Subjective Good Faith Exception Established by Michigan Supreme Court in Odom v Wayne County Continues to Clearly Delineate Parameters of Liability for Law Enforcement Officers in Michigan

In a case brought to the Michigan Supreme Court by Carson J. Tucker in 2008, Odom v. Wayne County, a seminal (and essentially unanimous) decision and a lasting jurisprudential pillar of governmental tort liability law in Michigan, the Court interpreted the “subjective, good-faith” exception to intentional tort and gross-negligence claims found in Michigan’s Governmental Tort Liability Act (GTLA), MCL 691.1401, et seq.

Decades of uncertainty had surrounded the issues of the parameters of an individual law enforcement officer’s liability when he or she was performing the governmental function of enforcing the law. Odom clarified the scope of the so-called “intentional tort” exception to governmental immunity, the “gross negligence” exception in the GTLA, and the necessary burdens of proof to overcome the presumptive immunity granted to all individual governmental employees in Michigan.

As demonstrated by this March 3, 2020 Court of Appeals opinion, Mendoza v Robinson, et al, Odom’s protection of the discretionary actions and day-to-day decision making that law enforcement officers have to engage in is still protected by the well-established “subjective, good faith” exception.

This standard allows law enforcement officers to focus on the necessary tasks of serving and protecting the public. Establishing strong judicial precedent and clarifying the parameters of liability within which governmental employees must consider their day to day actions significantly reduced litigation and, more importantly, liability payouts by the government in the state of Michigan.

Carson J. Tucker Files Supreme Court Application in Highway Defect Case

Law Offices of Carson J. Tucker filed an application in the Michigan Supreme Court on February 25 in the case of Menard v Imig requesting the Michigan Supreme Court to tie up loose ends in the interpretation of the notice provision in the Highway Exception to governmental immunity under the Governmental Tort Liability Act (GTLA), MCL 691.1401, et seq. Read our application here: ALTA.02.25.2020

We have been preparing, formatting and filing our briefs in the Court of Appeals and Supreme Court under Administrative Order 2019-6, which allows us to use all the readability and formatting tools of Adobe to create fully interactive and e-friendly briefs. As a former Supreme Court law clerk and an insurance coverage counsel, Mr. Tucker understands the convenience of having a fully interactive document with all file contents and citations referenced and linked for quick review. The ideal briefs (which we strive to create) will contain links to cases, links to the direct location (page and line) in the Appendix and/or accompanying attachments and indices and tables of contents that are fully interactive – meaning the reader can toggle back and forth to the references and have immediate confirmation and documentary support for our arguments and factual assertions, respectively. We can also use a larger, eye-friendly font!

Lawyer’s Weekly Chronicles Appellate Court Victory by Law Offices of Carson J. Tucker

The lawyer’s weekly recently published an article on the Menard v Imig case in which I successfully represented the Macomb County governmental defendants in the Court of Appeals, briefing and arguing this case addressing governmental immunity and the highway defect exception under the Governmental Tort Liability Act.

Macomb County Road Department Not Liable


Michigan Supreme Court Poised to Decide Whether Strict or Substantial Compliance is Sufficient Under Highway Exception to Governmental Immunity

Oral arguments on applications to the Michigan Supreme Court have been scheduled to determine whether the notice provisions of the Governmental Tort Liability Act’s (GTLA) “highway exception” to immunity are to be “strictly” or only “substantially” complied with.

The order springs from two Court of Appeals cases, Wigfall v Detroit, and West v Detroit. Both cases involve, among other questions, the sufficiency of notice provided to the City under the “highway exception”, MCL 691.1404(2).

The Supreme Court has scheduled oral argument on several questions, including:

(1) whether strict or substantial compliance is required with the notice provision contained within MCL 691.1404(2), compare Rowland v Washtenaw County Road Commission, 477 Mich 197 (2007), with Plunkett v Dep’t of Transportation, 286 Mich App 168 (2009);

(2) whether the plaintiff’s notice failed to comply with MCL 691.1404(2) under either a strict or substantial compliance standard;

(3) whether an individual described in MCR 2.105(G)(2) can delegate the legal authority to accept lawful process under MCL 691.1404(2), see 1 Mich Civ Jur Agency § 1 (2018); and

(4) whether the defendant should be estopped from asserting that the statutory notice requirement was not met.

Here is the Court’s complete orders from both cases: Wigfall v Detroit MOAA Order and West v Detroit MOAA Order

The outcome of this case will be significant in consideration of governmental liability under the GTLA.

Law Offices of Carson J. Tucker has developed a particular expertise in prosecuting and defending appeals in state and federal courts, including the United States Supreme Court. The firm’s principal Carson J. Tucker is also a frequent author of amicus curiae (friend of the court) briefs in the United States Supreme Court and state and federal courts on behalf of various governmental and non-governmental entities, not-for-profit corporations, and individuals.

A significant portion of his practice is also focused on appellate matters in which his efforts are directed at changing the law for a wide swath of interested parties and stakeholders. In addition to being licensed to practice in Michigan, Mr. Tucker is admitted to practice in the Eastern and Western District Federal Courts in Michigan, the United States Court of Appeals for the Sixth Circuit, and the United States Supreme Court.

Mr. Tucker has also presented for the International Municipal Lawyers Association (IMLA) on the latest legal issues in municipal liability law under the U.S. Constitution,  and related state and federal legislation, covering his familiarity and expertise on the many diverse questions that arise in this ever-changing and dynamic area of the law.

