Dedes v. Asch

Riley, J.

(dissenting). Because the majority ignores the plain meaning of MCL 691.1407(2); MSA 3.996(107)(2) by eradicating governmental immunity for state employees who were not the sole cause of an injury, I respectfully dissent.

i

MCL 691.1407(2); MSA 3.996(107)(2) mandates in pertinent part:

[E]ach . . . employee of a governmental agency . . . shall be immune from tort liability for injuries to persons or damages to property caused by the . . . employee . . . while in the course of employment . . . while acting on behalf of a governmental agency if all of the following are met:
(a) The . . . employee ... is acting or reasonably believes he or she is acting within the scope of his or her authority.
(b) The governmental agency is engaged in the exercise or discharge of a governmental function.
(c) The . . . employee’s . . . conduct does not amount to gross negligence that is the proximate cause of the injury or damage. As used in this subdivision, "gross negligence” means conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results. [Emphasis supplied.]

" 'The cardinal rule of statutory construction is to ascertain and give effect to the intention of the legislature.’ ” City of Lansing v Lansing Twp, 356 *120Mich 641, 648; 97 NW2d 804 (1959), quoting Melia v Employment Security Comm, 346 Mich 544, 562; 78 NW2d 273 (1956). As the law-making branch of government, the Legislature is presumed to understand the meaning of the language it places into law, therefore, "[statutory analysis necessarily begins with the wording of the statute itself.” Carr v General Motors Corp, 425 Mich 313, 317; 389 NW2d 686 (1986). Hence, each word is "presumed to be made use of for some purpose,” and "so far as possible, effect must be given to every clause and sentence.” Univ of Michigan Bd of Regents v Auditor General, 167 Mich 444, 450; 132 NW 1037 (1911). Accordingly, the Court may not ignore, substitute or redefine language, People v Crucible Steel Co of America, 150 Mich 563, 567; 114 NW 350 (1907), or assume that the Legislature inadvertently utilized one word or phrase instead of another. Detroit v Redford Twp, 253 Mich 453, 456; 235 NW 217 (1931). This Court, therefore, must follow the unambiguous and clear dictate of a statute. City of Lansing, supra at 649.

Furthermore, the Legislature is presumed to use words that have been subject to judicial interpretation in the sense in which they have been interpreted. MCL 8.3a; MSA 2.212(1). See also Kirkley v General Baking Co, 217 Mich 307, 316; 186 NW 482 (1922). If, however, "the literal construction of a statute . . . would produce an absurd and unjust result” the Court may deviate from such an interpretation to conform with the "purposes and policies of the act in question.” Salas v Clements, 399 Mich 103, 109; 247 NW2d 889 (1976).

These rules of statutory construction are especially appropriate in the instant case because Michigan strictly construes statutes imposing liability on the state in derogation of the common-law rule of sovereign immunity. See, e.g., Detroit v *121Putnam, 45 Mich 263, 265; 7 NW 815 (1881); Johnson v Ontonagon Co Bd of Co Rd Comm’rs, 253 Mich 465, 468; 235 NW 221 (1931). Moreover, "[c]ourts should take care not to confuse their inquiries into immunity and negligence.” Canon v Thumudo, 430 Mich 326, 335; 422 NW2d 688 (1988).1

ii

At issue in the instant case is the interpretation of the phrase "the proximate cause.” The majority finds that the language "the proximate cause” does not mean what it says. The majority holds that "the proximate cause” truly means "a proximate cause.” This interpretation of the phrase is in clear derogation of the phrase’s plain and obvious meaning. Black’s Law Dictionary (5th ed), p 1324, for instance, defines "the” as "[a]n article which particularizes the subject spoken of.” The dictionary continues:

"Grammatical niceties should not be resorted to without necessity; but it would be extending liberality to an unwarrantable length to confound the articles 'a’ and 'the.’ The most unlettered persons understand that 'a’ is indefinite, but 'the’ refers to a certain object.”

Thus, "the proximate cause” means "the sole proximate cause” and not merely "any or a proximate cause.” Nevertheless, the majority, refusing to join the most unlettered persons, reaches beyond the clear language of the statute to find a *122hidden and metaphysical meaning of this simple phrase. To defeat this clear meaning, the majority inconclusively delves into the common, law and legislative enactments, as well as silent legislative history.

