Académique Documents
Professionnel Documents
Culture Documents
1379, *
Winter, 1995
Jacqueline Monte
SUMMARY:
... In Jennings v. Southwood, the Michigan Supreme Court considered
the issue of whether the common law definitions of "gross negligence"
and "wilful and wanton" misconduct were workable within the
Emergency Medical Services Act ("EMSA"). Fundamental to this issue,
was the determination of the current definitions of "gross negligence"
and "wilful and wanton" misconduct standards, as applied to the scope
of immunity applicable to emergency services personnel in light of
Michigan's comparative negligence standard. ... The Michigan Supreme
Court examined gross negligence and wilful and wanton misconduct in
terms of applying liability to governmental employees. ... The court
held that the Gibbard definition of gross negligence was contrary to the
purpose of the EMSA in that it permitted liability on a finding of
ordinary negligence, which would void the immunity provision of the
EMSA. ... Once a proper definition of "gross negligence" was adopted,
the Jennings court turned to the issue of whether the Michigan courts
should continue to apply the standard for "wilful and wanton"
misconduct as explained in Gibbard. ... The division between "wilful
and wanton" misconduct and ordinary negligence was said to be the
probability that an injury might occur, if not a specific intent that it
does. ... In spite of this abrogation of contributory negligence in 1979,
Michigan had begun to apply the Gibbard standard to "wilful and
wanton" misconduct as well as "gross negligence" as soon as 1981. ...
TEXT:
[*1379] INTRODUCTION
In Jennings v. Southwood, the Michigan Supreme Court considered the
issue of whether the common law definitions of "gross negligence" and
"wilful and wanton" misconduct were workable within the Emergency
Medical Services Act ("EMSA"). 1 Fundamental to this issue, was the
determination of the current definitions of "gross negligence" and
"wilful and wanton" misconduct standards, as applied to the scope of
immunity applicable to emergency services personnel in light of
Michigan's comparative negligence standard. 2
This Note will review the history of "gross negligence" and its
reconstruction with the abrogation of contributory negligence in
Michigan. Further, this Note will examine the level of negligence
[*1380] required to maintain an action against an emergency medical
services worker as stated in the consolidated cases of Jennings and
Boroditsch. 7 Finally, this Note will interpret the impact the Jennings
decision will have on Michigan law.
I. BACKGROUND
A. Gross Negligence
1. Common Law
Prior to Placek, in the case of Kirby v. Larson, 37 but for the fact that
the case was heard by six Justices instead of seven, comparative
negligence would have been established in Michigan in 1977. 38 The
ultimate disposition in Kirby included two opinions, each one
representing the views of three Justices. 39 In part IX of the opinion,
written by the proponents of comparative negligence, an analysis was
made as to the propriety of judicial versus legislative abrogation of
contributory negligence and the adoption of comparative negligence.
40 Citing the Michigan Constitution, the court held that there was no
issue as to whether both the Supreme Court of Michigan and the
Michigan Legislature have the constitutional power to change common
law. 41 When asked whether a judicial forum is appropriate for
adoption of comparative negligence, the court noted that in three of
the states then employing comparative negligence, the rule was
judicially adopted. 42 The court conceded that although judge-made
[*1386] law had not been the primary agency for adoption of
comparative negligence, it was in a good, if not better, position to
evaluate the need for change and to fashion that change. 43
2. The Legislation
To examine Michigan's statutory definition of "gross negligence" as it
relates to governmental agencies and emergency services, it is first
necessary to look to other jurisdictions to understand how Michigan is
unique. 44 Plaintiffs will often use the statutory obligations of certain
governmental agencies to operate emergency services as a basis to
argue that governments have a constitutional duty to rescue the
individual in a negligence-free manner. 45 Proponents of this belief
state that the failure to properly rescue an individual in danger is
equivalent to denying them life and liberty as guaranteed by the
Fourteenth Amendment. 46
The Court ultimately held that if special duties are created by state tort
law, the state may be subject to suit since, through its courts and
legislature, it can impose affirmative duties of care and protection on
its agents as it wishes. 52 It added that not "'all common-law duties
owed by the government actors were . . . constitutionalized by the
Fourteenth Amendment.'" 53 Authorities argue that while DeShaney
stated that an individual had no reason to expect constitutionally
guaranteed protection, the plaintiff's reliance is enough to establish a
common-law duty, in effect, imposing a special duty on the emergency
services system to rescue the individual. 54 Once a special duty is
created, anything improper, negligent, or tortious should create liability
that cannot be circumvented by governmental immunity. 55
The Michigan Supreme Court was presented with the issue of whether
liability may be imposed upon a governmental agency pursuant to the
provision of the EMSA, despite the across-the-board immunity granted
in the GTLA in Malcolm. 74 The plaintiff maintained that the EMSA
created an exception to the GTLA when, as in this case, the city
engaged in wilful misconduct in sending untrained personnel to treat
the plaintiff. 75 The court decided that the EMSA, as it related to
vicarious liability, modified section 7 of the GTLA with respect to those
persons listed in the first sentence of the EMSA. 76 In addition, the
court stated that the Gibbard gross [*1391] negligence definition was
to be maintained, as required in Burnett, until a future case
necessitated revisiting the opinion. 77
The Pavlov court conceded that "few aspects of negligence law have
proven more frustrating to this state's courts than the construction of
the term 'gross negligence.'" 83 In trying to interpret the statutory
meaning of "gross negligence," the court first turned to [*1392] court-
made law and the leading case of Gibbard. 84 The court relied on
Gibbard to point out that the historical context of "gross negligence"
was to be a plaintiff's doctrine to avoid the bar of contributory
negligence. 85 The Pavlov court noted that the Gibbard definition of
gross negligence had remained unaltered, in spite of Michigan's
adoption of comparative negligence. 86
Although standards have been set to help courts identify the requisite
conduct, they are not of much assistance in dealing with practical
application to current disputes. 105 Gibbard is an example of such a
situation where the court set a standard that was fraught with
problems. 106 The Michigan Supreme Court noted that, under the
proper conditions, "gross negligence" is sometimes called "wanton" or
"wilful" or "reckless" negligence. 107 The court stated that wilfulness
[*1395] or wantonness transcend negligence in kind because the acts
are characterized by wilfulness, rather than inadvertence. 108 In the
Gibbard three-prong test, 109 the key factors were knowledge,
avoidance of harm, and conscious disregard of the resulting harm. 110
Commentators argue that the "knowledge of the risk" element is used
together with the "conscious disregard" element to help distinguish the
difference between a culpable state of mind and someone acting with
ordinary negligence. 111
By finding that the EMSA provided immunity for the defendants, the
court held that the unambiguous language and intent of the legislature
was to grant EMS personnel immunity unless they were acting in
"gross negligence" or with "wilful" misconduct. 121 After giving the
above rules of statutory construction, the court defined "wilful" and
[*1397] "wanton" conduct and "gross negligence" based on case law.