Mr. Tucker presented direct representation to the defendants and prosecuted the entire appeal, including all appellate briefings and oral arguments before the Court of Appeals and Supreme Court in the following cases, among others:

  • Estate of Truett v. Wayne County, Unpublished Opinion of the Michigan Court of Appeals, dated May 6, 2014 (Docket No. 313638)briefed and argued by Carson J. Tucker for Wayne County
  • Atkins v. SMART, 492 Mich. 707 (August 20, 2012), application granted, and briefed and argued by Carson J. Tucker in the Supreme Court
  • Gentry v. Wayne County Deputy Sheriff Daniel Carmona, unpublished opinion of hte Michigan Court of Appeals, dated October 11, 2011 (Docket No. 296580), briefed and argued by Carson J. Tucker in the Court of Appeals
  • Hamed v. Wayne County, 490 Mich. 1 (July 29, 2011), briefed and argued by Carson J. Tucker in the Court of Appeals and Supreme Court
  • Odom v. Wayne County, 482 Mich. 459 (December 30, 2008), application for leave to appeal granted, and briefed and argued by Carson J. Tucker in the Supreme Court

Mr. Tucker has also served as special appellate counsel for governmental entities and organizations in writing amicus curiae briefs in the Supreme Court and Court of Appeals in the following cases, among others:

  • Hannay v MDOT, ___ Mich. ___ (December 19, 2014), application granted, amicus curiae filed for Michigan Townships Association, Macomb County, Oakland County and Wayne County, et al., by Carson J. Tucker
  • Yono v. MDOT, ___ Mich ___ (2014), oral argument on application granted, amicus curiae for Oakland, Macomb and Wayne County filed by Carson J. Tucker in support of the state’s application
  • Ashley, LLC v Pittsfield Twp., 494 Mich 875 (2013), application granted, for Pittsfield Township by Carson J. Tucker
  • Hagerty v. Manistee County Road Commission, 493 Mich 933 (2013), amicus curiae for Michigan Municipal League, et al., by Carson J. Tucker

Mr. Tucker can be reached at +17348879261.

Michigan Supreme Court Issues 3-2 Decision on Meaning of “Absolute Immunity” for Executive Level Government Officials Under MCL 691.1407(5)

On June 20, 2013, the Michigan Supreme Court issued a 3-2 Opinion (Justices McCormack and Viviano not participating) holding that “absolute immunity” for executive level government officials applied as well to the performance by these officials of the duties and powers that subordinate governmental employees have in the same governmental department.  This is a remarkable holding that provides some context and extends further the scope and breadth of “absolute” executive immunity under MCL 691.1407(5) of the Governmental Tort Liability Act (GTLA).  Here the Chief of Police of Port Sanilac conducted an ordinary public arrest of an individual under somewhat controversial circumstances.  The individual who was arrested filed suit alleging counts in negligence and intentional tort (false arrest and assault and battery), and claiming the police chief was acting in both his individual and official capacity.

The legal issue concerned whether the “absolute immunity” to which executive level officials are entitled under the GTLA would shield the police chief as an “executive” exercising “executive authority” in a situation in which he acted in a capacity analogous to a “lower level” governmental employee.  In the latter circumstances, such employees are entitled to immunity from suit unless it is plead and proved that they acted with “gross negligence” under MCL 691.1407(2) and (7), or that they committed an “intentional tort” under MCL 691.1407(3).

After my successful defense of a deputy sheriff in the case of Odom v. Wayne County, 482 Mich. 459 (2008), this latter “immunity” came to be known as “good faith” immunity.  This case is discussed extensively in the instant case by both the majority and dissent.

Here, the slim majority holds that an executive level official is entitled to “absolute” immunity under MCL 691.1407(5) even if he or she is performing his executive authority in a manner that is similar to the performance of the duties of lower level employees within his or her governmental department.

Justice Cavanagh writes a very detailed and well-researched dissent.  Joined by Justice Markman, Justice Cavanagh explains the anomaly in providing “absolute” tort immunity to executive officials performing lower-level employee functions.  In cases in which such officials commit “gross negligence” or “intentional torts”, they are not subject to suit under MCL 691.1407(5)’s grant of “absolute immunity” according to the majority’s interpretation and holding.

This is an extremely critical case.  Much like my case, Odom, it provides a modern (perhaps overreaching) interpretation of the meaning of “absolute” immunity.  Now, rather than such immunity being extended to the executive, judicial or legislative official acting and performing his “official” executive duties only, the immunity now extends to his or her acts and conduct that would ordinarily be subject to the “gross negligence” and “intentional tort” exceptions to immunity explored in Odom as applied to lower-level governmental employees.

Given the split nature of the opinion, the rare joinder in dissent between Justices Cavanagh and Markman, and that Justices McCormack and Viviano sat out, it is difficult to suggest this case, although precedent for the time being, will survive as a lasting interpretation of MCL 691.1407(5)’s grant of “absolute immunity”.

Perhaps this is an instance in which the Legislature should step in to clarify the true breadth and extent of “absolute” immunity for the highest-level officials serving the three branches of government.  It would seem unwise to extend “absolute” immunity to these officials when performing the actions of lower-level employees, when the latter would be subject to suit if they acted with “gross negligence” or committed an intentional tort in the asserted performance of the very same functions and duties.

Read the opinion here:  Petipren v Jaskowski.Opinion.06.20.2013