Boulton v. Fenton Twp.

• Decision Date: 17 October 2006
• Docket Number: Docket No. 258094.
• Citation: 726 N.W.2d 733,272 Mich. App. 456
• Parties: Joseph L. BOULTON, Plaintiff-Appellant, v. FENTON TOWNSHIP, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

726 N.W.2d 733

272 Mich. App. 456

Joseph L. BOULTON, Plaintiff-Appellant, v. FENTON TOWNSHIP, Defendant-Appellee.

Docket No. 258094.

Court of Appeals of Michigan.

Submitted May 2, 2006, at Detroit.

Decided October 17, 2006, at 9:15 a.m.

Released for Publication January 17, 2007.

The Batey Law Firm, P.L.L.C. (by Scott P. Batey), Bingham Farms, for the plaintiff.

Law Offices of Bailey & Rossi, P.C. (by Gary A. Rossi and William L. Parker), Bloomfield Hills, for the defendant.

Before: JANSEN, P.J., and NEFF and ZAHRA, JJ.

PER CURIAM.

Plaintiff appeals as of right the trial court's order granting summary disposition. In this case, a sheriff's deputy was injured when he was struck by a government-owned vehicle as it arrived at the scene of a one-car accident. The primary issue is whether MCL 600.2966, the codified firefighters' rule, bars recovery when an injury occurs in the normal, inherent, and foreseeable performance of a police officer's duties and is caused by the negligent operation of a government vehicle. We hold that it does.

I. Basic Facts and Procedure

Plaintiff is a Genesee County sheriff's deputy who was struck by a Fenton Township fire truck. In November 2002, plaintiff was called to the scene of a one-car accident at which he parked his vehicle on the right shoulder of the road and began attending to the victims. Plaintiff was struck by the fire truck as he was waiting by the open rear door on the driver's side of his vehicle while helping the victim and her friend get into the back seat. The fire truck was driven by an employee of the Fenton Township Fire Department. Plaintiff was seriously injured as a result of the negligent operation of the fire truck.

In April 2004, the parties moved for summary disposition, with plaintiff arguing that defendant was liable under the motor vehicle exception to governmental immunity, MCL 691.1405, and that there was no genuine issue of material fact regarding defendant's negligence. The trial court denied both parties' motions and set a trial date of June 22, 2004. On June 18, 2004, defendant filed its trial brief and argued, among other things, that it was protected by MCL 600.2966, which provides immunity to governmental defendants from tort claims by police officers and firefighters if the claim arises out of the "normal, inherent, and foreseeable risk" of a plaintiff's profession. In lieu of trial, the trial court issued a ruling granting, sua sponte, summary disposition for defendant.

II. Analysis

On appeal, plaintiff argues that the trial court erred in interpreting the relevant statutes and applying them in this case; that it abused its discretion by granting summary disposition without a proper motion before the court; and that MCL 600.2966 violates the Title-Object Clause of the Michigan Constitution and the equal protection clauses of both the state and federal constitutions. We disagree.

A. Firefighter's Rule Bars Recovery In Claims Arising Out of Government Negligence

A trial court's grant of summary disposition is reviewed de novo. Glass v. Goeckel, 473 Mich. 667, 676, 703 N.W.2d 58 (2005). Issues involving statutory interpretation are also subject to review de novo. Wayne Co. v. Hathcock, 471 Mich. 445, 455, 684 N.W.2d 765 (2004). Whether certain qualitative facts support a legal conclusion and the viability of the conclusion itself present a mixed question of law and fact. Davidson v. Baker-Vander Veen Constr. Co., 35 Mich.App. 293, 305, 192 N.W.2d 312 (1971).

In this case, liability arises, if at all, from the governmental tort liability act (GTLA), MCL 691.1401 et seq. That statute proscribes government liability for negligence with some exceptions. One of the exceptions is popularly known as the "motor vehicle" exception, MCL 691.1405, which reads: "Governmental agencies shall be liable for bodily injury and property damage resulting from the negligent operation by any officer, agent, or employee of the governmental agency, of a motor vehicle of which the governmental agency is owner. . . ."

Fenton Township would normally be liable for damage or injury arising from the negligent operation of its fire truck, as allegedly happened here; however, plaintiff is a police officer whose injury occurred in the "normal, inherent, and foreseeable" course of performing his job, so he is precluded from pursuing a claim because of the codified "firefighters' rule."

