Robinson v. City of Detroit

Kelly, J.

(concurring in part and dissenting in part). I agree with the majority’s holding that “the police owe a duty to innocent passengers, but owe no duty to passengers who are themselves wrongdoers . . . ,”1 Ante, p 444. The majority recognizes correctly that the Legislature “has placed a duty upon *475police officers toward innocent persons when they are giving chase.” Ante, p 452.

Unfortunately, my agreement with the majority ends there. Its attempt to move our law one step forward by overruling three established decisions leaves it, in my estimation, trailing three steps behind the times.

The majority overrules the proximate cause analysis of Fiser v Ann Arbor, 417 Mich 461; 339 NW2d 413 (1983), and Rogers v Detroit, 457 Mich 125; 579 NW2d 840 (1998). It holds that “an officer’s decision to pursue does not constitute the negligent operation of a motor vehicle.” Ante, p 445. Also, the majority overrules Dedes v Asch, 446 Mich 99; 521 NW2d 488 (1994). In so doing, it holds “that the phrase ‘the proximate cause’ as used in the employee provision of the governmental immunity act, MCL 691.1407(2); MSA 3.996(107)(2), means the one most immediate, efficient, and direct cause preceding an injury, not ‘a proximate cause.’ ” Ante, pp 445-446.

The majority’s decision to overrule three distinct, well-reasoned lines of cases is unparalleled. I am not alone in adjudging such casual regard for prior Michigan jurisprudence and the principles of stare decisis disheartening and unwarranted. One might perceive from the majority’s review of the issues in Fiser, Rogers, and Dedes, that the outcome of this case turns simply on who had the better argument. It does not. The majorities’ positions in those cases became the law of the land. As a consequence, the real question in this case is whether today’s majority has justified *476its decision with the extraordinary showing that this Court has consistently demanded before overruling precedent. In my view, the majority has not come close to making such a showing.

As aptly stated by Justice Marshall in another context:

The overruling of one of this Court’s precedents ought to be a matter of great moment and consequence. Although the doctrine of stare decisis is not an “inexorable command,” Burnet v Coronado Oil & Gas Co, 285 US 393, 405 [52 S Ct 443; 76 L Ed 815] (1932) (Brandéis, J., dissenting), this Court has repeatedly stressed that fidelity to precedent is fundamental to “a society governed by the rule of law,” Akron v Akron Center for Reproductive Health, Inc, 462 US 416, 420 [103 S Ct 2481; 76 L Ed 2d 687] (1983). See generally Patterson v McLean Credit Union, 491 US 164, 172 [109 S Ct 2363; 105 L Ed 2d 132] (1989) (“[I]t is indisputable that stare decisis is a basic self-governing principle within the Judicial Branch, which is entrusted with the sensitive and difficult task of fashioning and preserving a jurisprudential system that is not based upon ‘an arbitrary discretion.’ The Federalist, No. 78, p 490 [H. Lodge ed. 1888] [A. Hamilton]”); Appeal of Concerned Corporators of Portsmouth Savings Bank, 129 NH 183, 227; 525 A2d 671, 701 (1987) (Souter, J., dissenting) (“[S]tare decisis ... ‘is essential if case-by-case judicial decision-making is to be reconciled with the principle of the rule of law, for when governing legal standards are open to revision in every case, deciding cases becomes a mere exercise of judicial will, with arbitrary and unpredictable results,’ ” quoting Thornburgh v American College of Obstetricians and Gynecologists, 476 US 747, 786-787 [106 S Ct 2169; 90 L Ed 2d 779] [1986] [White, J., dissenting]).
Consequently, this Court has never departed from precedent without “special justification.” Arizona v Rumsey, 467 US 203, 212 [104 S Ct 2305; 81 L Ed 2d 164] (1984). Such justifications include the advent of “subsequent changes or development in the law” that undermine a decision’s ration*477ale, Patterson v McLean Credit Union, supra, 491 US 173; the need “to bring [a decision] into agreement with experience and with facts newly ascertained,” Burnet v Coronado Oil & Gas Co, supra, 285 US 412 (Brandeis, J., dissenting); and a showing that a particular precedent has become a “detriment to coherence and consistency in the law,” Patterson v McLean Credit Union, supra, 491 US 173. [Payne v Tennessee, 501 US 808, 848-849; 111 S Ct 2597; 115 L Ed 2d 720 (1991) (Marshall, J., dissenting).][2]

