Summary
noting that there was "no question of material fact" regarding the foreseeability of a police officer's getting shot by a fellow officer while engaging a shooter, and thus holding that the plaintiff's injury arose from an inherent risk under MCL 600.2966 and the defendant was immune from liability
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Docket Nos. 149246 149247. Calendar No. 3.
01-04-2016
LEGO v. LISS.
Stefani & Stefani, Professional Corporation by Michael L. Stefani, Royal Oak, Matthew S. Slazinski, and Frank J. Rivers, for plaintiffs. Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Matthew Schneider, Chief Legal Counsel, and Joseph T. Froehlich, Assistant Attorney General, for defendant.
Stefani & Stefani, Professional Corporation by Michael L. Stefani, Royal Oak, Matthew S. Slazinski, and Frank J. Rivers, for plaintiffs.
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Matthew Schneider, Chief Legal Counsel, and Joseph T. Froehlich, Assistant Attorney General, for defendant.
Opinion
PER CURIAM.
We granted leave to appeal in this case to consider 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, Jake Liss, a police officer, shot the plaintiff Michael Lego, also a police officer. Lego and his spouse, Pamela Lego, 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. We granted leave to appeal. 497 Mich. 926, 856 N.W.2d 551 (2014). We reverse in part the judgment of the Court of Appeals and remand this case to the Wayne Circuit Court for entry of an order granting summary disposition to the defendant.
Lego v. Liss, unpublished opinion per curiam of the Court of Appeals, issued March 27, 2014 (Docket Nos. 312392 and 312406), 2014 WL 1268586. The Court of Appeals also affirmed the trial court's denial of summary disposition to defendant based on the worker's compensation exclusive remedy provision, MCL 418.131(1), and defendant has not appealed that ruling.
Specifically, we disagree 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. [Emphasis added.]
The majority 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 majority 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 [Michael Lego's] 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.
MCL 600.2967(1) provides in pertinent part:
Except as provided in [MCL 600.2966], a firefighter or police officer who seeks to recover damages for injury or death arising from the normal, inherent, and foreseeable risks of his or her profession while acting in his or her official capacity must prove that 1 or more of the following circumstances are present:
(a) An injury or resulting death that is a basis for the cause of action was caused by a person's conduct and that conduct is 1 or more of the following:
(i ) Grossly negligent.
(ii ) Wanton.
(iii ) Willful.
(iv ) Intentional.
(v ) Conduct that results in a conviction, guilty plea, or plea of no contest to a crime under state or federal law, or a local criminal ordinance that substantially corresponds to a crime under state law.
The undisputed facts here are that Michael Lego was shot by the defendant as both were attempting to apprehend an armed robbery suspect. As the Court of Appeals partial dissent correctly concluded, “being shot by a fellow police officer while engaging an active shooter is one of ‘the normal, inherent, and foreseeable risks of ... [a] police officer's profession’ within the meaning of MCL 600.2966.” This is true irrespective of whether the defendant was acting consistently with his training and departmental safety procedures or whether the defendant was grossly negligent while attempting to apprehend the suspect in this case. Thus, no question of material fact remains unresolved.
This conclusion does not mean, as the Court of Appeals majority suggested, that being shot by another officer is “always, as a matter of law, a normal, inherent, and foreseeable risk of being a police officer.” Lego, unpub. op at 2. It simply means that the fact that there is a question whether the defendant acted with gross negligence cannot alone transform a normal, inherent, and foreseeable risk of a police officer's profession into one that is not normal, inherent, and foreseeable.
To the extent that the Court of Appeals majority opinion relied on the federal district court decision in Rought v. Porter, 965 F.Supp. 989, 994 (W.D.Mich., 1996), we agree with Court of Appeals Judge Jansen in her partial dissent that it is not binding. Lego, unpub. op. at 2 (Jansen, P.J., concurring in part and dissenting in part). See also Abela v. Gen. Motors Corp., 469 Mich. 603, 607, 677 N.W.2d 325 (2004) (stating that lower federal court decisions are not binding on state courts). Further, while the phrase “normal, inherent, and foreseeable risks” can be traced to our interpretations of the common-law firefighter's rule, see e.g., Kreski v. Modern Wholesale Electric Supply Co., 429 Mich. 347, 351, 372, 415 N.W.2d 178 (1987), we are not bound by those interpretations because the common-law rule has been abolished, MCL 600.2965, and the phrase has not clearly acquired a “peculiar and appropriate meaning in the law,” MCL 8.3a.
Accordingly, the defendant is entitled to immunity as a matter of law. We reverse in part the judgment of the Court of Appeals and remand this case to the Wayne Circuit Court for entry of an order granting summary disposition to the defendant.
YOUNG, C.J., and MARKMAN, ZAHRA, McCORMACK, VIVIANO, BERNSTEIN, and LARSEN, JJ., concurred.