Yet, the language "is plain, unambiguous and not subject to different interpretation by 2 reasonable minds. It is clear, definite, and would be easily understood by even those not trained in the law. The language of this statute, therefore, leaves no room for judicial construction.” City of Lansing, supra at 649. Nor does this interpretation lead to an "absurd” result. After all, historically the state immunized itself from all tort liability, that the Legislature would choose to permit liability only under strict circumstances is not absurd, but simply one of many solutions to a difficult and complex policy issue.

Not only does the majority ignore the obvious meaning of the phrase, it also ignores our previous interpretation of the exact language. The distinction between "the proximate cause” and "a proximate cause” was well recognized in Michigan at the time of the enactment of the legislation at issue. Indeed, this Court has long interpreted the phrase "the proximate cause” as one that is "tantamount to an instruction that, before plaintiff could recover, he must show that defendant’s negligence was 'the sole’ proximate cause of the accident.” Sedorchuk v Weeder, 311 Mich 6, 10-11; 18 NW2d 397 (1945) (rejecting such a charge in a traditional negligence suit because it precluded the possibility that there might be more than one proximate cause).2 The Legislature itself has man*123dated that previously defined terms should be interpreted consistently with prior constructions of this Court. MCL 8.3a; MSA 2.212(1).

The majority’s holding appears to be based on the conclusion that the Legislature could not have been so unwise as to have intended to limit liability in this fashion. Yet, the wisdom, fairness, or incongruity of the statute is not our concern. Melia, supra at 561. Furthermore, the majority’s proposition that the lack of debate regarding the specific language at issue somehow makes clear language ambiguous, inverts statutory construction — only statutes ambiguous on their face justify judicial review of legislative history. After all, the clearest revelation of legislative intent is the actual language of the statute. To find that a silent legislative record somehow deletes clear language is simply too incredulous to rebut.

If the Legislature acted unwisely in enacting the statute or failing to adequately debate its merits, the judiciary may not act to save the Legislature from its folly. As long as they do not violate the constitution, legislative controversies are to be resolved by the various democratic safeguards and checks in the constitution: ballot box,3 initia*124five,4 referendum,5 or constitutional amendment.6 The majority, however, stifles and denigrates these processes by reaching beyond the plain language of the act and crafting a new statute reflective of its sensibilities. Because this is not our role in the constitutional order, I respectfully dissent.

Brickley and Griffin, JJ., concurred with Riley, J.

This Court has repeatedly recognized that legislative action, past and present, on the issue of governmental immunity "evidences a clear legislative judgment that public and private tortfeasors should be treated differently.” Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 618; 363 NW2d 641 (1985); see also Wade v Dep’t of Corrections, 439 Mich 158, 170; 483 NW2d 26 (1992).

See also Schattilly v Yonker, 347 Mich 660, 670; 81 NW2d 343 (1957) (finding a charge referring to "the proximate cause” erroneous because " 'a’ proximate cause” was proper); Reynolds v Majewski, 351 Mich 492, 497; 88 NW2d 405 (1958) (holding a charge referring to *123"the real cause” erroneous because "[t]he phrase should have read, 'a real cause of the accident’ ”); Barringer v Arnold, 358 Mich 594, 599-600; 101 NW2d 365 (1960) (finding a charge that a defendant must be "the proximate cause” erroneous); Kirby v Larson, 400 Mich 585, 605; 256 NW2d 400 (1977) (holding that an instruction that the defendant must be "the proximate cause” was "tantamount to an instruction that plaintiff cannot recover unless defendant’s negligence is the sole proximate cause of an accident, an interpretation completely ignoring the possibility that there may be two proximate causes”); Moerman v Kalamazoo Co Rd Comm, 129 Mich App 584, 598; 341 NW2d 829 (1983) (noting the distinction between "a proximate cause” and "the proximate cause”). Cf. Attorney General v Kent Co Rd Comm, 184 Mich App 525, 527; 459 NW2d 11 (1990) (finding that MCL 600.1615; MSA 27A.1615, which mandates that the home county of a governmental unit is "the proper county” for venue, provides for one proper county for venue).

Const 1963, art 2, § 8 ("Laws shall be enacted to provide for the *124recall of all elective officers except judges of courts of record”); art 4, § 2 (senators are to be elected every four years); art 4, § 3 (representatives are to be elected every two years); art 5, § 21 (the Governor is to be elected every four years).

Const 1963, art 2, § 9 ("The people reserve to themselves the power to propose laws and to enact and reject laws, called the initiative”).

Id. ("The people reserve to themselves . . . the power to approve or reject laws enacted by the legislature, called the referendum.”)

Const 1963, art 12, §§ 1-3 (outlining three methods to amend the state constitution).