McCaw v. T & L Operations, Inc.

• Decision Date: 23 June 1998
• Docket Number: Docket No. 206722
• Citation: 584 N.W.2d 363,230 Mich.App. 413
• Parties: Daniel T. McCAW and Toni McCaw, Plaintiffs-Appellees, v. T & L OPERATIONS, INC., doing business as Dixie Bar, Defendant-Appellant, and Michael K. Williams, Not Participating.(On Remand)
• Court: Court of Appeal of Michigan — District of US

Page 363

584 N.W.2d 363

230 Mich.App. 413

Daniel T. McCAW and Toni McCaw, Plaintiffs-Appellees, v. T & L OPERATIONS, INC., doing business as Dixie Bar Defendant-Appellant and Michael K. Williams, Not Participating.(On Remand)

Docket No. 206722.

Court of Appeals of Michigan.

Submitted Oct. 10, 1997, at Lansing.

Decided June 23, 1998, at 9:05 a.m.

Released for Publication Sept. 29, 1998.

Raymond L. Krell, by Derek A. Hurt, Detroit, for Plaintiffs-Appellees.

Kallas & Henk, P.C. by Edward J. Lee, Bloomfield Hills, for T & L Operations, Inc.

Before MacKENZIE, P.J., and MARK J. CAVANAGH and WHITE, JJ.

MARK J. CAVANAGH, Judge.

This case is before us for the second time. In our first decision, we concluded that plaintiff Daniel McCaw's ¹ claim was barred by the fireman's rule and reversed. McCaw v. T & L Operations, Inc., 217 Mich.App. 181, 550 N.W.2d 852 (1996). The Supreme Court, in lieu of granting leave to appeal, remanded the case for reconsideration in light of its decision in the consolidated cases Gibbons v. Caraway and Mariin v. Fleur, Inc., 455 Mich. 314, 565 N.W.2d 663 (1997). 456 Mich. 869, 569 N.W.2d 163 (1997). We again reverse.

The facts of this case were set out in our previous opinion:

Plaintiff Daniel McCaw is a police officer with the Waterford Township Police Department. During the evening of August 31, 1991, plaintiff was dispatched to investigate a reported stabbing at a house on Hira Street. When plaintiff arrived at the residence, he saw a man lying on the front lawn and realized that the man had been stabbed. A man, later identified as Michael Williams, came out on the porch. Because of Williams' behavior, slurred speech, and bloodshot, glassy eyes, plaintiff realized that he was under the influence of alcohol. Williams told plaintiff that he had called the police. When plaintiff attempted to question Williams about the stabbing, Williams became agitated and began to yell at plaintiff. Williams told plaintiff to leave, but plaintiff refused. Williams then informed plaintiff that he was going to leave. Plaintiff stepped in front of Williams to prevent him from departing. Williams began to attack plaintiff. During the ensuing scuffle, Williams struck plaintiff in the face. As a result of this incident, plaintiff suffers from blurred peripheral vision, tinnitus, and an injury to his jaw.

At trial, Williams testified that on August 31, 1991, he was nineteen years old. On that day, he began drinking beer around 3:00 p.m. Around 6:00 p.m., Williams and two friends, Jeff Morgan and Tim Smith, went to the Dixie Bar. At the bar, the three men shared several pitchers of beer and consumed three to five B-52 shots. Williams testified that he was feeling drunk while in the bar. After the men left the bar, Morgan and Smith began to argue. When the men arrived at Williams' house, Williams went inside and fell asleep or passed out. After Williams awoke, Morgan told him that he had stabbed Smith. Williams then called 911. Williams stated that he was not sober during the altercation with plaintiff.

On February 8, 1993, plaintiff filed suit against Williams and the owner and operator of the Dixie Bar, T & L Operations, Inc. (hereafter defendant), to recover for the injuries suffered in the incident. The claim against Williams was based on negligence and alleged that Williams acted in a "wilful, wanton and reckless manner." The claim against defendant was based on multiple violations of the dramshop act, M.C.L. § 436.22; M.S.A. § 18.993. Specifically, plaintiff alleged that defendant served alcohol to Williams when the latter was both underage and visibly intoxicated.

* * * * * *

On July 21, 1994, a default was entered against Williams. Williams participated in the subsequent trial only as a witness and is not involved in this appeal.

Soon after, the case was tried before a jury. After the close of plaintiff's proofs, defendant moved for a directed verdict on the basis that the fireman's rule barred plaintiff's claim and because plaintiff failed to show that the dramshop violation was a proximate cause of plaintiff's injuries. The trial court denied the motion as it related to the fireman's rule and allowed plaintiff to recall Williams to establish the element of proximate cause. On August 1, 1994, the jury returned a verdict for plaintiff. Plaintiff was awarded $121,689.89, and plaintiff's wife was awarded $25,000 for her loss of consortium claim. The trial court later granted plaintiff's motion for an award of costs and attorney fees and denied defendant's motion for judgment notwithstanding the verdict. [McCaw, supra at 183-185, 550 N.W.2d 852.]

