Lego v. Liss

Michigan Supreme Court

Lansing, Michigan

Chief Justice: Justices:

Syllabus Robert P. Young, Jr. Stephen J. Markman

Brian K. Zahra

Bridget M. McCormack

David F. Viviano

Richard H. Bernstein

Joan L. Larsen

This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:

prepared by the Reporter of Decisions for the convenience of the reader. Corbin R. Davis

LEGO v LISS

Docket Nos. 149246 and 149247. Argued October 14, 2015 (Calendar No. 3). Decided

January 4, 2016.

Michael Lego and his spouse, Pamela Lego, brought an action against Jake Liss in the

Wayne Circuit Court, alleging that Liss, a police officer, acted with gross negligence when he

shot Michael Lego, a fellow officer, while attempting to apprehend an armed-robbery suspect.

Defendant moved for summary disposition, arguing that the suit was barred by MCL 600.2966,

which provides immunity from tort liability for injuries arising from the normal, inherent, and

foreseeable risks of the firefighter’s or police officer’s profession. The court, John H. Gillis, Jr.,

J., denied the motion, and defendant appealed. The Court of Appeals, OWENS and SHAPIRO, JJ.,

(JANSEN, P.J., concurring in part and dissenting in part), affirmed in an unpublished opinion per

curiam, issued March 27, 2014 (Docket Nos. 312392 and 312406), holding in part that the

applicability of MCL 600.2966 could not be decided as a matter of law because plaintiffs’

allegations, if true, would demonstrate that defendant had acted in disregard of his police training

and violated numerous safety procedures. The Supreme Court granted defendant’s application

for leave to appeal. 497 Mich 926 (2014).

In a unanimous opinion per curiam, the Supreme Court held:

The Court of Appeals erred by holding that defendant would not be entitled to immunity

if he acted with gross negligence. MCL 600.2966 immunizes governmental entities and

employees from all tort liability for an injury to a firefighter or police officer that arises from the

normal, inherent, and foreseeable risks of the police officer’s profession. These risks may

include being shot by a fellow officer while engaging an active shooter, regardless of the degree

of recklessness with which the injuring party acted. Accordingly, defendant was entitled to

immunity as a matter of law.

Court of Appeals judgment reversed in part; case remanded to the Wayne Circuit Court

for entry of an order granting summary disposition to defendant.

©2016 State of Michigan

Michigan Supreme Court

Lansing, Michigan

Chief Justice: Justices:

OPINION Robert P. Young, Jr. Stephen J. Markman

Brian K. Zahra

Bridget M. McCormack

David F. Viviano

Richard H. Bernstein

Joan L. Larsen

FILED January 4, 2016

STATE OF MICHIGAN

SUPREME COURT

MICHAEL LEGO and PAMELA LEGO,

Plaintiffs-Appellees,

v Nos. 149246 and

149247

JAKE LISS,

Defendant-Appellant.

BEFORE THE ENTIRE BENCH

PER CURIAM.

We granted leave to appeal in this case to consider the scope of the immunity

provision of the firefighter’s rule for governmental entities and employees,

MCL 600.2966. During an attempted apprehension of an armed-robbery suspect, the

defendant, Jake Liss, a police officer, shot the plaintiff Michael Lego, also a police

officer. Lego and his spouse, Pamela Lego, filed suit against the defendant, asserting

gross negligence. The trial court denied the defendant’s motion for summary disposition

based on MCL 600.2966 and the Court of Appeals affirmed in a divided opinion. 1 We

granted leave to appeal. 497 Mich 926 (2014). We reverse in part the judgment of the

Court of Appeals and remand this case to the Wayne Circuit Court for entry of an order

granting summary disposition to the defendant.

Specifically, we disagree with the Court of Appeals majority that the applicability

of MCL 600.2966 could not be decided at this time as a matter of law under the facts

presented in this case. MCL 600.2966 provides in part as follows:

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.]

The majority erred by affirming the denial of summary disposition to the

defendant on the basis that the plaintiffs’ allegations, if true, would demonstrate that the

defendant acted in disregard of his police training and violated numerous safety

procedures. The majority essentially determined that the defendant might not be entitled

to immunity if his actions were especially egregious; in other words, if the defendant

were grossly negligent, he would not be entitled to immunity because the injury resulting

from his actions would not “arise[] from the normal, inherent, and foreseeable risks of

1

Lego v Liss, unpublished opinion per curiam of the Court of Appeals, issued March 27,

2014 (Docket Nos. 312392 and 312406). The Court of Appeals also affirmed the trial

court’s denial of summary disposition to defendant based on the worker’s compensation

exclusive remedy provision, MCL 418.131(1), and defendant has not appealed that

ruling.

