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.

Michigan High Court to Address Scope of “Gross Negligence” Exception to Governmental Immunity

In an order issued on December 23, 2014, the Michigan Supreme Court has granted oral argument to consider the state’s application in this wrongful death case.  (Estate of Beals.Order).

The plaintiff is the estate of an individual who was a student at a state technical college that provided vocational and technical training to individuals with disabilities.  The decedent was a student at the college, who had been diagnosed with autism and learning disabilities.

Despite his disabilities, the decedent was an accomplished swimmer.  During an open swim time at the college’s pool, the decedent swam to the deep end of the pool, submerged, and never resurfaced, until he was brought to the surface by other students who noticed his plight.  The pool’s student lifeguard, who was described by witnesses as being distracted and inattentive around the time of the incident, was unable to resuscitate the decedent.  He was declared dead upon arrival at the hospital.  The cause of death was accidental drowning.

The estate sued the state of Michigan, the college, and the lifeguard who was on duty at the time of the accident.  The government moved for summary disposition, arguing that the lifeguard’s conduct did not arise to “gross negligence” within the meaning of Michigan Compiled Laws (MCL) 691.1407 the “gross negligence” exception to immunity, and even if his conduct did satisfy the statutory definition, it was not, as is required  by the Governmental Tort Liability Act, MCL 691.1407(2)(c) “the proximate cause” of the decedent’s accident and death.  The trial court denied the government’s summary motion to dismiss the case.

The Court of Appeals affirmed in a 2 to 1 unpublished opinion (Judges Meter and Shapiro in the majority; Judge O’Connell, dissenting).  Estate of Beals v. State of Michigan, et al.

The central issue in the case was whether the lifeguard’s conduct was “the proximate cause of the injury or damage.” MCL 691.1407(2)(c) (emphasis added). To apply the statute, the Courts have held it must be determined whether a reasonable person could find that the governmental defendant’s conduct or actions were “the one most immediate, efficient, and direct cause” of the injury alleged.  Robinson v. City of Detroit, 462 Mich. 439, 462 (2000).

The factual dispute centered on whether the lifeguard’s conduct or actions, or lack of action was, in the language of the jurisprudence interpreting MCL 691.1407(2)(c) “the one most immediate, efficient, and direct cause of” the decedent’s death.

The majority opinion reasons that reasonable minds could disagree on whether the lifeguard’s action or inaction was the proximate cause.  However, the dissenting judge, Judge O’Connell reasoned that since there was a chain of events that lead to the decedent’s death, most of which were caused by the decedent’s participating in the open swim, swimming to the deep end of the pool, and going under, it was impossible to conclude that the lifeguard’s conduct alone was “the most direct and immediate cause”.  Since a “chain of events” cannot serve as a substitute for the statutory standard, it could not be the source of tort liability against a governmental employee under the Governmental Tort Liability Act (the GTLA).

The Supreme Court’s order requests the parties to brief the issue simply as whether the lifeguard’s  “alleged failure to act was the proximate cause of the decedent’s death. MCL 691.1407(2)(c)” of the GTLA.

It should be noted that at least until now the Supreme Court has applied a narrow construction to the statutory exceptions to the government’s suit immunity.  That rule applies with equal force to the “statutory” gross negligence standard, which, unlike the common-law articulation, includes the requirements enunciated in the statutory definition found in MCL 691.1407(2)(c).  With the recent liberalization of the interpretive principles and the Court’s apparent willingness to look to common law rules that predated the passage of the GTLA, it will be interesting to see how the litigants and the Court address this significant case.

This case will also likely garner significant attention because related inferior appellate court cases have recently addressed the scope of the “gross negligence” exception to governmental immunity in actions against individual governmental actors.  Seethe following link, in which I discuss these cases:

Gross Negligence Exception to Immunity Under Attack in Cases Against “Emergency First Responders”

I have been directly involved in at least four cases as the government’s appellate attorney (Odom v. Wayne County, Hamed v. Wayne County, Atkins v. SMART Bus, and the Court of Appeals opinions in Gentry v. Wayne County and Truett v. Wayne County), and tangentially involved writing as amicus curiae in many others, which have demonstrated and continued the trend the government and its individual actors should be protected to a great degree to allow the smooth and uninterrupted operation of government affairs in day-to-day life.  I continue to believe that unnecessary litigation and large damages claims are inconsistent with this.  The Michigan Supreme Court’s decisions, which I secured in Odom, Hamed, and Atkins, as well as the Court of Appeals opinions in Gentry and Truett, were instrumental in advancing this overarching theme that should be the focus of those defending actions against the government.

If anyone has questions about any of these opinions, please call the Law Offices of Carson J. Tucker.