122 "Wilful" and "wanton" misconduct was held to require a showing
that the defendant intended harm or was indifferent as to whether
harm would result. 123 The court disagreed with the plaintiff's
contention that gross negligence and wilful and wanton misconduct
were correctly pled under the EMSA and held that the trial court did not
err in granting summary disposition to the defendants on the grounds
of statutory immunity. 124
A. Facts
2. Jennings v. Southwood
B. Procedural History
1. Jennings v. Southwood
i. Gross Negligence
The Jennings court addressed the issue of whether the common law
definitions of gross negligence and wilful and wanton misconduct are
viable in light of the EMSA. 164 The Michigan Supreme Court examined
gross negligence and wilful and wanton misconduct in terms of
applying liability to governmental employees. Initially, the court
examined gross negligence in relation to its common law definition and
application. 165
[*1402] Gibbard 166 was cited to explain how Michigan fashioned the
rule of gross negligence to circumvent the harsh rule of contributory
negligence. 167 The Jennings court explained that negligence under
the Gibbard standard was not a high degree or level of negligence, it
was merely the ordinary negligence of the defendant that followed the
negligence of the plaintiff. 168 Since the doctrine of contributory
negligence was abandoned in Placek v. City of Sterling Heights, 169
the court necessarily eliminated the need for the Gibbard definition of
gross negligence. 170 The adoption of pure comparative negligence
removed the imperfection of the unfair and unjust result the Gibbard
court sought to avoid. 171
The court cited Finkler v. Zimmer, 172 which stated the proposition
that the number and variety of names given to the same doctrine
(gross negligence) was deplorable. 173 The Jennings court held that
while it recognized the venerable tradition of a seventy-year-old
doctrine, it must lay aside the Gibbard definition of gross negligence
because it had outlived its usefulness. 174 While it valued precedent
and adherence to the law, the court held that when the precedent
[*1403] failed to serve the law, it must "sacrifice stability" to fulfill its
obligations. 175
Before flatly rejecting the Gibbard definition of gross negligence, the
Jennings court acknowledged that it would be "remiss" if it did not
analyze the EMSA and its purpose as enacted by the legislature. 176
The court held that the Gibbard definition of gross negligence was
contrary to the purpose of the EMSA in that it permitted liability on a
finding of ordinary negligence, 177 which would void the immunity
provision of the EMSA. 178 The court determined that an imposition of
the Gibbard rule would discourage participation in emergency medical
services. 179
The Jennings court held that it must give effect to the intent of the
legislature. 180 As the imposition of the Gibbard standard failed to
promote participation in the EMS field by permitting liability on a
finding of ordinary negligence, it was contrary to the legislative intent
of providing limited immunity and must fall. 181 In addition to the
rejection of the traditional justifications for the Gibbard standard,
failure to promote the intent of the legislature, in and of itself,
demanded its demise. 182
i. Gross Negligence
3. Jennings v. Southwood
The court turned to Malcolm v. City of East Detroit 203 for guidance as
to whether it could impose liability on a governmental agency
according the provisions of the EMSA, despite the immunity granted in
the GTLA. 204 The court held that since the errors were [*1407] no
longer harmless in light of the new consideration regarding gross
negligence and wilful and wanton misconduct, the judgments of the
court of appeals should be vacated and the case should be remanded
for further consideration of whether the errors were harmless. 205
III. ANALYSIS
The problem arose with the Gibbard three-prong test for determining
the gross negligence on the part of the defendant. 215 Superficially,
this appeared to be a fairly straight forward test. However, the
confusion it creates is apparent when attempting to apply it to facts.
Who is to say what ordinary care and diligence are? What is ordinary
care? What is obvious? These questions are so discretionary that they
would appear to create sometimes unjust and inequitable results. In
attempts to circumvent this dilemma, states have written statutes
addressing these issues. 216 While these might have been an initial
help, the question still remains of how to define and apply the terms
"gross negligence" and "wilful and wanton" misconduct. The meaning
of this test and its application has been discussed in many contexts in
cases that have come before the court involving statutory
interpretations. 217 In its attempt to clarify the situation, the Gibbard
court stated that when there is precedent negligence on the part of the
plaintiff, and the defendant, by subsequent negligence, does the
plaintiff harm, there would be a basis of recovery. 218 Not surprisingly,
a problem arose when applying the Gibbard standard ". . .in the
context of emergency medical service . . . it is ludicrous to attempt to
portray human suffering and trauma inflicted by the forces of nature
[*1409] or society as negligence in order to establish gross negligence
as defined by case law." 219
The Jennings court was concerned that the problem in applying this
formula seemed to be not so much the test itself, but the application of
the test in light of conflicting standards to emergency medical services
personnel. 220 In support of this, commentators have premised that
courts often incorrectly equate "gross negligence" with "wilful or
wanton" misconduct. 221 The effect of this is that sometimes
immunization of conduct that should be sanctioned occurs. 222
Therefore, if actions of EMS personnel are tortious when the conduct is
found to be wilful or wanton, they will only be accountable when they
intend the harm. 223 If the EMTs are held liable for grossly negligent
actions, lawsuits will turn on factual issues which finders of fact are
well equipped to handle. 224
The most widely held justification for official immunity is the belief that
without it, the public would not get good quality government officials.