The majority cannot convincingly assert that any of these traditional scenarios for overruling precedent applies to Fiser, Rogers, or Dedes. The evidence it proffers in support of reversal is so feeble that it strains credibility. What has changed since this Court decided Fiser, Rogers, and Dedes is not the law, not the circumstances, but the makeup of the Court, itself.

i

In Rogers v Detroit, this Court revisited its decision in Fiser v Ann Arbor and reaffirmed the principle that a plaintiff may recover from the government for injuries caused by individuals fleeing police officers. The plaintiff must show that a police pursuit constituted negligent operation of a police vehicle. As evidenced by the differing opinions written by members of this Court, the decision was arrived at after consid*478erable deliberation and debate. Now, a new majority has decided that Fiser “has fallen victim to a subsequent change in the law, that Rogers reflects a misunderstanding of the statute that establishes the motor vehicle exception to governmental immunity . . . .” Ante, p 465.

The majority reasons that Fiser has not been good law since 1984, when we decided Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984). Ross, it concludes, requires a narrow reading of the motor vehicle exception. Ante, p 455.

Contrary to the majority’s position, Fiser did not fall “victim to a subsequent change in the law.” Instead, it has fallen victim to a change in this Court. In Rogers, we explicitly considered the defendants’ argument that Fiser was overruled sub silentio by Ross, supra. We stated:

The contention that Fiser was overruled misapprehends the meaning of Ross. The “discretionaiy/ministerial” test of Ross applied only to the common-law liability of individual employees, not to the statutory liability of governmental agencies. Ross held that neither that decision nor MCL 691.1407; MSA 3.996(107) detracts from a city’s liability under MCL 691.1405; MSA 3.996(105), as applied to police pursuits in Fiser. Ross, supra at 591, 593-594, 620-622.
We find that Ross could not and did not overrule Fiser. Thus, we conclude that Fiser remains good law in Michigan .... [Rogers, supra at 140-141.]

The majority adopts Justice Taylor’s dissenting opinion in Rogers. It now maintains that a police officer’s pursuit is comprised of two parts: 1) the decision to pursue and 2) the officer’s physical handling of the vehicle.

*479In Rogers, we explicitly stated that the officer’s decision to commence or continue a pursuit could provide a basis for a finding of liability under MCL 691.1405; MSA 3.996(105). Id. at 145-146. The decisions to pursue, to continue pursuit, and the officer’s actions while pursuing are so intertwined that they provide a jury with no rational means of distinguishing among them.

The majority ignores the fact that an officer’s decision to operate a vehicle at breakneck speed is made simultaneously with the continuing decision to pursue the suspect. Moreover, other investigative measures often can be used in preference to high speed pursuits.3 Police officers should seriously consider these measures in the interest of avoiding the injury or death of innocent persons. It is sometimes better to let a suspect go than to endanger the Uves of innocents.4

Although certain drivers operate their motor vehicles without careful thought, I doubt that the Legislature perceived that police officers routinely do so while in high speed pursuit through residential *480streets. Forcing the jury to sift through the wreckage to find such a distinction defies practical workability.5

Likewise, the majority’s assertion that “the ‘resulting from’ language” does not encompass injuries sustained when the fleeing driver’s vehicle is not hit or otherwise forced off the road or into another vehicle or object by the pursuing police vehicle challenges common sense. Ante, p 457. It illustrates how the majority ignores the factual complexities underlining police chases.