Effective appellate representation demands different skills than those required by litigation attorneys.  Mr. Tucker is adept at analyzing the intricacies of each case from an objective and critical perspective.  From reviewing and preparing the lower court record, identifying appealable errors, and developing a strategy to raise issues that will be addressed by appellate courts, Mr. Tucker is capable of handling the most complex appeals from the application stage to oral advocacy before the highest courts.

Mr. Tucker’s research abilities and knowledge of current issues in nearly all major subject-matter areas of the law provides his clients with efficient and immediate assistance with complex and high-exposure cases.

Mr. Tucker is experienced at navigating through all appellate courts to shepherd the appeal in the most expeditious fashion possible so that it can be reviewed and quickly ruled upon.

During the past decade, Mr. Tucker has been responsible for several seminal decisions in workers’ compensation, governmental immunity, employment and labor law, civil rights law and insurance coverage.

Because of his specialized knowledge and focus on appellate law and his recognized expertise, Mr. Tucker has been asked to participate as amicus curiae writing briefs for the Supreme Court or as special counsel to other governmental entities in some of the most significant cases in the Court of Appeals and Supreme Court.

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 +17342183605.

 

Lego v. Liss – State Files Appeal in Governmental Immunity Case Involving “Friendly Fire” Incident

Last week, the state of Michigan filed an Application for Leave to Appeal in the Michigan Supreme Court challenging the Court of Appeals (majority) opinion in this case Lego v. Liss, holding that a police officer could be subject to liability (and not immune) in an incident in which the officer shot another police officer while conducting an arrest.

This ruling threatens the balance of immunity provided to law enforcement officers in the performance of their duty and runs contrary to the Governmental Tort Liability Act’s recognition that injuries incurred in the line of duty are inherent risks of policing.  See generally, MCL 691.1401 et seq.

The decision also “excepts” the plaintiff’s claim from the exclusive remedy provisions of the Michigan workers’ compensation disability act on grounds that a question of fact existed as to whether the defendant state trooper’s conduct was sufficiently reckless to come within the “intentional tort” exception to the exclusive remedy provision in MCL 418.131.

Carson J. Tucker represents governmental entities and law enforcement officers.  He is responsible for the Supreme Court’s seminal decision in Odom v. Wayne County, a case in which he succeeded in having the Supreme Court grant leave to clarify the law after more than 30 years of disarray involving liability imposed on law enforcement officers for conduct in the line of duty.

Odom v. Wayne County – Supreme Court Issues Definitive Ruling on Intentional Tort Exception to Governmental Immunity

Effective appellate representation demands different skills than those required by litigation attorneys.  Mr. Tucker is adept at analyzing the intricacies of each case from an objective and critical perspective.  From reviewing and preparing the lower court record, identifying appealable errors, and developing a strategy to raise issues that will be addressed by appellate courts, Mr. Tucker is capable of handling the most complex appeals from the application stage to oral advocacy before the highest courts.  Mr. Tucker’s research abilities and knowledge of current issues in nearly all major subject-matter areas of the law provide our clients with efficient and immediate assistance with complex and high-exposure cases.

Mr. Tucker is experienced at navigating through all appellate courts to shepherd the appeal in the most expeditious fashion possible so that it can be reviewed and quickly ruled upon.

During the  7 years, Mr. Tucker has been responsible for several seminal decisions in workers’ compensation, governmental immunity, employment and labor law, civil rights law and insurance coverage.  Because of his specialized knowledge and focus on appellate law and his recognized expertise, Mr. Tucker has been asked to participate as amicus curiae writing briefs for the Supreme Court or as special counsel to other governmental entities in some of the most significant cases in the Court of Appeals and Supreme Court.

Some of the recent significant cases in which Mr. Tucker has provided direct appellate counsel include:

• Williamson v. GM, Supreme Court No. 149850 (November 25, 2014), application filed and Supreme Court granted
• Estate of Truett v. Wayne County (Court of Appeals Docket No. 313638 (May 6, 2014)
• Yono v. MDOT, ___ Mich. App. ___ (201_), amicus curiae brief to be filed after remand for Michigan Municipal League, et al., by Carson J. Tucker
• Omian v. Chrysler Group, LLC, 495 Mich. 859 (2013), application filed by Carson J. Tucker, Supreme Court remand to Court of Appeals on leave granted, oral argument presented by Carson J. Tucker.
• Ghanam v. John Does, 303 Mich. App. 522 (2013), application to appeal filed in Supreme Court by Carson J. Tucker
• State Farm v. MMRMA, ___ Mich App ___ (2013), amicus curiae for Oakland County in support of MMRMA application, by Carson J. Tucker
• Hannay v MDOT, ___ Mich ___ 201_), 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 ___ (201_), 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
• Huddleston v. Trinity Health, et al., 495 Mich. 976 (2014), oral argument on application granted, amicus curiae with Lawrence Garcia, Esq., for MDTC
• Ashley, LLC v Pittsfield Twp., 494 Mich 875 (2013), application granted, for Pittsfield Township by Carson J. Tucker (resolved by settlement)
• Bailey v. Schaaf, ___ Mich ___ (2013), amicus curiae for MDTC by Carson J. Tucker
• Atkins v. SMART, 492 Mich 707 (2012), oral argument on application, Court of Appeals case reversed by opinion, Carson J. Tucker
• Hagerty v Manistee, 493 Mich 933 (2013), amicus curiae for Michigan Municipal League, et al., by Carson J. Tucker

