Alex v. Wildfong
| Decision Date | 09 June 1999 |
| Docket Number | Docket Nos. 112041,112043 |
| Citation | 460 Mich. 10,594 N.W.2d 469 |
| Parties | Margaret Ellen ALEX, Personal Representative of the Estate of Jamie Andrew Youngo, deceased, Plaintiff-Appellee, v. Richard Charles WILDFONG, Jr., Defendant-Appellant, and Fruitport Township Fire Department and Fruitport Township, Defendants. Margaret Ellen Alex, Personal Representative of the Estate of Jamie Andrew Youngo, deceased, Plaintiff-Appellee, v. Richard Charles Wildfong, Jr., Defendant, and Fruitport Township Fire Department and Fruitport Township, Defendants-Appellants. |
| Court | Michigan Supreme Court |
Robert J. Riley, Grand Rapids, for plaintiff-appellee.
Cunningham, Dalman, P.C. (by Kenneth B. Breese ), Holland; John A. Lydick, of counsel, Detroit, for defendant-appellant Wildfong.
Timmer, Jamo & O'Leary (by James S. O'Leary and Kathleen A. Lopilato ), Lansing, for defendants Fruitport Township Fire Department and Fruitport Township.
On the way to a house fire, a volunteer firefighter driving his own vehicle collided with a car driven by the plaintiff's decedent. The ensuing litigation presents an issue regarding which of two statutes should be used to gauge the defendants' potential liability. The circuit court entered judgment for the defendants, but the Court of Appeals reversed. We reinstate the judgment of the circuit court.
Richard C. Wildfong, Jr., was a volunteer firefighter for the Fruitport Township Fire Department in Muskegon County. 1 He traveled to fires and other emergencies in his own pickup truck, on which he had installed red and white oscillating roof lights and a siren.
Late on a January evening in 1993, Mr. Wildfong was awakened from sleep by his pager, which notified him of a reported chimney fire. He dressed and left his home, driving his pickup. 2
As he began traveling toward the fire, Mr. Wildfong was not using the pickup's red lights or siren. He testified that he was not sure whether to go directly to the fire, or go to the fire station and drive a pumper truck to the scene.
As Mr. Wildfong was making up his mind, he received a second page, indicating that the apparent chimney fire was, instead, an electrical fire in the upstairs of a structure. Hearing that report, Mr. Wildfong activated his overhead lights by plugging a cord into the receptacle for the cigarette lighter. He says he knows the overhead lights were on because he could see the red reflection against a white house that he passed as he turned them on.
The plaintiff believes that the overhead lights either were never activated or were turned on only an instant before the collision described below.
As Mr. Wildfong was driving east on Heights Ravenna Road, he approached an establishment called "Punches." A white car safely pulled out in front of him. It was followed by a second car, with which Mr. Wildfong's truck collided. The driver and one passenger were killed. Three other passengers were injured.
The plaintiff is the personal representative of the estate of the deceased driver, Jamie A. Youngo. In November 1993, she sued Mr. Wildfong, Fruitport Township, and the Fruitport Township Fire Department. Four other suits were filed by the passengers or their representatives.
The Muskegon Circuit Court consolidated the five cases for a trial on liability, reserving the question of damages.
Seeking a preliminary ruling, Fruitport Township and its fire department argued in circuit court that they were immune under M.C.L. § 691.1407(1); MSA 3.996(107)(1), 3 and that vicarious liability for Mr. Wildfong's actions could exist only if he had been grossly negligent, M.C.L. § 691.1407(2)(c); MSA 3.996(107)(2)(c). 4 Fruitport acknowledged that a governmental agency can be found liable for ordinary negligence in the operation of a government-owned motor vehicle, M.C.L. § 691.1405; MSA 3.996(105), but noted that Mr. Wildfong was driving his own vehicle. The circuit court agreed that "[g]ross negligence would bind the Township," saying that "[t]he other claims would be dismissed."
The October 1994 jury trial on liability concluded three days later, when the jury returned a verdict in which it found that both Mr. Wildfong and Mr. Youngo were negligent. However, the jury found that Mr. Wildfong was not grossly negligent.
A few days after the jury returned its verdict, the defendants (Mr. Wildfong, the township, and the fire department) filed a motion for summary disposition, seeking to employ the jury's finding of no gross negligence to establish that all the defendants were immune, and that a final judgment in their favor could therefore be entered.