2

[Michael Lego’s] profession” as required under MCL 600.2966. This interpretation of

the language “normal, inherent, and foreseeable risks,” however, contravenes MCL

600.2966, especially when it is read in conjunction with the general firefighter’s rule,

MCL 600.2967. 2 That rule provides that a firefighter or police officer may sue for

damages for injuries arising out of a normal, inherent, and foreseeable risk of his or her

profession if the injuring party acted with (among other mental states) gross negligence.

MCL 600.2967(1)(a)(i). But MCL 600.2966 exempts governmental entities and

employees from that general rule by immunizing them from all tort liability “for an injury

to a firefighter or police officer that arises from the normal, inherent, and foreseeable

2

MCL 600.2967(1) provides in pertinent part:

Except as provided in [MCL 600.2966], 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:

(a) An injury or resulting death that is a basis for the cause of action

was caused by a person’s conduct and that conduct is 1 or more of the

following:

(i) Grossly negligent.

(ii) Wanton.

(iii) Willful.

(iv) Intentional.

(v) Conduct that results in a conviction, guilty plea, or plea of no

contest to a crime under state or federal law, or a local criminal ordinance

that substantially corresponds to a crime under state law.

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risks of the firefighter’s or police officer’s profession.” To hinge the applicability of this

immunity provision on the degree of recklessness with which the defendant acted would

undermine the statutory language by potentially denying immunity to a governmental

defendant on the very basis for which the statute is intended to provide such immunity.

Rather, when determining the applicability of the immunity provision of MCL 600.2966,

the inquiry must be whether the injury arose from the normal, inherent, and foreseeable

risks of the police officer’s or firefighter’s profession.

The undisputed facts here are that Michael Lego was shot by the defendant as both

were attempting to apprehend an armed robbery suspect. As the Court of Appeals partial

dissent correctly concluded, “being shot by a fellow police officer while engaging an

active shooter is one of ‘the normal, inherent, and foreseeable risks of . . . [a] police

officer’s profession’ within the meaning of MCL 600.2966.” This is true irrespective of

whether the defendant was acting consistently with his training and departmental safety

procedures or whether the defendant was grossly negligent while attempting to apprehend

the suspect in this case. 3 Thus, no question of material fact remains unresolved. 4

3

This conclusion does not mean, as the Court of Appeals majority suggested, that being

shot by another officer is “always, as a matter of law, a normal, inherent, and foreseeable

risk of being a police officer.” Lego, unpub op at 2. It simply means that the fact that

there is a question whether the defendant acted with gross negligence cannot alone

transform a normal, inherent, and foreseeable risk of a police officer’s profession into one

that is not normal, inherent, and foreseeable.

4

To the extent that the Court of Appeals majority opinion relied on the federal district

court decision in Rought v Porter, 965 F Supp 989, 994 (WD Mich, 1996), we agree with

Court of Appeals Judge JANSEN in her partial dissent that it is not binding. Lego, unpub

op at 2 (JANSEN, P.J., concurring in part and dissenting in part). See also Abela v Gen

Motors Corp, 469 Mich 603, 607; 677 NW2d 325 (2004) (stating that lower federal court

decisions are not binding on state courts). Further, while the phrase “normal, inherent,

4

Accordingly, the defendant is entitled to immunity as a matter of law. We reverse

in part the judgment of the Court of Appeals and remand this case to the Wayne Circuit

Court for entry of an order granting summary disposition to the defendant.

Robert P. Young, Jr.

Stephen J. Markman

Brian K. Zahra

Bridget M. McCormack

David F. Viviano

Richard H. Bernstein

Joan L. Larsen

and foreseeable risks” can be traced to our interpretations of the common-law

firefighter’s rule, see e.g., Kreski v Modern Wholesale Electric Supply Co, 429 Mich 347,

351, 372; 415 NW2d 178 (1987), we are not bound by those interpretations because the

common-law rule has been abolished, MCL 600.2965, and the phrase has not clearly

acquired a “peculiar and appropriate meaning in the law,” MCL 8.3a.

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