The common-law firefighters' rule was first adopted in Michigan in Kreski v. Modern Wholesale Electric Supply Co., 429 Mich. 347, 415 N.W.2d 178 (1987). The rule generally stated that "a fire fighter or police officer may not recover damages from a private party for negligence in the creation of the reason for the safety officer's presence." Id. at 358, 415 N.W.2d 178 (emphasis added).

The Legislature codified the rule by enacting 1998 PA 389, MCL 600.2965 to 600.2967, effective November 30, 1998. MCL 600.2965 abrogates the common-law rule. MCL 600.2967 provides in pertinent part:

(1) Except as provided in section 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. . . . [Emphasis added.]

The remainder of the provision prescribes the circumstances under which a firefighter or police officer may recover. As indicated in the emphasized language at the beginning of MCL 600.2967(1), recovery is then limited by MCL 600.2966, which states:

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.]

Defendant, as a government agency, and plaintiff, as a police officer, both fall within the limiting language of § 2966. We also note that the limiting provision bars recovery against government agencies for injuries arising from all torts, not just negligence.¹ Thus limited, the only inquiry is whether plaintiff's injury arose from a normal, inherent, and foreseeable risk of his profession.

We conclude that being struck by a motor vehicle while at the scene of an accident is a normal, inherent, and foreseeable risk of the police officer's profession; however, because defendant here is a government agency, and not a private citizen, plaintiff is barred from recovery under a plain reading of § 2966.

B. Summary Disposition Without Motion

Because we conclude that the injury plaintiff suffered arose out of a normal, inherent, and foreseeable risk of his occupation as a police officer, and that recovery against defendant is barred by § 2966, we hold that the trial court's grant, sua sponte, of summary disposition was proper.

Plaintiff argues on appeal that the trial court did not have the authority to grant defendant summary disposition because there was no summary disposition motion before the trial court. MCR 2.116(I)(1) provides: "If the pleadings show that a party is entitled to judgment as a matter of law, or if the affidavits or other proofs show that there is no genuine issue of material fact, the court shall render judgment without delay." When interpreting a court rule, we apply the same principles that govern statutory interpretation. In re KH, 469 Mich. 621, 628, 677 N.W.2d 800 (2004). The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Neal v. Wilkes, 470 Mich. 661, 665, 685 N.W.2d 648 (2004). The first criterion in determining intent is the language itself. Halloran v. Bhan, 470 Mich. 572, 577, 683 N.W.2d 129 (2004). Nothing will be read into a clear statute that is not within the manifest intention of the Legislature as derived from the language of the statute itself. Omne Financial, Inc. v. Shacks, Inc., 460 Mich. 305, 311, 596 N.W.2d 591 (1999).

The rule in question is one of summary disposition; its various subparts allow for disposition at any time, including to a nonmoving party, if the court determines that sufficient facts exist to render judgment. The rule does not expressly require a motion under MCR 2.116(C)² in order to grant summary disposition; nor does the rule in question expressly forbid summary disposition absent a motion under MCR 2.116(C). Indeed, the rule mandates that if one of two conditions is met, then the court "shall render judgment without delay." These conditions are: the "pleadings show that a party is entitled to judgment as a matter of law" and "the affidavits or other proofs show that there is no genuine issue of material fact."

In Hover v. Chrysler Corp., 209 Mich. App. 314, 317, 530 N.W.2d 96 (1995), we determined that the court's sua sponte grant of summary disposition based on the statute of limitations was proper under MCR 2.116(I). In this case, defendant was owed "judgment without delay" once the court determined that the firefighters' rule barred plaintiff's recovery, even when the harm was caused by the negligent operation of a government vehicle.

Plaintiff also argues that the trial court erred in granting defendant summary disposition without providing him an adequate opportunity to brief the issue and present his position to the trial court, relying on Boje v. Wayne Co. Gen. Hosp., 157 Mich.App. 700, 403 N.W.2d 203 (1987). We determine this specific argument to be moot and we will not address it because we conclude that error, if any, was harmless under MCR 2.613(A).³ In any event, after the trial court granted defendant summary disposition, plaintiff filed a motion for reconsideration in which he fully briefed and presented his arguments...