CLICK HERE TO READ ENTIRE EDITION
GovLaw – January 2015 Edition
From the Law Offices of Garan Lucow Miller, P.C.
From the Co-Editors
John J. Gillooly & Jami E. Leach
Garan Lucow Miller, P.C. 1000 Woodbridge Street, Detroit, Michigan 48207 313.446.5501
**********************************
Firefighter’s Rule
The Michigan Supreme Court recently granted leave to appeal from the Michigan Court of Appeals to determine the applicability of the Firefighter’s Rule. The case is Lego v. Liss. Both parties are police officers. The defendant accidentally shot the plaintiff while both were at a crime scene. The Michigan Supreme Court has asked the parties to address the following issues:
(1) whether, and if so to what degree, a defendant governmental actor’s mental state or level of culpability is relevant to determining what constitutes normal, inherent, and foreseeable risks of the firefighter’s or police officer’s profession, under MCL 600.2966; and
(2) whether the defendant’s alleged violation of numerous departmental safety procedures is relevant to determining whether the shooting in this case was one of the normal, inherent and foreseeable risks of plaintiff Michael Lego’s profession.
********************
Public Building Exception
The Michigan Court of Appeals, in an unpublished opinion issued on December 9, 2014, held that the walkway from the building to the parking lot was not physically abutting, built into, or otherwise connected to the building. The Court reiterated that exceptions to Governmental Immunity must be narrowly construed. While there are situations where the public building exception can apply to parts of a building that extend beyond the wall, such as a terrace, the walkway at issue in this case fell outside the exception. The case is Standen v. Alpena Community College, Unpub COA No. 317466, December 9, 2014.
********************
Governmental Immunity and Intentional Torts
In Garlick v. Harless, plaintiff brought suit against the defendant police officer alleging assault and battery and gross negligence. The Court held that the proper test for whether a government employee has immunity from an intentional tort claim is the test established in Ross v. Consumers Power Co, 420 Mich 567 (1984). The Ross test requires the following: 10 that the acts were undertaken during the course of employment and the employee was acting, or reasonably believed he was acting, within the scope of his authority, 2) the acts were undertaken in good faith, or were not undertaken in malice, and 3) the acts were discretionary and not ministerial. Odom v. Wayne County, 482 Mich 459 (2008).
On the other hand, the Court held that the trial court erred in using the Ross test to determine whether defendant should have governmental immunity for the gross negligence claim. The test for gross negligence is that found in MCL 691.1407(2):
(a) The officer, employee, member, or volunteer is acting or reasonably believes he or she is acting within the scope of his or her authority.
(b) The governmental agency is engaged in the exercise or discharge of a governmental function.
(c) The officer’s, employee’s, member’s, or volunteer’s conduct does not amount to gross negligence that is the proximate cause of the injury or damage.
Often the pivotal point will be (c) whether the conduct amounts to gross negligence that is the proximate cause of the injury or damage. Robinson v. Detroit, 462 Mich 439 (2000) held that “the proximate cause” in this section means “the one most immediate, efficient, and direct cause preceding an injury”. In Garlick, the Court of Appeals found that there was no evidence establishing that the officer’s acts alone were the one most immediate, efficient, and direct cause of plaintiff’s alleged injury. Plaintiff’s refusal to comply with the officer’s direct orders to leave the vehicle resulted in the physical contact aimed at getting her to exit the vehicle. Therefore, plaintiff’s conduct was a contributing cause and defendant’s conduct could not be the proximate cause of injury.
Ultimately, the Court of Appeals held that there was a question of fact as to whether defendant was acting in good faith and under Ross, the assault and battery claim survived summary disposition. The Court held that defendant was entitled to governmental immunity on plaintiff’s gross negligence claim. The case is Garlick v. Harless, Unpublished COA #317650, November 20, 2014.
*******************
Exciting News!!
Garan Lucow Miller, PC is pleased to announce that it will move its Detroit office into the Crain Communications Inc. headquarters building on Gratiot Avenue in Detroit. The move is expected to be finalized in June 2015.
The firm has long been committed to educating its clients in various areas of the law. The new property, which is only a few blocks from our current location, will include a high-tech instructive classroom and space to have Webinars and connect digitally with clients across the country which will enable us to take educating our clients to another level.
Garan Lucow Miller, P.C. has ten offices throughout the State of Michigan and in Indiana to serve all of your municipal needs:
Genesee County Office 1-800-875-3700
Grand Traverse Office 1-888-923-1611
Indiana Office 1-877-804-2801
Ingham County Office 1-888-910-0300
Kent County Office 1-800-494-6312
Oakland County Office 1-800-875-7600
St. Clair County Office 1-800-875-4400
Washtenaw County Office 1-800-878-5600
Wayne County Office 1-800-875-1530
Upper Peninsula Office 1-888-841-7772
*Please visit our website for more information regarding our offices, attorneys, practice areas and other helpful publications at www.garanlucow.com
We are happy to answer any questions you may have and provide any further information that might assist your municipal leaders or attorneys. Feel free to call us directly at 313.446.5501 (John Gillooly) or 313.446.5538 (Jami Leach). To add or remove a name from this email list, please write to ecarty@garanlucow.com