Gibbons v. Caraway

Riley, J.

(concurring in part and dissenting in part). Because I do not agree with the decision of the plurality and concurrence that the fireman’s rule does not apply to Officer Martin Gibbons’ action against an allegedly grossly negligent driver in Gibbons v Caraway, I respectfully dissent. However, I concur with the decision of this Court to affirm the Court of Appeals decision in Mariin v Fleur holding that the fireman’s rule did not bar Officer David Mariin’s cause of action.

ANALYSIS

1. FIREMAN’S RULE

As adopted from the common law, the fireman’s rule prevents police officers and firefighters from recovering for injuries sustained during the course of their duty. Woods v City of Warren, 439 Mich 186, 190; 482 NW2d 696 (1992), citing Kreski v Modern Wholesale Electric Supply Co, 429 Mich 347, 358; 415 NW2d *337178 (1987). As the plurality notes, see ante, pp 320-321, we first adopted the common-law rule in Kreski in 1987 on the basis of considerations of fairness and good policy. Id. at 370. We stated that the rule in Michigan bars recovery for two types of injuries:

[1] Those deriving from the negligence causing the safety officer’s presence and [2] those stemming from the normal risks of the safety officer’s profession. [Woods, supra at 196.]

In Woods, we relied on Kreski by concluding that the scope of the rule included not only injuries that arose from the negligence that caused the incident requiring the safety officers’ presence, but also applied to injuries arising from the normal, inherent, and foreseeable risks of the chosen profession. See Woods, supra at 195, citing Kreski, supra at 372.

The plurality recognized this point, but notes that, in Kreski, we limited it by stating that not all risks that a safety officer encounters are subject to this rule. See Cavanagh, J., ante, pp 323-324, citing Kreski, supra at 372.1 However, we further clarified that the fireman’s rule “only insulates a defendant from liability for injuries arising out of the inherent dangers of the profession.” Kreski, supra at 373 (emphasis added). Thus, we limited the rule to those risks that were inherent in the profession. Contrary to the conclusion of the plurality, see Cavanagh, J., ante, pp 325-326, I fail to see how the danger of injury from a neg*338ligent or grossly negligent driver for a police officer directing traffic at the scene of an accident is not inherent in the risks that the profession presents. The concurrence by Justice Boyle similarly relies on this fiction that the risk of injury for Officer Gibbons was not inherent in his work as a police officer. See Boyle, J., ante, p 330.2

Moreover, under the facts of Gibbons, the fundamental rationale of the rule as articulated in both Kreski and Woods is applicable. The preeminent reason we deny a police officer or firefighter the right to bring an action in the two types of circumstances identified in Woods, supra at 196, is that these professionals should expect to encounter these dangers and should not seek redress from members of the public when they are injured while confronting them:

[T\he foundational policy rationale [is] that the purpose of safety professions is to confront danger and, therefore, the public should not be liable for damages for injuries occurring in the performance of the very function police officers and fire fighters are intended to fulfill. [Kreski, supra at 368 (emphasis added); see also Woods, supra at 190-191.]

*339This is the most basic rationale. Woods, supra at 190-191. There is a fundamental difference between a safety officer and other occupations that involve danger:

The very nature of police work and fire fighting is to confront danger. The purpose of these professions is to protect the public. It is this relationship between police officers, fire fighters, and society which distinguishes safety officers from other employees. [Kreski, supra at 367.]

The analytic focus in examining whether a danger is unique to the police officer is whether the injury stems directly from the officer’s police functions. Woods, supra at 193.3

H. GIBBONS v CARAWAY

In Gibbons, the police officer’s injury resulted from an accident. Defendant Linda Caraway was allegedly guilty of gross negligence as well as simple negligence in her failure to observe blinking lights, by speeding, and ignoring the traffic directions. Officer Gibbons was acting in his capacity as a police officer while he was directing traffic, and the danger of injury was inherent in his duty to protect the safety of others after a traffic accident. Because the public should not be liable for damages for injuries that occur during the performance of a police officer’s duties, see Kreski, supra at 368, the Court of Appeals rightly concluded that Officer Gibbons’ cause of *340action was barred by the fireman’s rule. On the basis of the considerations of policy and fairness that persuaded us to adopt the common-law fireman’s rule, I would conclude that the fireman’s rule bars Officer Gibbons’ claim of negligence. I would affirm the Court of Appeals decision.

