Jennings v. Southwood, Docket Nos. 96277

CourtSupreme Court of Michigan
Writing for the CourtCAVANAGH
Citation521 N.W.2d 230,446 Mich. 125
PartiesDean S. JENNINGS, as conservator of the estate of Cynthia K. Rasmussen, Plaintiff-Appellant, Cross-Appellee, v. Richard J. SOUTHWOOD, Bill Boyd, Jr., and Dan Daniels, individually, and Lake Township, a Michigan municipal corporation, and Lake Township Ambulance & Rescue, Defendants-Appellees, Cross-Appellants. Valentina E. BORODITSCH, as personal representative of the estate of Fedor Boroditsch, Deceased, Plaintiff-Appellant, v. COMMUNITY EMERGENCY MEDICAL SERVICE, INC., a Michigan corporation, Defendant-Appellee. Calendararch Term 1994.
Decision Date02 August 1994
Docket NumberNos. 6-7,M,Docket Nos. 96277,96330

Page 230

521 N.W.2d 230
446 Mich. 125
Dean S. JENNINGS, as conservator of the estate of Cynthia K.
Rasmussen, Plaintiff-Appellant, Cross-Appellee,
v.
Richard J. SOUTHWOOD, Bill Boyd, Jr., and Dan Daniels,
individually, and Lake Township, a Michigan municipal
corporation, and Lake Township Ambulance & Rescue,
Defendants-Appellees, Cross-Appellants.
Valentina E. BORODITSCH, as personal representative of the
estate of Fedor Boroditsch, Deceased, Plaintiff-Appellant,
v.
COMMUNITY EMERGENCY MEDICAL SERVICE, INC., a Michigan
corporation, Defendant-Appellee.
Docket Nos. 96277, 96330.
Calendar Nos. 6-7, March Term 1994.
Supreme Court of Michigan.
Argued March 9, 1994.
Decided Aug. 2, 1994.

Page 231

[446 Mich. 128] Michael D. Marrs, P.C. (by Michael D. Marrs) Stevensville, for plaintiff in Jennings.

Sachs, Waldman, O'Hare, Helveston, Hodges & Barnes, P.C. (by David K. Barnes, Jr., Ronald S. Weiner, Elizabeth A. Cabot, Barry P. Waldman and Kathleen L. Bogas) Detroit, for plaintiff in Boroditsch.

Page 232

Cummings, McClorey, Davis & Acho, P.C. (by Marcia L. Howe) Livonia, for defendants in Jennings.

Highland & Zanetti, P.C. (by Mark C. Lahti and J.R. Zanetti, Jr.) Southfield, for defendant in Boroditsch.

OPINION

CAVANAGH, Chief Justice.

Our task in these consolidated cases is to determine whether the common-law definitions of gross negligence and wilful and wanton misconduct remain viable against the backdrop of the emergency medical services act (EMSA). 1

446 Mich. 129] I. GROSS NEGLIGENCE
A

This Court stated the common-law definition of gross negligence in Gibbard v. Cursan, 225 Mich. 311, 196 N.W. 398 (1923). In Gibbard, the defendant's truck struck the plaintiff's decedent. The evidence revealed that the decedent ran into the path of the defendant's truck after the defendant sounded his horn. At the time we decided Gibbard, Michigan followed the rule that the plaintiff's contributory negligence barred the plaintiff's recovery. 2 The Gibbard Court fashioned the rule of gross negligence to circumvent the harsh rule of contributory negligence. "It is to avoid this rule and to excuse contributory negligence of a plaintiff that the doctrine of gross negligence is usually invoked." Id. at 319, 196 N.W. 398. With this goal in mind, the Gibbard Court defined gross negligence:

In a case 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. Strictly, this is the basis of recovery in all cases of gross negligence. 20 RCL, p 145. Such gross negligence is also sometimes called discovered negligence,[446 Mich. 130] subsequent negligence, wanton or wilful or reckless negligence, discovered peril, last clear chance doctrine, and the humanitarian rule.

* * * * * *

If the plaintiff is in a position which has become dangerous and he is free from negligence, and the defendant knows, or ought by the exercise of ordinary care to know, of plaintiff's peril, and nevertheless negligently injures him, there is no occasion to invoke the doctrine of gross negligence to excuse negligence of plaintiff, for there is no negligence of plaintiff to be excused. [Id. at 319-320, 196 N.W. 398 (emphasis in original).

