mich. App. ___ (2014), after remand order, amicus curiae brief filed for Michigan Municipal League and Michigan Townships Association on June 16, 2014, after remand by Carson J. Tucker
  • State Farm v. MMRMA, amicus curiae in Supreme Court for Oakland County, Wayne County, Macomb County, and Wayne County in support of MMRMA’s application, by Carson J. Tucker
  • Hannay v MDOT, ___ Mich ___ (2014), application granted and consolidated with Hunter v. Sisco, amicus curiae filed for Michigan Townships Association, Macomb County, Oakland County and Wayne County, et al., by Carson J. Tucker
  • Hagerty v Manistee, 493 Mich 933 (2013), amicus curiae in Michigan Supreme Court for Michigan Municipal League, et al., by Carson J. Tucker

Effective appellate representation demands different skills than those required by litigation attorneys.  Appellate attorneys are adept at analyzing the intricacies of each case from an objective and critical perspective.  From reviewing and preparing the lower court record, identifying errors for appeal, and developing a strategy to raise those issues that will be addressed by appellate courts, appellate attorneys are capable of handling the most complex appeals from the application stage to oral advocacy before the highest courts.  Our research abilities and knowledge of current issues in nearly all major subject-matter areas of the law provide our clients with efficient and immediate assistance with complex and high-exposure cases.

We are also experienced at navigating through all appellate courts to shepherd the appeal in the most expeditious fashion possible so that it can be reviewed and quickly ruled upon.

Below are some of the recent significant cases prosecuted by the Appeals and Legal Research Group.

  • Omian v. Chrysler, LLC, Michigan Court of Appeals Docket No. 310743, remanded by Supreme Court as on leave granted, Supreme Court No. 146908, oral argument presented July 16, 2014 by Carson J. Tucker for Chrsyler, LLC
  • Moore v. Nolff’s Construction and Travelers Ins., Michigan Court of Appeals Docket No. 313478 and 313440 (consolidated), application and cross-application granted and oral argument in Court of Appeals presented July 2014 by Carson J. Tucker for Nolff’s Construction and Travelers Insurance
  • Arbuckle v. GM, Michigan Court of Appeals Docket No. 310611, oral argument in Court of Appeals presented May 2014 by Carson J. Tucker for GM
  • Yono v. MDOT, ___ Mich. App. ___ (201_), amicus curiae brief filed for Michigan Municipal League and Michigan Townships Association on June 16, 2014, after remand by Carson J. Tucker
  • Estate of Truett v. Wayne County, Unpublished Opinion of the Michigan Court of Appeals, dated May 6, 2014 (Docket No. 313638), briefed and argued by Carson J. Tucker for Wayne County
  • Omian v. Chrysler Group, LLC, 495 Mich. 859 (2013), application filed by Carson J. Tucker, Supreme Court remand to Court of Appeals on leave granted, oral argument to be held in July 2014
  • Ghanam v. John Does, 303 Mich. App. 522 (2013), application to appeal filed in Supreme Court by Carson J. Tucker
  • State Farm v. MMRMA, ___ Mich App ___ (2013), amicus curiae for Oakland County in support of MMRMA application, by Carson J. Tucker
  • Hannay v MDOT, ___ Mich ___ 201_), application granted, amicus curiae filed for Michigan Townships Association, Macomb County, Oakland County and Wayne County, et al., by Carson J. Tucker
  • Yono v. MDOT, ___ Mich ___ (201_), oral argument on application granted, amicus curiae for Oakland, Macomb and Wayne County filed by Carson J. Tucker in support of the state’s application
  • Huddleston v. Trinity Health, et al., 495 Mich. 976 (2014), oral argument on application granted, amicus curiae with Lawrence Garcia, Esq., for MDTC
  • Ashley, LLC v Pittsfield Twp., 494 Mich 875 (2013), application granted, for Pittsfield Township by Carson J. Tucker (resolved by settlement)
  • Bailey v. Schaaf, ___ Mich ___ (2013), amicus curiae for MDTC by Carson J. Tucker
  • Atkins v. SMART, 492 Mich 707 (2012), oral argument on application, Court of Appeals case reversed by opinion, Carson J. Tucker
  • Hagerty v Manistee, 493 Mich 933 (2013), amicus curiae for Michigan Municipal League, et al., by Carson J. Tucker
  • McMurtrie v Eaton Corp, 490 Mich 976 (2011)
  • Findley v DaimlerChrysler Corp., 490 Mich 928 (2011)
  • Brewer v. AD.Transport Express, Inc, 486 Mich 50 (2010)
  • Stokes v Chrysler, 481 Mich 266 (2008)
  • Brackett v Focus Hope, Inc, 482 Mich 269 (2008)
  • Rakestraw v Gen Dynamics, 469 Mich 220 (2003)

About cjtucker06

Owner of law firm since July 2014; Handles all types of appellate matters and assists other lawyers with complex litigation and insurance coverage issues; Admitted to the Supreme Court of the United States, the Sixth Circuit Court of Appeals and the State Bar of Michigan; Expertise in prosecuting and defending appeals with several significant successes in the Sixth Circuit Court of Appeals, the Michigan Supreme Court and the Michigan Court of Appeals; Author of briefs amicus curiae in the Michigan Supreme Court for the Michigan Defense Trial Counsel and the Insurance Institute of Michigan; Represents Insurance Companies, Major International Business, Governmental Entities, Law Enforcement Officers and County Sheriffs. Board of Directors, Michigan Defense Trial Counsel Amicus Committee Co-Chair, Michigan Defense Trial Counsel Military - Retired Major in the Judge Advocate General (JAG) Corps of the United States Army, Brigade Judge Advocate and Staff JAG officer for the Maneuver Training Center, Camp Grayling, Michigan; Recipient of the Army's Meritorious Service Medal (the highest medal of honor available to Soldiers serving in non-combat roles); 2012 Graduate of the Judge Advocate Officer Advanced Course, at The Judge Advocate Legal Center and School, Charlottesville, Virginia. United States Navy Reserves, Combat Warfare Qualification, January 1989 to July 2003 Former law clerk to Justice Stephen J. Markman, Michigan Supreme Court, Research Attorney, Michigan Court of Appeals. Insurance Coverage Associate Plunkett Cooney; Environmental Law Attorney at Squire Sanders, now Squire Patton Boggs; Master's Degree in Environmental Law; Environmental Law Scholar, ALI/ABA Washington, D.C., Juris Doctorate, Vermont Law School, Environmental Editor, Vermont Law Review; Treasurer and Finalist, Moot Court Advisory Board.
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