The fireman's rule was adopted by the Supreme Court as a common-law rule in Kreski v. Modern Wholesale Electric Supply Co., 429 Mich. 347, 415 N.W.2d 178 (1987). The fireman's rule prevents police officers and fire fighters from recovering for injuries arising out of the risks of their respective professions. Id. at 351, 415 N.W.2d 178. The scope of the rule includes both negligence in causing the incident requiring a safety officer's presence and those risks inherent in fulfilling the police or fire fighting duties. Id. at 372, 415 N.W.2d 178.

The Court next addressed the application of the fireman's rule in Woods v. City of Warren, 439 Mich. 186, 190, 482 N.W.2d 696 (1992). In Woods, the Court explained that the rule bars recovery for two types of injury: "those derived from the negligence causing the safety officer's presence and those stemming from the normal risks of the safety officer's profession." Id. at 196, 482 N.W.2d 696. The analytical focus must be on whether the injury stems directly from the safety officer's professional functions. Id. at 193, 482 N.W.2d 696. Nevertheless, the fireman's rule may not apply in situations where the policy rationales for its adoption are inapplicable. Id. at 194, n. 8, 482 N.W.2d 696.

The Supreme Court's recent decision in Gibbons, supra, involved two consolidated cases, Gibbons v. Caraway and Mariin v. Fleur. In Mariin, an off-duty police officer, dressed in civilian clothes, was socializing in a bar. The officer was injured when another patron in the bar recognized him as the one who had arrested the patron several years previously and attacked him. Gibbons at 319, 565 N.W.2d 663. A majority of the Court held that the fireman's rule did not bar the officer's claim because the connection between the injury was too attenuated from the exercise of his police function. See id. at 328, 565 N.W.2d 663 (Cavanagh, J.), at 329, 565 N.W.2d 663 (Boyle, J.), at 340-341, 565 N.W.2d 663 (Riley, J.). ²

In Gibbons, a police officer directing traffic after an accident had occurred was injured when a third party driving along the road swerved and struck him. Id. at 317-318, 565 N.W.2d 663. The Court failed to produce a majority opinion in this case. However, five justices appear to agree that the fireman's rule does not bar a claim for damages for injuries caused by the subsequent wrongdoing of a third party unconnected to the situation that brought the officer to the scene, where the wrongdoing resulted from wanton, reckless, or grossly negligent behavior. See id. at 325-326, 565 N.W.2d 663 (Cavanagh, J.), at 329-330, 565 N.W.2d 663 (Boyle, J.).

A majority of the Gibbons Court clearly agrees that the decision in Woods, supra, should be limited. See id. at 323-324, 565 N.W.2d 663 (Cavanagh, J.), at 329, 565 N.W.2d 663 (Boyle, J.). However, the Court has not delineated the extent of the limitation. The five justices who agreed that the fireman's rule did not preclude recovery in Gibbons did not abandon the requirement in Woods that fire fighters and police officers may not recover for the normal, inherent, and foreseeable risks of their respective professions. These justices reconciled the result in Gibbons with Woods by reaching the somewhat counterintuitive conclusion that, for a police officer directing traffic at the scene of an accident, the danger of injury from a negligent or grossly negligent driver is not inherent in the risks of the profession. ³ See id. at 325, 565 N.W.2d 663 (Cavanagh, J.); at 330, 565 N.W.2d 663 (Boyle, J.). Justice Cavanagh explained this result by quoting language from Kreski stating that the " 'fireman's rule is not a license to act with impunity, without regard for the safety officer's well-being." ' See id. at 325, 565 N.W.2d 663 (Cavanagh, J.), quoting Kreski, supra at 372, 415 N.W.2d 178. Justice Boyle concluded that the injury in Gibbons should be compensable because "there is no direct relationship between the act that caused the injury and the act that occasioned the officer's presence." See Gibbons, supra at 329, 565 N.W.2d 663 (Boyle, J.).

In our opinion, there is an inherent inconsistency in stating both that the fireman's rule bars recovery for injuries stemming from the normal, inherent, and foreseeable risks of the profession and that the fireman's rule "is not a license to act with impunity, without regard for the safety officer's well-being." ⁴ Kreski, supra at 372, 415 N.W.2d 178. In the context of police officers, it is clear that the normal, inherent, and foreseeable risks of the profession include confronting people who will not only act without regard for their safety, but may deliberately attempt to harm them. As the Supreme Court noted in Kreski, "police officers cannot be certain what dangers surround them when investigating a burglary." Id. at 378, 415 N.W.2d 178. Likewise, police officers cannot predict what they will encounter when responding to a report of a stabbing, as plaintiff did in the present case. Gibbons did not produce a majority rationale for resolving this contradiction.

Under the facts of the present case, it is clear that the injuries to plaintiff resulted from Williams' wilful, wanton, reckless, or grossly negligent behavior. ⁵ However, after considering Gibbons, we find dispositive the fact that Williams was not a third party...