The reasoning is that all officials should be protected by immunity from
tortious claims of those who are dissatisfied with their performance so
that they can give the best possible service to the public. 225 This
belief does not have across the board acceptance. Commentators have
noted that there are several issues to consider when determining the
immunity granted to government officials. They are: (1) The danger of
influencing public officials by threat of a law suit; (2) The deterrent
effect of potential liability on people who consider entering
government employment; (3) The drain on the time of the official in
attempting to avoid unsupportable lawsuits; (4) The unfairness of
making entities liable for the acts of their employees; [*1410] and (5)
The theory that the official owes a duty to the public at large and not
the individual. 226 Michigan has dealt with these issues by the
enactment of the EMSA. 227
The immunity provision in the EMSA was written with the intent of
encouraging participation in emergency medical services. 244
However, it can also be said that with expanding notions of tort
liability, combined with a greater liberalization of social policies,
American courts now recognize that unmitigated governmental
immunity would yield unfair results for plaintiffs. 245 Today, state tort
acts generally serve to waive absolute immunity and allow plaintiffs to
sue for torts in certain circumstances. 246 In recent years, states have
eroded the concept of absolute immunity for governmental entities as
a defense for torts committed at lower governmental levels. 247 Most
states, like Michigan, apply a limited governmental immunity or hold
that immunity is not available in situations where it has been
specifically waived. 248 After determining that the legislature
specifically intended that the EMS personnel receive limited immunity,
the Jennings court acted on what it felt was a compelling need to avoid
confusion and abandoned the Gibbard three-prong test in favor of a
structured well laid-out breakdown of [*1413] the standards that
could be used in the context of both statutory interpretation and
general civil liability. 249
In citing Jennings, the court held that even if Ms. Szpara had
established a duty that was breached, she was still unable to prove
that Michigan Bell's actions rose to the level of gross negligence or
wilful and wanton misconduct as they are now defined. 268 The
Michigan Court of Appeals applied the Jennings definition of gross
negligence to the Emergency Telephone Service Enabling Act and
upheld the circuit court's order granting the defendant's motion for
[*1416] summary disposition. 269 Based on this case, one can see
that Michigan is left with a test that hardly resembles anything
previously seen.
CONCLUSION
FOOTNOTES:
n1 446 Mich. 125, 521 N.W.2d 230 (1994).
n2 Jennings, 446 Mich. at 130-31, 521 N.W.2d at 233. The adoption of
pure comparative negligence avoids the harsh results found in
contributory negligence. Id. at 130, 521 N.W.2d at 233.
n3 Jennings v. Southwood, 198 Mich. App. 713, 499 N.W.2d 460 (1993),
vacated, 446 Mich. 125, 521 N.W.2d 230 (1994). The court of appeals
issued a per curiam opinion, which affirmed judgments for the
defendants in Jennings, and granted the defendant's motion for
summary disposition in an unpublished opinion in Boroditsch v.
Community Emergency Medical Serv., Inc., No. 134371 (Mich. Ct. App.
1993).
n4 Jennings, 446 Mich. at 144, 146, 150, 521 N.W.2d at 238-39, 241.
n5 Id. at 136, 521 N.W.2d at 235. The GTLA is codified at MICH. COMP.
LAWS ANN. § 691.1407 (West 1993). The GTLA immunizes government
employees and volunteers from tort liability for any negligent acts
arising during the course of their duties, as long as the acts are not so
reckless that they show a substantial lack of concern for the result. Id.
n13 225 Mich. 311, 196 N.W. 398 (1923), overruled by Jennings v.
Southwood, 446 Mich. 125, 521 N.W.2d 230 (1994).
n15 Gibbard, 225 Mich. at 319, 196 N.W. at 399. Gross negligence is
also called discovered negligence, subsequent negligence, wanton or
wilful or reckless negligence, discovered peril, last clear chance
doctrine, and the humanitarian rule. Id. In the case of Li v. Yellow Cab
Co. of California, 532 P.2d 1226 (Cal. 1975), the California Supreme
Court held that contributory negligence is conduct by the plaintiff
which is below the standard that he is required to be held to for his
own protection, and which is a contributing factor to his harm. Li, 532
P.2d 1226.
n16 In Gibbard, the decedent was a thirteen year old girl who was run
over by a truck while walking home from school. Gibbard, 225 Mich. at
314, 196 N.W. at 399. The evidence showed that when the truck driver
sounded his horn, the decedent became frightened and ran into its
path. Id.
n21 Id. The court held that the only negligence claimed against the
decedent was that she negligently moved to the left in front of the
oncoming truck, or that she attempted to pass in front of it when it was
too late for the truck to avoid her. Id. The court went on to say that
there was no fatal error in the trial judge's determining that the
conduct was gross negligence when it was really wanton and wilful
conduct because the two terms are commonly synonymous. Id.
Furthermore, if the deceased was injured by the wilful, wanton, or
reckless misconduct of the defendants, any negligence on the part of
the decedent was no defense. Id. at 322-23, 196 N.W. at 402.
n23 Byrd, III, supra note 9, at 1388. Another famous description of the
distinction between gross negligence and recklessness is that the
categories draw "distinctions among a fool, a damned fool, and a God-
damned fool." Id. at 1388 n.28.
n26 362 S.E.2d 688 (Va. 1987). In Frazier, the injured party, a minor,
was attending a convention at Chrysler Hall and was asked to perform
with a church choir by playing the drums. Frazier, 362 S.E.2d at 690.
When the child dropped a drumstick during the performance, he
reached behind him to get it and fell from the pit platform through a
gap approximately 18 feet into the basement of the building. Id. at
690-91. The Virginia Supreme Court held that the city's failure to install
protective devices or warnings did not amount to "that degree of
egregious conduct which can be classified as a heedless, palpable
violation of rights showing an utter disregard of prudence." Id. at 691.
n27 Id.
n28 Gail D. Hollister, Note, Using Comparative Fault to Replace the All-
or-Nothing Lottery Imposed in Intentional Torts Suits in Which Both
Plaintiff and Defendant Are at Fault, 46 VAND. L. REV. 121, 122 n.2
(1993).
n30 405 Mich. 638, 275 N.W.2d 511 (1979). In Placek, the plaintiff
collided with a police vehicle that had its siren on and lights flashing.