For example, the majority’s premise fails to take into consideration a situation in which a police car forces an innocent intervening car to “hit” the fleeing vehicle. There, the fleeing driver’s vehicle is not hit or otherwise forced off the road or into another vehicle or object by the pursuing police vehicle. Under the majority’s analysis, the government escapes liability simply because the fleeing car was hit by a vehicle other than the police vehicle.

I also note that the Legislature’s deliberate inaction on this subject supports our previous decisions. As Rogers observed, the Legislature has demonstrated *481awareness of this Court’s decision in Fiser. When it chose to amend the governmental immunity act in 1986, it retained unmodified the provisions that were at issue in Fiser. Thus, I continue to adhere to this Court’s Rogers decision, because I believe that Rogers supports legislative policy.

n

Added to the unworkability of its new test to determine whether police officers’ actions allow recovery under MCL 691.1405; MSA 3.996(105), the majority provides a new hurdle for injured innocent third parties. By overruling Dedes v Asch, supra, today’s majority ignores established proximate causation principles and effectively negates the legislative mandate that fault be determined individually with respect to each contributor to a plaintiff’s injuries. MCL 600.6304(1); MSA 27A.6304(1).

Given that the majority has forced this Court to revisit Bedes, I would affirm our decision in that case. The majority couches its holding in terms of “the one most immediate, efficient, and direct cause . . . .” Ante, p 459. However, in effect, it revisits the dissenting position in Dedes, opining that “the proximate cause” in MCL 691.1407(2)(c); MSA 3.996(107)(2)(c) should really read “the one most immediate, efficient, and direct cause preceding an injury . . . ,”6 Ante, p 446. As Justice Boyle opined in Bedes, whether “the *482proximate cause” in MCL 691.1407(2)(c); MSA 3.996(107)(2)(c), should be read “the sole proximate cause,”7 raises “profound consequences for the course of future litigation involving the government.” Dedes, supra at 104.

In search of the answer to this question, the majority asserts that the phrase “the proximate cause,” when used to instruct a jury, actually contemplates “one cause.” Ante, p 462.8 However, as Justice Boyle so aptly noted in Dedes, this argument has only surface appeal:

“A general rule of statutory construction is that ‘[w]ords or phrases shall be read in context and construed according to the rule of grammar and common usage,’ ” Deur v Newaygo Sheriff, 420 Mich 440, 445; 362 NW2d 698 (1984), cert den 471 US 1136 (1984), and “[w]hat is ‘plain and unambiguous’ often depends on one’s frame of reference.” Shiffer v Gibraltar Bd of Ed, 393 Mich 190, 194; 224 NW2d 255 (1974). The defendants contend that because “the” is a definite article while “a” is usually indefinite, the Legislature’s use of the word “the” preceding “proximate cause” demonstrates a clear intent to limit liability to only those circumstances in which the defendant is the sole proximate cause. This plain meaning argument is buttressed by authority from this Court that recognizes a distinction between the *483use of “a proximate cause” versus “the proximate cause” in jury instructions.
The source of the surface appeal of the argument is an instructional issue involving proximate cause, of which the practicing bar is acutely aware. However, it cannot be safely assumed that every courtroom connotation is a part of the legislative culture. While to lawyers the phrase “the proximate cause” implies “sole cause” heresy, it is incorrect to conclude that therefore “the” means sole. “The” cause language is inappropriate because “the” is ambiguous and might be understood by the jury to mean either “a” cause or the “sole” cause. Thus, where the proofs raise a question regarding whether more than one party’s negligence caused the injury, and the jury is not instructed that there can be more than one proximate cause, reference to “the” and “a” proximate cause is instructional error. As we observed in Kirby v Larson, 400 Mich 585, 607; 256 NW2d 400 (1977):
“While it is true that the instructions might have been interpreted to mean a proximate cause, it is also equally true that the jury might have contemplated otherwise.”
Moreover, where used to describe the cause in fact of the injury, “the” and “a” are interchangeable and “the” does not mean “sole.” As noted by the author of the Restatement:
“In many cases the question before the court is whether the actor’s negligence was in fact the cause of the other’s harm—that is, whether it had any effect in producing it—or whether it was the result of some other cause, the testimony making it clear that it must be one or the other, and that the harm is not due to the combined effects of both.” [Restatement Torts, 2d, § 431, comment b, p 429. Emphasis added.] (Dedes, supra at 105-107.]