Gross negligence, as defined in Gibbard, is not a high-degree or level of negligence. On the contrary, it is merely ordinary negligence of the defendant that follows the negligence of the plaintiff. 3 The Gibbard definition has

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continued to hold a place in Michigan law despite this Court's rejection of the practices that compelled its creation.
B

The Gibbard definition of gross negligence was designed to avoid the harsh consequences that often resulted from this jurisdiction's adherence to the bar of contributory negligence. This Court has since, however, abandoned the doctrine of contributory negligence, Placek v. Sterling Heights, 405 Mich. 638, 650, 275 N.W.2d 511 (1979), eliminating the justification for the Gibbard definition. This Court's adoption of pure comparative negligence, in lieu of contributory negligence, eliminates the very imperfection the Gibbard Court sought to circumvent--it avoids unfair and unjust results. [446 Mich. 131] Under pure comparative negligence, a plaintiff's negligence does not bar the plaintiff's recovery; instead, it reduces the amount of the plaintiff's recovery, allocating liability in proportion to fault. See, generally, id. at 652-656, 275 N.W.2d 511, and Kirby v. Larson, 400 Mich. 585, 613-629, 256 N.W.2d 400 (1977) (opinion of Williams, J.). With the elimination of the contributory negligence bar, the desirability of the Gibbard's gross negligence is greatly lessened.

Following our elimination of the contributory negligence rule, we have rejected the doctrines that held a place in our jurisprudence only because of our adherence to that rule. The demise of contributory negligence compelled our rejection of the doctrine of last clear chance. Petrove v. Grand Trunk W.R. Co, 437 Mich. 31, 33, 464 N.W.2d 711 (1991). When rejecting the doctrine, we adopted as our own the analysis of Callesen v. Grand Trunk W.R. Co, 175 Mich.App. 252, 259-263, 437 N.W.2d 372 (1989). Petrove, 437 Mich. at 33, 464 N.W.2d 711. The Callesen panel reasoned that in the absence of the harsh "all or nothing" contributory negligence bar, the doctrine was rendered obsolete:

"[I]t is recognized by nearly all who have reflected upon the subject that the last clear chance doctrine is, in the final analysis, merely a means of ameliorating the harshness of the contributory negligence rule. Without the contributory negligence rule there would be no need for the palliative doctrine of last clear chance. To give continued life to that principle would defeat the very purpose of the comparative negligence rule--the apportionment of damages according to the degree of mutual fault. There is, therefore, no longer any reason for resort to the doctrine of last clear chance...." [Callesen, 175 Mich.App. at 261, 437 N.W.2d 372 (quoting Kaatz v. State, 540 P.2d 1037, 1050 [Ala., 1975].]

It is clear from the case of Zeni v. Anderson, 397 [446 Mich. 132] Mich. 117, 146-151, 243 N.W.2d 270 (1976), that Gibbard's "gross negligence" is merely an alternative label used to describe the doctrine of last clear chance. 4 "Such gross negligence is also sometimes called ... last clear chance doctrine...." Gibbard 225 Mich. at 319, 196 N.W. 398.

Gibbard's formulation of gross negligence is really the doctrine of last clear chance in disguise; accordingly, its usefulness is dubious at best in light of our holding in Petrove.

While we recognize that Gibbard's gross negligence is a seventy-year-old doctrine, we must nevertheless discard it because it has outlived its usefulness. We do not take such action lightly, but we cannot continue to inflict on our citizenry a doctrine that makes little sense in today's jurisprudence. "We are out of step for no good reason and by these presents I would move to the cadenced music of the legal times." Dearborn v. Bacila, 353 Mich. 99, 113, 90 N.W.2d 863 (1958) (authority omitted). Admittedly, adherence

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to precedent brings stability to the law, but when the precedent fails to serve the law, instead rendering the law its servant, we must sacrifice stability to fulfill our obligation. 5

[446 Mich. 133] This is an instance in which precedent fails to promote justice. We have repudiated the traditional justification for Gibbard's gross negligence. Contributory negligence no longer holds a place in Michigan jurisprudence, compelling the demise of its attendant legal theories. "The reasons for the old rule no longer obtaining, the rule falls with it." Montgomery v. Stephan, 359 Mich. 33, 49, 101 N.W.2d 227 (1960).

C

We would be remiss if we attempted to determine the continued viability of Gibbard's gross negligence, without an analysis of the EMSA and its purpose. Generally, when interpreting a statutory provision, we seek to effectuate the Legislature's intent. In the course of our analysis, we will avoid interpretations that produce absurd results. The Legislature enacted the EMSA in an effort to (1) provide for the uniform regulation of emergency medical services, and (2) limit emergency personnel's exposure to liability. Malcolm v. East Detroit, 437 Mich. 132, 142, 468 N.W.2d 479 (1991).