Placek, 405 Mich. at 650-51, 275 N.W.2d at 514.
n36 Id. See also BLACK'S, supra note 10, at 282. Comparative
negligence is measured in terms of percentage, and any damages
allowed are diminished proportionately to the amount of negligence
attributable to the person who seeks recovery. Id.
n40 Id. at 624-29, 256 N.W.2d at 419-21. The court held that there was
no reluctance on the part of the court to abrogate doctrines that had
outlived their usefulness. Id. at 625, 256 N.W.2d at 419.
n41 Id. at 627, 256 N.W.2d at 420-21. See MICH. CONST. of 1908, art.
III, § 7 (1963). Any common laws and statutory laws in force that are
not repugnant to the constitution are in force until they expire by their
own limitations, are changed, amended, or repealed. Id.
n42 See supra note 32. The three states are Alaska, California, and
Florida. Kirby, 400 Mich. at 627, 256 N.W.2d at 420-21. The court in
Kirby cited several examples where judge-made law in Michigan
employed its corrective responsibilities. Examples of this included: (1)
Abrogation of the defense of assumption of the risk. Id. at 625, 256
N.W.2d at 419 (citing Felgner v. Anderson, 375 Mich. 23, 133 N.W.2d
136 (1965)); (2) Repudiation of the doctrine of imputed negligence. Id.
(citing Bricker v. Green, 313 Mich. 218, 21 N.W.2d 105 (1946)); (3)
Elimination of the privity requirement in actions for breach of implied
warranty. Id. (citing Spence v. Three Rivers Builders & Masonry Supply,
Inc., 353 Mich. 120, 90 N.W.2d 873 (1958)); (4) Overruling the
common-law disability prohibition of the wife not suing for the loss of
her husband's consortium. Id. (citing Montgomery v. Stephan, 359
Mich. 33, 101 N.W.2d 227 (1960)); (5) Overruling the common-law
disallowance of recovery for negligent infliction of prenatal injury. Id.
(citing Womak v. Buckhorn, 384 Mich. 718, 724-25, 187 N.W.2d 218
(1971)); and (6) Elimination of charitable immunity from negligence. Id.
(citing Parker v. Port Huron Hosp., 361 Mich 1, 105 N.W.2d 1 (1960)).
n43 Id. at 626-27, 256 N.W.2d at 420. Were the court to rule on
precedent alone (i.e., were stability the only reason for the court's
existence), it would have no trouble in deciding issues. Id. If the
reasons for the old rule no longer apply, then the rule must fall. Id. at
625-27, 256 N.W.2d at 419-20. However, the court held in
Montgomery, that the precedents of the older cases were not valid
precedents. Id. at 626, 256 N.W.2d at 420 (citing Montgomery, 359
Mich. at 49).
n44 Of the thirty-four identified Michigan statutes that employ the term
"gross negligence," only MICH. COMP. LAWS § 3.996 (107) (1990)
inserts its own definition. Pavlov v. Community Emergency Medical
Serv., Inc., 195 Mich. App. 711, 722 n.6, 491 N.W.2d 874, 880 n.6
(1992).
n45 Jeffrey D. Hickman, Note, It's Time to Call 911 for Governmental
Immunity, 43 CASE W. RES. L. REV. 1067 (1993) (arguing that failure to
rescue a person in danger is a deprivation of life or liberty, thereby
violating the fourteenth amendment).
n51 Id. at 196-97. "If the Due Process Clause does not require the State
to provide its citizens with particular services, it follows that the State
cannot be held liable under the Clause for injuries that could have
been averted had it chosen to provide them." Id.
n53 Id. (citing Daniels v. Williams, 474 U.S. 327, 335 (1986)).
n55 Id.
n59 Id.
n60 See, e.g., Pavlov, 195 Mich. App. at 719, 491 N.W.2d at 878.
n62 Burnett, 414 Mich. at 454, 326 N.W.2d at 811. The case was
instituted under the Recreational Use Act, MICH. COMP. LAWS §
300.201 (1994), which authorized recovery only if gross negligence or
wilful and wanton misconduct was shown. Id. In Burnett, the decedent,
a non-swimmer, drowned after walking off the edge of a submerged
structure that the defendant failed to destroy at the time it created
Lake Adrian. Id. at 458, 326 N.W.2d at 813 (Moody, J., concurring). The
plaintiff claimed that an undertow was created around the submerged
structure which sucked the decedent in when he fell into the water. Id.
n63 Id. at 454, 326 N.W.2d at 811. To accomplish that task, the court
held that it would have to disown much of the previous case law and to
establish a simple and easily understood test defining both gross
negligence and wilful and wanton misconduct. Id.
n64 Id. The court held that the more appropriate occasion for a
redefinition to occur would be upon a factual record adequate enough
to enable those who read the pronouncement to better understand it.
Id. at 454-55, 326 N.W.2d at 811.
n66 Burnett, 414 Mich. at 455-56, 326 N.W.2d at 812. The requisite
indifference to harm that is the equivalent to a willingness that it occur
was found in the notion that in the circumstances of a given case the
injury is probable, even if the injury was not intentional. This is the
difference between wilful and wanton misconduct and ordinary
negligence. Id.
n67 189 Mich. App. 367, 473 N.W.2d 699 (1991). In Abraham, the
defendants, who were emergency medical technicians, transported the
plaintiff's decedent, who was in respiratory distress, from her home to
the hospital. Abraham, 189 Mich. App. at 369, 473 N.W.2d at 700. On
the way there, the decedent went into full cardiac arrest in the
ambulance and died eight days later. Id.
n68 MICH. COMP. LAWS ANN. § 333.20965 (West 1993). The statute
states in pertinent part:
(1) Unless an act or omission is the result of gross negligence or willful
misconduct, the acts or omissions of a medical first responder,
emergency medical technician, emergency medical technician
specialist, paramedic, or medical director of a medical control authority
or his or her designee while providing services to a patient outside a
hospital, or in a hospital before transferring patient care to hospital
personnel, that are consistent with the individual's licensor or
additional training required by the local medical control authority do
not impose liability in the treatment of a patient. . . .