I continue to find our Bedes rationale persuasive, given the lack of any legislative suggestion of an intent to abolish the long-recognized and fundamental tenet of tort law that “[t]here may be more than one proximate cause for the same injury, and the mere fact that some other cause co-operates with the negligence of the defendant to produce the injuiy for *484which suit is brought does not relieve him from liability.” Camp v Wilson, 258 Mich 38, 42; 241 NW 844 (1932).

The majority contends that Stoll v Laubengayer9 over eighty-five years ago defined proximate cause as “the immediate efficient, direct cause preceding the injury.” However, as we noted in Hagerman v Gencorp Automotive,10 “that was merely one of several definitions considered in Stoll, and the rule to be gleaned from that case is that proximate cause is a case-by-case analysis.”

As we stated in Hagerman, this analysis has developed over time to our present understanding of concurrent proximate causation, consistent with the statutory enactment of comparative fault. Hagerman, supra at 732. Thus, not only may there be more than one proximate cause of an injury, but, where there is, the negligent wrongdoer’s behavior may be referred to as “the proximate cause”:

“[T]here may be two or more concurrent and directly cooperative and efficient proximate causes of an injury. Negligence which was operative at the time an injury was inflicted may constitute the proximate cause of the injury and be actionable, notwithstanding it concurred with the act of a third person to produce the injury.” [Brackins v Olympia, Inc, 316 Mich 275, 281; 25 NW2d 197 (1946) (emphasis added).]

Thus, as we so aptly stated in Hagerman, construing the phrase “the proximate cause” to require one cause contradicts our longstanding recognition of the fact that “there may be two or more concurrent and *485directly cooperative and efficient proximate causes of an injury.” Hagerman, supra at 733. We have neither a textual nor an historical basis on which to find that the Legislature intended we construe MCL 691.1407(2)(c); MSA 3.996(107)(2)(c) to require only one cause. This is particularly significant given the common law’s established recognition of concurrent proximate causation.

Under the majority’s reasoning, this tenet is to be abolished. In its place appears a rule relieving a government employee of all liability for negligence if another tortfeasor is negligent, however slightly, as long as the other’s negligence is later. The net effect of today’s decision is to deny innocent victims of police car chases recovery for their injuries. Applying its rationale, the pursuing police officer will never be the only proximate cause of an injury to an innocent passenger. If a vehicle is fleeing the police, its driver will always be a wrongdoer.

The holding in effect revives the doctrine of contributory negligence with respect to government employees. As Justice Boyle noted, “It defies common sense and the responsible exercise of our authority to conclude that the Legislature would have provided protection tantamount to eliminating liability without having commented on it.”11 Dedes, supra at 115. *486There are no grounds to believe that the statute intended absolute immunity for the actions of police officers when chasing fleeing vehicles.

Moreover, MCL 600.6304(1); MSA 27A.6304(1), as amended by 1995 PA 249, provides additional support for the correctness of our decision in Dedes. This provision states in relevant part:

In an action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death involving fault of more than 1 person, including third-party defendants and nonparties, the court, unless otherwise agreed by all parties to the action, shall instruct the jury to answer special interrogatories or, if there is no jury, shall make findings indicating both of the following:
* * *
(b) The percentage of the total fault of all persons that contributed to the death or injury ....

Surely, had the Legislature intended to exempt government tortfeasors and enact a separate standard of proximate causation with respect to them, it would have included it in this recently amended section. The language of this section makes clear that all tortfeasors, whether government agents ór not, shall be subject to the same standards for purposes of liability.