Approximately three weeks after that, the plaintiff filed motions for summary disposition, for new trial, and to reopen the proofs. The latter motions were based on the affidavit of a woman who had come forward after trial, disclosing for the first time that she had witnessed the accident. After two hearings and a deposition, the circuit court granted a new trial, again limited to issues of liability.
The defendants later renewed their motion for summary disposition, but it was denied by the circuit court
The case was retried in February 1996. This time, a different verdict form was used, so that gross negligence was the first question for the jurors to answer. Again, they found no gross negligence on the part of Mr. Wildfong. In accordance with the court's directions, the jury then stopped without answering the remaining questions regarding ordinary negligence, proximate cause, or allocation of fault. The circuit court entered judgment in favor of the defendants.
The plaintiff appealed, and persuaded the Court of Appeals to reverse. 5 A majority of the panel found the case to be controlled by Haberl v. Rose, 225 Mich.App. 254, 570 N.W.2d 664 (1997), which is discussed below. Judge MACKENZIE dissented.
Mr. Wildfong has applied to this Court for leave to appeal. A separate application has also been filed by Fruitport Township and its fire department.
In Haberl v. Rose, a school employee was driving her own car in connection with her work. She negligently collided with another vehicle, causing serious injury.
At the time of the accident, Ms. Rose was acting within the scope of her employment, her employer was engaged in a government function, and she was not grossly negligent. She thus appeared to be immune under M.C.L. § 691.1407(2); MSA 3.996(107)(2). 6
However, the plaintiffs in Haberl asserted that her ordinary negligence allowed the imposition of liability under the owner's civil liability section of the Motor Vehicle Code. M.C.L. § 257.401(1); MSA 9.2101(1). That provision states that the owner of a vehicle is liable for injury caused by ordinary negligence in the operation of the vehicle. 7
Thus the issue in Haberl, as in the present case, was whether the potential liability of the governmental employee should be evaluated in light of the immunity language of M.C.L. § 691.1407; MSA 3.996(107) or of the owner's civil liability statute, M.C.L. § 257.401(1); MSA 9.2101(1). 8
As one can gather from the material outlined above, the issue arises because of what might appear to be an anomaly: A person injured by a private citizen driving a privately owned vehicle generally can seek damages from the driver under an ordinary negligence standard, 9 and can cite the same standard when seeking damages from the owner under the owner's civil liability statute. And, while a person injured by a government employee driving a government-owned vehicle must show gross negligence to obtain damages from the driver, 10 the person can seek damages from the owner of the vehicle under the ordinary negligence standard. 11 However, a person injured by a government employee driving his own privately owned vehicle cannot employ the ordinary negligence standard against the driver or the owner, since the driver/owner is the same person and (as a government employee) is subject to the gross negligence standard. Faced with this situation, the plaintiffs in Haberl and the present case argue that the driver/owner ought to be able to invoke the higher protection of the gross negligence standard only as driver (the role in which he is a government employee), not as owner of the private vehicle. 12
Accepting that argument, the Haberl majority first noted that the broad sweep of governmental immunity is limited by M.C.L. § 691.1405; MSA 3.996(105), which applies an ordinary negligence standard in situations in which harm is caused by the negligent operation of a government-owned motor vehicle. The majority in Haberl said that "[t]his major exception to governmental immunity is consistent with the policy evident in the civil liability act, which imposes liability on the owners of privately owned vehicles." 225 Mich.App. at 259, 570 N.W.2d 664.
The majority then turned to the rules of statutory construction, saying that the owner's civil liability statute was the more specific measure. 225 Mich.App. at 262, 570 N.W.2d 664. The majority observed that application of its provisions would avoid the anomalous possibility that ordinary negligence would be the standard for liability in accidents involving all governmental and nongovernmental vehicles, except private vehicles driven on government business. 225 Mich.App. at 263-264, 570 N.W.2d 664.
On those bases, the majority in Haberl vacated the circuit court's judgment in favor of the defendant and remanded the case for entry of a judgment on the jury's verdict of $260,000 in favor of the plaintiffs.
225 Mich.App. at 268, 570 N.W.2d 664. He observed that the owner's civil liability statute has been part of Michigan law in some form since 1909, and he likewise outlined the nature and history of the statutory provisions regarding governmental immunity.
Explaining the context in which recent immunity...
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