Id.
n70 Abraham, 189 Mich. App. at 369, 473 N.W.2d at 701 (citing Ross v.
Consumers Power Co., 420 Mich. 567, 363 N.W.2d 641 (1984)).
n71 Id. at 370, 473 N.W.2d at 701 (citing Ross, 420 Mich. at 633-34,
363 N.W.2d at 641). The Michigan Supreme Court has applied this test
to claims of liability for gross negligence, as well as ordinary
negligence. Id.
n74 Malcolm, 437 Mich. at 135, 468 N.W.2d at 480. The Governmental
Tort Liability Act is codified at MICH. COMP. LAWS ANN. § 691.1407
(West 1993). The GTLA states that "all government agencies shall be
immune from tort liability in all cases wherein the government agency
is engaged in the exercise or discharge of a governmental function."
MICH. COMP. LAWS ANN. § 691.1407(2). In its discussion of this statute
the court in Malcolm acknowledged the fact that in 1986, the GTLA was
amended to include officers, employees and volunteers of
governmental agencies within its provisions. This replaced the
common-law coverage adopted in Ross. Malcolm, 437 Mich at 140 n.8,
468 N.W.2d at 483 n.8. As stated in Malcolm, according to the
amended statute:
[A] governmental official is immune from liability when: a) the official
acts or reasonably believes to act within the scope of authority; b) the
governmental agency is engaged in the exercise or discharge of a
governmental function; and c) the employee's conduct did not amount
to gross negligence that proximately caused the injury or damage.
Id. (citing MICH. COMP. LAWS ANN. § 691.1407).
n75 Id. at 142, 468 N.W.2d at 484. The city argued that it was entitled
to judgment as a matter of law, since any finding of liability under the
EMSA could only be vicarious in nature, and that since the individual
defendants were not found to be negligent, no vicarious liability should
be imposed. Id.
n76 Id. at 148, 468 N.W.2d at 480. See supra note 68 for the language
of the statute. Since the vicarious liability arose only upon gross
negligence or wilful misconduct of an employee, any direct liability
against the city was foreclosed. Malcolm, 437 Mich. at 148, 468 N.W.2d
at 480. By definition, emergency medical services personnel would be
one of the following: a medical first responder; an emergency medical
technician; an emergency medical technician specialist; a paramedic;
or an emergency medical services instructor-coordinator. MICH. COMP.
LAWS ANN. § 333.20904 (West 1992).
n78 195 Mich. App. 711, 491 N.W.2d 874 (1992). In Pavlov, the plaintiff
and her husband were visiting friends when Mr. Pavlov, who had been
drinking and swimming, began to experience shortness of breath.
Pavlov, 195 Mich. App. at 712-13, 491 N.W.2d at 875. The emergency
medical services ("EMS") unit administered oxygen to Mr. Pavlov. Id. at
713, 491 N.W.2d at 876. An electrocardiogram was performed and the
results were normal. Id. Mr. Pavlov said that his family would take him
to the doctor the next day and he signed a release form. Id. Shortly
after leaving Mr. Pavlov collapsed in full cardiac arrest and was later
declared dead at a local hospital. Id.
n80 Pavlov, 195 Mich. App. at 714, 491 N.W.2d at 876 (quoting MICH.
COMP. LAWS § 333.20737 (repealed 1990));
When performing service consistent with the individual's training, acts
or omissions of an . . . emergency medical technician, emergency
medical technician specialist, or advanced emergency medical
technician, do not impose liability on those individuals in the treatment
of a patient when the service is performed outside a hospital. . . . All
persons named in this section . . . are protected from liability unless
the act or omission was the result of gross negligence or wilful
misconduct.
Id.
n81 Id. at 718, 491 N.W.2d at 878. The court held that the body of the
statute gave the definition of "emergency" as a "condition or situation
in which an individual declares a need for immediate medical attention
for any individual, or where the need is declared by emergency
medical personnel or a public safety official." Id. at 714, 491 N.W.2d at
876 (citing MICH. COMP. LAWS § 333.20703(1) (1993)).
n85 Id.
n88 PROSSER, supra note 11, at 212. They have been grouped
together as an aggravated type of negligence that is different in
quality rather than degree from the departure from ordinary lack of
care. Id.
n89 Id. at 213. This is also usually followed by the assumption that
there must be a conscious indifference to the consequences. Id.
n90 Id.
n98 Williamson, 354 P.2d at 59. The most the court was hoping for was
a clear statement of the factors or elements which would characterize
such conduct. Id.
n99 MICH. COMP. LAWS ANN. § 256.29 (West 1948). This version of the
Michigan guest passenger statute stated that the conduct of an
automobile driver would be culpable if he "would know, or should
know" that his actions would put others in peril. Williamson, 354 P.2d at
60.
n100 Id. The court also stated that "'gross negligence does not mean
great, bad, or much negligence,' but means wilfulness, wantonness or
recklessness." Id. (quoting Finkler v. Zimmer, 258 Mich. 336, 338, 241
N.W. 851, 852 (1932)).
n102 420 F. Supp. 300 (N.D. Cal. 1976), aff'd, 594 F.2d 1230 (9th Cir.),
cert. denied, 444 U.S. 866 (1979). This action was brought to recover
damages for injuries the plaintiff suffered from falling down a vertical
shaft inside an abandoned mine on United States land. Gard, 420 F.
Supp. at 301.
n104 Id.
n105 Byrd, III, supra note 9, at 1396.
n107 Id. at 319, 196 N.W. at 401. The court defined gross negligence
as where "the defendant, who knows, or ought, by the exercise of
ordinary care, to know, of the precedent negligence of the plaintiff, by
his subsequent negligence does plaintiff an injury." Id.
n108 Id. at 320, 196 N.W. at 401. Confusingly, the court, one
paragraph down, states that "although what is really reckless and
wanton misconduct is sometimes spoken of as gross negligence, the
expression is everywhere recognized as inaccurate and unfortunate . . .