III. MARIIN v FLEUR, INC

In Mariin, the question is whether the hazard to Officer Mariin arose from the normal risks of a police officer’s profession. See Woods, supra at 193, 196; Kreski, supra at 372. In other words, we must determine if the officer’s injury was directly related to his police functions. Woods, supra at 193. Under the facts of Mariin, I do not believe that the injury arose from the exercise of Officer Mariin’s police function. As the Court of Appeals noted, Officer Mariin was off duty, not in uniform, and not exercising his authority as a police officer when he was injured while socializing at a bar. 208 Mich App 631, 636-637; 528 NW2d 218 (1995).4 He was not performing the very function that *341a police officer is intended to fulfill. See Woods, supra at 190-191; Kreski, supra at 368.5 Consequently, I concur in the Court’s decision to affirm the Court of Appeals decision.

CONCLUSION

In Gibbons, Officer Gibbons was exercising his duty as a police officer while directing traffic when he was injured. In refusing to admit that this injury arose from the normal risks inherent in his profession, the plurality and concurrence ignore one of the basic reasons Michigan adopted this common-law rule. I would affirm the Court of Appeals decision in Gibbons to bar his action under the fireman’s rule. In Mariin, Officer Mariin was not performing the very function that a police officer is intended to fulfill when he was injured. Consequently, I concur in the decision to affirm the Court of Appeals decision to reverse the trial court’s grant of summary disposition in favor of defendant Fleur, Inc. I agree that the trial court erred when it concluded that the fireman’s rule barred the action.

The plurality quotes from Kreski, supra at 372:

Of course, this does not include all risks encountered by the safety officer. The fireman’s rule is not a license to act with impunity, without regard for the safety officer’s well-being.

The concurrence by Justice Boyle argues as follows at ante, p 330:

I agree [with the plurality] that [the] injury from the alleged wanton, reckless, or grossly negligent behavior of defendant Caraway, where Caraway was uninvolved with the original act of negligence and where her alleged misconduct occurred after the officer arrived at the scene, was not a “normal, inherent, and foreseeable risk[] of the chosen profession.”

Because the fireman’s rule was adopted by this Court as a common-law rule, if we decide to rework the doctrine, we should not be reluctant to expressly redefine when the rule applies, rather than attempt to fit these facts into the preexisting rules established by Kreski and Woods.

Because we did not define the precise parameters of the rule and recognized that there were exceptions to the rule in Kreski, we stated that we would address different possible exceptions as they arise where the underlying policy is not applicable. See Woods, supra at 194, n 8; Kreski, supra at 371. This point is not relevant to Officer Gibbons’ case because the underlying policy applies to the facts of his case.

The Court of Appeals reasoned:

[W]e believe it is important to return to the basic formulation of the fireman’s rule, namely, that there cannot be liability for injuries arising out of the inherent dangers of the profession where the cause of the injury arises from the reason for the officer’s presence. In the case at bar, it might be said that it is an inherent danger of law enforcement that an arrestee may harbor ill will against the arresting officer and, at some point thereafter, attack the officer. However, what is missing in the present case is a showing that the officer’s presence at the scene of the injury was occasioned, by his duties as a police officer. That is, plaintiff was not at Wally’s Bar because he was answering a police call. Rather, he was socializing there while off duty. It might be appropriate to apply the fireman’s rule had plaintiff been injured while responding on duty to a bar brawl at Wally’s Bar or, for example, while rendering assistance to the bar in an attempt to eject Tardiff because of his intoxicated condition and his refusal to leave. However, that is not what hap*341pened here. Plaintiff was not summoned to Wally’s Bar to act as a police officer. He was present at the bar as a private citizen and it is merely fortuitous that there was also present someone at the bar who harbored ill will toward plaintiff because of his profession. [Emphasis added.]

The hearing referee’s decision that Officer Maxiin’s injury arose out of and in the course of his employment rests on the principles of the worker’s compensation act, which are separate from those that govern the application of the fireman’s rule.