Michigan Supreme Court Denies Leave in Two of Three Cases Pending to Address Legal Causation Under No-Fault Act for Motorcycle Accidents

Last week I filed an amicus curiae (friend of the court) brief in the State Farm v. MMRMA case pending on application to the Michigan Supreme Court.  As I mentioned in my last post, there were two other cases, both pending on applications to the Court, which asked the Court to deal with the same issue that is presented in this particular case.  Yesterday, the Court denied the applications in those cases.  See the orders here: DMC Case and Smutski v. Auto-Owners, et al.

There has been no disposition of the application in the case for which I submitted an amicus brief.  Thus, it remains the only one still pending.

I previously wrote about these cases in the following posts:

Amicus Curiae Brief Filed in State Farm v. MMRMA

State Farm Seeks Contribution from County Sheriff for Motorcyclist’s Injuries Suffered in Motor Vehicle Accident While Fleeing from Police

Braverman ex rel Smutski v. Auto-Owners, et al.

DMC v. Progressive, et al.

As I mentioned in my previous posts, the Court of Appeals in the Auto Owners case actually remanded for a determination of the factual circumstances involving the motorcycle accident.  There was a question of fact whether the tractor trailer had identifying lights on while it was in the roadway just before the motorcyclist crashed trying to avoid impact with the truck.  In the DMC v. Progressive case the Court of Appeals actually ruled there was no causation.  The “evidence” of involvement of another vehicle was based only on the motorcyclist’s testimony that an unidentified vehicle was about to cross his path and he wrecked his bike while trying to avoid the collision.

It is difficult, if not impossible, to interpret the Court’s actions from its non-action on these two applications.

We shall see what the Court does with the application in the State Farm case.  Although, interestingly, that case has the added wrinkle of involving a governmental entity as the insurance carrier.  Hence, my participation as amicus curiae author in support of the carrier’s application on behalf of Oakland, Wayne and Macomb counties.

I have been at the forefront of the motorcycle accident cases due to my authorship of amicus curiae briefs in the DeYoung / Spectrum case, which I wrote about here:

Supreme Court to Address Taking of Motorcycle in Insurance Coverage Dispute

Supreme Court Undertakes Joyriding and Unauthorized Taking of Motor Vehicles and Motorcycles

up until the present time involving these most recent significant pronouncements on the level of causation and priority among insurers under MCL 500.3114(5) of Michigan’s No-Fault Act.

For more information about this and other similar cases contact Carson J. Tucker, Chair of the Appeals and Legal Research Group at Lacey & Jones, LLP, a Birmingham law firm serving clients since 1912.  Mr. Tucker can be reached at (248) 283-0763.

For more information about Lacey & Jones, click on the following practice area company pages on Linked In.

Lacey & Jones, LLP’s Appeals and Legal Research Group

Lacey & Jones, LLP’s Insurance Coverage and Recovery Group

Lacey & Jones, LLP’s Civil Litigation Group

 

Police Chief Absolutely Immune for Conducting Arrest Under Michigan Governmental Immunity Provisions

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

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

Pennsylvania Supreme Court Unconstitutionally Usurps Constitutional Sheriffs’ Arrest Powers

I am attaching an article describing the ill-conceived decision of the Pennsylvania Supreme Court to reduce the powers of the Constitutional Sheriffs in that State with respect to powers of arrest to nothing more than that of the ordinary citizen. The opinion unconstitutionally usurps the elective franchise of the citizens to vote for who they wish to serve as the Cheif Law Enforcement Officer of their respective counties on their behalf. The underlying premise of the Court, that the state’s legislature can remove the Sheriff’s authority, or, rather, dictate what the Sheriff can and cannot do in the way of law enforcement is constitutional error.

Top Pa. court prohibits sheriffs to run DUI checkpoints

I am also including the opinion here. Marconi v. Commonwealth of Pennsylvania.

As some of you have asked what legal authority supports the view that state legislatures may not usurp a Sheriff’s common-law, indeed constitutional powers and duties, see my short exposition on the subject, which was written after many years of studying this issue:

vitae-republicae1