." Id. at 321, 196 N.W. at 401 (quoting Atchinson, 98 P. at 807).
n110 Id.
n113 154 Mich. App. 752, 398 N.W.2d 520 (1986) (appeal from the trial
court's grant of directed verdict to a pediatrician who came to a
different hospital than he normally worked to assist with a newborn
who was having difficulties).
n116 Higgins, 154 Mich. App. at 761, 398 N.W2d at 524. The court
conceded that, at most, the plaintiff's proofs suggested that the doctor
was guilty of ordinary negligence in misreading the plaintiff's x-rays
and in performing a lumbar puncture. Id.
n121 Id. at 125, 449 N.W.2d at 117. The court noted that the plaintiff's
complaint was essentially one of negligence. Id. The court of appeals
held that if it found the plaintiff's allegations sufficient to void the
immunity provision, it would, in effect, be holding that the last
sentence of the statute was meaningless, thereby subverting the intent
of the legislature. Id.
n122 Id. The Mallory court found that the evidence offered to establish
that the defendants intended to harm or were indifferent about
potential harm did not rise to the level of willingness to harm. Id. at
125, 449 N.W.2d at 117-18.
n123 Id. (citing Burnett v. City of Adrian, 414 Mich. 448, 326 N.W.2d
810 (1982)). The court also defined "gross negligence" as that which
occurs where a plaintiff's prior negligence puts him in a position of
danger and the defendant's subsequent negligence causes the
plaintiff's injury. Id. at 125-26, 449 N.W.2d at 118 (citing Thomason v.
Olive Branch Masonic Temple, 156 Mich. App. 736, 401 N.W.2d 911
(1986)).
n124 Id.
n129 Pavlov, 195 Mich. App. at 717, 491 N.W.2d at 877. The former
allows liability when the defendant is so careless as to intend harm,
and the latter requires actual intent to be present. Id.
n131 See, e.g., MICH. COMP. LAWS § 300.201. The Recreational Users
Statute includes the phrase "willful and wanton." Id.
n135 Jennings, 446 Mich. at 142, 147, 521 N.W.2d at 238, 240.
n139 Id.
n140 Id. The fire department then called Community EMS. Id.
n145 Id.
n147 Id.
n148 Id. at 144, 521 N.W.2d at 239. The defendants responded to this
argument by stating that the plaintiff's expert did not make any
allegations as to the level of negligence for the improper placement of
the tube. Appellant's Brief at 6, Boroditsch (No. 134371).
n149 Jennings v. Southwood, 198 Mich. App. 713, 499 N.W.2d 460
(1993), vacated, 446 Mich. 125, 521 N.W.2d 230 (1994).
n153 Id. at 3. Mrs. Jennings was asked whether the paramedics should
take Cindy to the hospital. She told them no, the problem was between
her and her child and they would work it out on their own. Appellant's
Brief at 2, Jennings (No. 119614). Mrs. Jennings and Cindy's sister deny
that this conversation ever took place. Id.
n156 225 Mich. 311, 196 N.W. 398 (1923), overruled by Jennings v.
Southwood, 446 Mich. 125, 521 N.W.2d 230 (1994).
n157 Appellant's Brief at 7, Boroditsch (No. 134371).
n158 Id. Judge Templin also specifically held that based on the
assertions of the plaintiff's expert, the only supportable claim would be
for ordinary negligence. Id.
n159 Jennings, 446 Mich. at 145, 521 N.W.2d at 239. The Boroditsch
opinion, written by the Michigan Court of Appeals, was not published.
n160 Id. at 147, 521 N.W.2d at 240. During the jury trial, the trial court
instructed the jury about gross negligence using the GTLA definition
and gave examples in the context of criminal law. Id.
n162 Id.
n163 Jennings, 446 Mich. at 148, 521 N.W.2d at 240. The plaintiff failed
to plead and prove precedent negligence on the part of the victim, and
therefore failed to demonstrate gross negligence as defined in Gibbard,
which rendered the defendants immune under the EMSA. Id. The court
of appeals also held that the trial court was wrong in using criminal
examples of gross negligence, but held that these errors were
harmless in light of the plaintiff's failure to correctly plead and prove
gross negligence. Id.
n164 Id. at 128, 521 N.W.2d at 232. The Emergency Medical Services
Act is codified at MICH. COMP. LAWS ANN. § 333.20901 (West 1992).
The EMSA, in effect at the time of the alleged wrongs, controls the
disposition of these cases. Jennings, 446 Mich. at 128 n.1, 521 N.W.2d
at 232 n.1. The statute was changed slightly in 1990; however, both
versions include liability for acts or omissions constituting gross
negligence or wilful misconduct. Id.
n167 Jennings, 446 Mich. at 129, 521 N.W.2d at 231-32. At the time the
court decided Gibbard, Michigan followed the rule of contributory
negligence. Id. "It is to avoid this rule and to excuse contributory
negligence of a plaintiff that the doctrine of gross negligence is usually
invoked." Id. (citing Gibbard, 225 Mich. at 319, 196 N.W. at 401). The
Gibbard court noted that such gross negligence is also called
"discovered negligence, subsequent negligence, wanton or wilful or
reckless negligence, discovered peril, last clear chance doctrine, and
the humanitarian rule." Id. (citing Gibbard, 225 Mich. at 319-20, 196
N.W. at 398).
n168 Id. The Jennings court noted that the Gibbard definition had
continued to hold a place in Michigan law despite the Michigan
Supreme Court's rejection of the practices compelling its creation. Id.
n171 Id. See generally Kirby v. Larson, 400 Mich. 585, 256 N.W.2d 400
(1977). Under pure comparative negligence, a plaintiff's negligence
reduces the amount of the plaintiff's recovery, allocating liability in
proportion to fault.
n173 Jennings, 446 Mich. at 132, 521 N.W.2d at 233. In 1932, Michigan
proposed that if all negligence terms were called the last clear chance
doctrine, "many difficulties of the student, of the practitioner, and of
the judge, would be removed ultimately." Id. at 132 n.4, 521 N.W.2d at
233 n.4 (quoting Finkler, 258 Mich. at 340, 241 N.W. 851).
n174 Id. at 132, 521 N.W.2d at 233. The court did not take such action
lightly, but could not continue to "inflict on our citizenry a doctrine that
makes little sense in today's jurisprudence." Id.
n175 Id.
n176 Id. at 133, 521 N.W.2d at 234. The court emphasized that when
interpreting a statutory provision, it should seek to effectuate the
legislature's intent and avoid interpretations that lead to absurd
results. Id. The court summarized the intent of the EMSA as twofold.