While Gibbard's gross negligence has little effect on the earlier objective, it affects the latter because it permits liability on a finding of ordinary [446 Mich. 134] negligence. Under Gibbard's gross negligence "the defendant is guilty of negligence--nothing else, and nothing more." Finkler v. Zimmer, 258 Mich. 336, 341, 241 N.W. 851 (1932). If emergency personnel are liable for ordinary negligence, then the EMSA immunity provision is rendered void. Before the statutory immunity, emergency personnel were liable for their ordinary negligence. The Legislature, dissatisfied with this situation, enacted the EMSA limiting liability to situations of gross negligence or wilful misconduct. Undoubtedly, by providing this limited immunity, the Legislature intended to shield emergency medical personnel from the very liability they were previously exposed to--liability for ordinary negligence. 6

In a similar vein, by providing limited immunity, the Legislature sought to diminish an impediment that discouraged citizens from joining the EMS profession:

[I]t is a comfort to current EMS field personnel that they at least have a statement of legislative support recognizing the difficulty inherent in their jobs. Removing the exemption could affect the morale of EMS workers or make them reluctant to perform certain parts of their jobs for fear of being sued, and could discourage persons from entering EMS occupations. [Senate Analysis Section, SB 159, First Analysis April 14, 1981.] 7

Page 235

[446 Mich. 135] We must give effect to the intent of the Legislature. "The cardinal...

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  • Poly-Flex Const., Inc. v. Neyer, Tiseo & Hindo, No. 1:07-cv-1090.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • 6 Octubre 2008
    ...of concern for whether an injury results." Xu v. Gay, 257 Mich.App. 263, 668 N.W.2d 166, 169-70 (2003) (citing Jennings v. Southwood, 446 Mich. 125, 521 N.W.2d 230, 235 (1994) (citing Gov't Tort Liability Act, MICH. COMP. LAWS § Second, it is at best unclear whether NTH's allegedly negligen......
  • DEP'T OF EDUC. v. GROSSE POINTE PUB. SCHOOLS, Docket No. 252288
    • United States
    • Court of Appeal of Michigan (US)
    • 5 Mayo 2005
    ...object of the in pari materia rule is to give effect to the legislative purpose as found in harmonious statutes. Jennings v. Southwood, 446 Mich. 125, 137, 521 N.W.2d 230 (1994); Travelers Ins. v. U-Haul of Michigan, Inc., 235 Mich.App. 273, 280, 597 N.W.2d 235 (1999). The MMSEA and the ASA......
  • People v. Waterstone, Docket Nos. 303268
    • United States
    • Court of Appeal of Michigan (US)
    • 10 Abril 2012
    ...Of course, “willful” also describes conduct that is intentional, purposeful, voluntary, deliberate, and knowing. Jennings v. Southwood, 446 Mich. 125, 140, 521 N.W.2d 230 (1994). On consideration of the authorities cited above, we see no relevant difference between corrupt behavior and will......
  • Carthan v. Snyder (In re Flint Water Cases), Case No. 16-10444
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • 1 Abril 2019
    ...to escape contributory negligence. Gibbard v. Cursan , 225 Mich. 311, 319, 196 N.W. 398 (1923), overruled by Jennings v. Southwood , 446 Mich. 125, 131–132, 521 N.W.2d 230 (1994), abrogated on other grounds. However, Michigan replaced the rule of contributory negligence with comparative neg......
  • Request a trial to view additional results
154 cases
  • Poly-Flex Const., Inc. v. Neyer, Tiseo & Hindo, No. 1:07-cv-1090.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • 6 Octubre 2008
    ...of concern for whether an injury results." Xu v. Gay, 257 Mich.App. 263, 668 N.W.2d 166, 169-70 (2003) (citing Jennings v. Southwood, 446 Mich. 125, 521 N.W.2d 230, 235 (1994) (citing Gov't Tort Liability Act, MICH. COMP. LAWS § Second, it is at best unclear whether NTH's allegedly negligen......
  • DEP'T OF EDUC. v. GROSSE POINTE PUB. SCHOOLS, Docket No. 252288
    • United States
    • Court of Appeal of Michigan (US)
    • 5 Mayo 2005
    ...object of the in pari materia rule is to give effect to the legislative purpose as found in harmonious statutes. Jennings v. Southwood, 446 Mich. 125, 137, 521 N.W.2d 230 (1994); Travelers Ins. v. U-Haul of Michigan, Inc., 235 Mich.App. 273, 280, 597 N.W.2d 235 (1999). The MMSEA and the ASA......
  • People v. Waterstone, Docket Nos. 303268
    • United States
    • Court of Appeal of Michigan (US)
    • 10 Abril 2012
    ...Of course, “willful” also describes conduct that is intentional, purposeful, voluntary, deliberate, and knowing. Jennings v. Southwood, 446 Mich. 125, 140, 521 N.W.2d 230 (1994). On consideration of the authorities cited above, we see no relevant difference between corrupt behavior and will......
  • Carthan v. Snyder (In re Flint Water Cases), Case No. 16-10444
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • 1 Abril 2019
    ...to escape contributory negligence. Gibbard v. Cursan , 225 Mich. 311, 319, 196 N.W. 398 (1923), overruled by Jennings v. Southwood , 446 Mich. 125, 131–132, 521 N.W.2d 230 (1994), abrogated on other grounds. However, Michigan replaced the rule of contributory negligence with comparative neg......
  • Request a trial to view additional results

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