First, the EMSA is to provide for uniform regulation of emergency
medical service. Id. Second, it is intended to limit emergency
personnel's exposure to liability. Id. (citing Malcolm v. City of East
Detroit, 437 Mich. 132, 142, 468 N.W.2d 479, 484 (1991)).
n177 Id. (citing Finkler, 258 Mich. at 336, 241 N.W.2d at 851).
n178 Id. The legislature expressed its dissatisfaction with the lack of
statutory immunity for the ordinary negligence of emergency
personnel in the preamble to the EMSA: "An act to protect and promote
the public health; to codify, revise, consolidate, classify, and add to the
laws relating to public health; . . . to regulate occupations, facilities,
and agencies affecting the public health; . . . to provide certain
immunity from liability . . . ." Id. at 134 n.6, 521 N.W.2d at 234 n.6
(citing 1981 Mich. Pub. Acts 79).
n179 Id. at 134, 521 N.W.2d at 234. The legislature hoped that the
limited immunity proposed in the EMSA would lessen a viable
impediment from joining the profession. Id.
n180 Id. at 135, 521 N.W.2d at 235 (citing City of Lansing v. Lansing
Twp., 356 Mich. 641, 97 N.W.2d 804 (1959)).
n181 Id.
n182 Id.
n183 Id.
n184 Id. at 136, 521 N.W.2d at 235. Section 7 of the GTLA immunizes
governmental employees and volunteers from tort liability for acts
causing injury during the course of government service as long as the
conduct did not amount to gross negligence. Id. "Gross negligence" is
defined as conduct so reckless as to demonstrate a substantial lack of
concern for whether an injury resulted. Id.
n185 Id.
n186 Id.
n188 Id.
n189 Jennings, 446 Mich. at 137, 521 N.W.2d at 236 (citing Gibbard,
225 Mich. at 322, 196 N.W. at 401). The difference transcends
negligence and becomes one of kind. Id.
n190 414 Mich. 448, 326 N.W.2d 810 (1982). The Jennings court held
that even though Burnett acknowledged the need to clarify the
definition, it retained the standard. Jennings, 446 Mich. at 138, 521
N.W.2d at 236.
n191 Id.
n192 Id. at 138, 521 N.W.2d at 236. The court held that the two
standards were not synonymous because the words "wilful" and
"wanton" had distinct meanings. Id. at 137, 521 N.W.2d at 237.
n193 Id. at 140-41, 521 N.W.2d at 237. The court of appeals recognized
this distinction in Pavlov: "A standard that permits liability for 'wilful
and wanton conduct' is less restrictive than one that confines liability
to 'wilful conduct' alone. The former allows liability when the defendant
is so careless as to, in effect, intend harm, but the latter requires that
intent actually be present." Id. (quoting Pavlov, 195 Mich. App. at 716-
17, 491 N.W.2d at 877).
n195 Id. To construe this in any other way would defy the established
principal of statutory construction which states that statutes are to be
construed to avoid absurd results. Id. at 142 n.13, 521 N.W.2d at 238
n.13.
n198 Id. Once the supreme court rejected the Gibbard definition, the
trial court's ruling could no longer stand. Id. The question then became
whether the plaintiff's complaint alleged gross negligence as defined in
section 7 of the GTLA. Id.
n200 Id.
n201 Id.
n202 Id. The trial court found that the plaintiff not only failed to allege
an intent to harm, she also did not allege the necessary indifference to
whether harm would result so as to be the equivalent that it does
occur. Id.
n203 437 Mich. 132, 468 N.W.2d 479 (1991). The Jennings court noted
that the Malcolm court ruled that the EMSA modified the GTLA.
Jennings, 446 Mich. at 149, 521 N.W.2d at 241. This modification
provided an exception to the broad grant of immunity to governmental
units. Id. Under this exception, the Malcolm court said that vicarious
liability could be imputed to the governmental unit if its agent was
grossly negligent or acted with wilful misconduct. Id. As a result, the
Jennings court affirmed the holding of the court of appeals stating that
dismissal of the defendant municipality on grounds of governmental
immunity was unfounded. Id.
n204 Id. The defendants argued that the 1990 amendment to the
EMSA, stating that subdivision (1) does not limit immunity from liability
otherwise provided by law for any of the persons listed in (1) should be
given retroactive application. Id. The Jennings court rejected that
argument and stated that the amendments were not remedial in
nature. Id.
n207 Gibbard v. Cursan, 225 Mich. 311, 196 N.W. 398 (1923).
n209 Id. at 136, 521 N.W.2d at 235 (citing MICH. COMP. LAWS ANN. §
691.140 (7) (West 1987)).
n210 Burnett v. City of Adrian, 414 Mich 448, 326 N.W.2d 810 (1982).
The Burnett court voiced the need to change the existing standard for
gross negligence but held that it had no choice other than to wait for a
more appropriate fact pattern to present itself. Burnett, 414 Mich. at
444-45, 326 N.W.2d at 811.
n212 Id. at 130, 521 N.W.2d at 233 (citing Gibbard, 225 Mich. at 311,
196 N.W. at 398).
n215 Gibbard, 225 Mich. at 321, 196 N.W. at 401. This three part test
has been part of the substantive law of Michigan since its inception.
The three prongs of this test are: (1) Knowledge of a situation that
requires ordinary care and diligence to avoid injury; (2) The ability to
avoid the harm with ordinary care; and (3) The failure to use ordinary
care, when the resulting harm would be obvious to an objective person.
Id.
n216 See supra note 32.
n217 See, e.g., Kirby v. Larson, 400 Mich. 585, 256 N.W.2d 400 (1977);
Burnett v. City of Adrian, 414 Mich. 448, 326 N.W.2d 810 (1982);
Abraham v. Jackson, 189 Mich. App. 367, 473 N.W.2d 699 (1991);
Pavlov v. Community Emergency Medical Serv., Inc., 195 Mich. App.
711, 491 N.W.2d 874 (1992); Higgins v. Detroit Osteopathic Hosp.
Corp., 154 Mich. App. 752, 398 N.W.2d 520 (1986).
n219 Pavlov, 195 Mich. App. at 723, 491 N.W.2d at 880 (Kelly, J.,
concurring).
n221 Id.
n222 Id.
n223 Id.
n224 Id.
n227 MICH. COMP. LAWS ANN. § 333.20965 (West 1990). The statute
states in pertinent part:
(1) Unless an act or omission is the result of gross negligence or willful
misconduct, the acts or omissions of a medical first responder,
emergency medical technician, emergency medical technician
specialist, paramedic, or medical director of a medical control authority
or his or her designee while providing services to a patient outside a
hospital, or in a hospital before transferring patient care to hospital
personnel, that are consistent with the individual's licensure or
additional training required by the local medical control authority do
not impose liability in the treatment of a patient . . . .
Id.
n229 Burnett, 414 Mich. at 448, 326 N.W.2d at 810. The Michigan
Supreme Court held that no actionable claim for gross negligence was
made out in the plaintiffs' pleadings because there was no allegation of
the defendant's subsequent negligence. Id. at 453, 326 N.W.2d at 811
(citing Gibbard, 225 Mich. at 311, 196 N.W. at 398). The court also held
that the plaintiffs made out a valid case for wilful and wanton
misconduct under Gibbard. Id.
n230 Byrd, III, supra note 9, at 1396. The use of tests to identify
"reckless behavior" masks the court's analysis in the same way as
"proximate cause" language has. Id.
n231 Id.
n232 Id. Even if the actor knew how unreasonable the conduct was, the
court still needs to examine the degree of risk to ascertain if the
conduct is culpable enough to be called "gross." Id.
n233 Id. at 1398. There are few cases where an actor who is not
"conscious," but is doing something highly unreasonable, avoids
liability under a "recklessness" theory because he does not display a
"reckless" state of mind. Id. at 1399.
n234 Id. at 1400. The problems which face courts that are attempting
to apply a gross negligence statute are eased when the legislature
indicates that ordinary negligence is not sufficient under a particular
statute, but that some form of aggravated misconduct is required,
regardless of the word assigned to it. Id.
n237 Burnett, 414 Mich. at 455, 326 N.W.2d at 812. In other words,
according to Gibbard, "wilful misconduct" is not a high degree of
carelessness. Id.
n238 Id.
n241 Id.
n243 MICH. CONST. art. III, § 7 (1963). "The common law and the
statute laws now in force, not repugnant to this constitution, shall
remain in force until they expire by their own limitation, or are
changed, amended or repealed." Id.
n250 Id. at 138, 521 N.W.2d at 236 (citing Burnett, 414 Mich. at 448,
326 N.W.2d at 810).
n251 Id. at 149, 521 N.W.2d at 240-41 (citing Malcolm, 437 Mich. at
132, 468 N.W.2d at 479).
n255 Jennings, 446 Mich. at 133-34, 521 N.W.2d at 234. The Gibbard
gross negligence definition permitted liability on a finding of ordinary
negligence. Id.
n256 Byrd, III, supra note 9, at 1400. The problems which a trial court
and the finder of fact would face in attempting to apply a general
negligence statute are lessened when the courts realize that the
legislature has indicated that ordinary negligence is not sufficient
under a particular statute, but that some form of aggravated
misconduct will be required. Id.
n257 Jennings, 446 Mich. at 136, 521 N.W.2d at 235. The GTLA confers
various degrees of immunity to governments, their agencies, and their
agents. Section 7 immunizes government employees and volunteers
from tort liability for acts causing injury during the course of
government service, so long as the conduct did not amount to gross
negligence. MICH. COMP. LAWS § 691.1407 (1993). The GTLA defines
gross negligence as "conduct so reckless as to demonstrate a
substantial lack of concern for whether an injury results." Id.
n258 Jennings, 446 Mich. at 135, 521 N.W.2d at 235. The court held
that imposition of the Gibbard gross negligence standard failed to
promote participation in the EMS field, and was therefore contrary to
legislative intent. Id.
n259 Id. See, e.g., Burnett, 414 Mich. at 448, 326 N.W.2d at 810;
Malcolm, 437 Mich. at 132, 468 N.W.2d at 479.
n260 Burnett, 414 Mich. at 456, 326 N.W.2d at 812. The majority held
that it did not find the language of the three-prong test of Gibbard a
satisfactory standard to be used for identifying wilful and wanton
misconduct. Id. The Burnett court held that they did not find it a true
synopsis of the test as it was created, but held that it would wait until a
fully developed factual record arose to address the issue. Id.
n262 Id.
n263 Id.
n266 Id. The Michigan Court of Appeals held that Ms. Szpara could not
initially complain about her phone service because she had impliedly
agreed to it through her governmental representative. Id. As such, she
could not assert that Michigan Bell Telephone owed her a special duty
to provide more rapid service. Id.
n267 Id.
n268 Id. The Jennings court had adopted the definition of gross
negligence found in the GTLA. Id.
n269 Id. The court held that in applying the new standard (conduct so
reckless as to demonstrate a substantial lack of concern for whether
injury results) to the case at hand, the defendant's actions did not rise
to the level of gross negligence or "wilful and wanton misconduct"
necessary to sustain the action. Id.
n273 225 Mich. 311, 196 N.W.2d 398 (1923), overruled by Jennings,
446 Mich. at 125, 521 N.W.2d at 230.
n274 Jennings, 446 Mich. at 131, 521 N.W.2d at 233 (citing Gibbard,
225 Mich. at 131, 196 N.W. at 233; MICH. COMP. LAWS ANN. §
691.1407).
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