*487This reasoning is consistent with Justice Boyle’s opinion in Dedes, our opinion in Rogers, and common-law principles of proximate causation. A police officer’s negligence need not be the only or most direct proximate cause of an injury in order to allow recovery. The majority’s decision to overturn this Court’s well-reasoned precedent and reinstate contributory negligence by judicial fiat is mistaken and unwarranted.

in

In her concurrence, Justice Corrigan attempts to defend the majority’s disregard for this Court’s precedents. She protests that the majority is only righting the wrongs perpetrated by previous members of this Court. An examination of the justifications offered by the majority in defense of its disregard for precedent reveals that these protests ring hollow.

In People v Graves,12 Justice Taylor acknowledged:

It is true of course that we do not lightly overrule a case. This Court has stated on many occasions that “[u]nder the doctrine of stare decisis, principles of law deliberately examined and decided by a court of competent jurisdiction should not be lightly departed.” [Quoting People v Jamieson, 436 Mich 61, 79; 461 NW2d 884 (1990).]

In this case, instead of determining whether Fiser and Rogers were “deliberately examined and decided by a court of competent jurisdiction,” Justice TAYLOR first uses the dictionary to define the term “resulting from.” But instead of analyzing whether plaintiffs’ injuries resulted from defendant’s action, he merely *488concludes that “plaintiffs cannot satisfy the ‘resulting from’ language of the statute where the pursuing police vehicle did not hit the fleeing car or otherwise physically force it off the road or into another vehicle or object.” Ante, p 457.

The doctrine of stare decisis does “apply with full force to decisions construing statutes or ordinances . . . .” Boyd v WG Wade Shows, Inc, 443 Mich 515, 525; 505 NW2d 544 (1993). The wisdom of this rule becomes apparent when members of this Court apply contrived meanings to the language of statutes instead of using accepted legal analysis.

The majority also infuses public policy into its reading of the motor vehicle exception, despite its own oft-repeated admonitions that this Court may not consider public policy when interpreting the plain language of a statute. Clearly, the motor vehicle exception allows plaintiffs to recover when government entities negligently operate a motor vehicle. MCL 691.1405; MSA 3.996(105). The exception says nothing about the duty of police officers to apprehend criminal suspects.

In fact, the Legislature has made it clear that emergency vehicles may exceed posted speed limits only in a manner that will not endanger “life or property.” MCL 257.603(3)(c); MSA 9.2303(3)(c). But the majority insists that the police officer’s duty to apprehend criminal suspects conflicts with (1) plaintiffs’ right to recover under these circumstances, and (2) the police officer’s duty not to endanger innocent lives when deciding to pursue a criminal suspect. Ante, p 457. But where does the language of either the motor vehicle exception or MCL 257.603(3)(c); MSA 9.2303(3)(c) address the duty to apprehend criminal suspects? It *489does not. The majority simply places a higher premium on this consideration, to the derogation of the explicit intent of the Legislature.

Moreover, not all the cases in which this majority disposed of prior precedent involved statutory construction. In Ritchie-Gamester v Berkley,13 it overruled Felgner v Anderson14 and Williams v Wood.15 These cases held that, for injuries arising from recreational activities, the proper standard is that of ordinary care. The majority substituted a new standard, reckless misconduct, on the basis of arguments that it made more “common-sense,” and that other states have adopted a similar rule. Ritchie-Gamester, supra at 89. The majority also stated that it sought to “encourage[] vigorous participation in recreational activities.” Id. It did so without consideration of whether the rule Michigan courts had applied during the preceding sixty years had dampened participation in recreational activities. Id.

Finally, Justice Corrigan chastises Justice Cavanagh because, in his dissenting statement to the order granting leave in this case, he refers to Justice Brickley’s past service to this Court.16 I believe that, in so doing, she clouds the real issue.

*490I read Justice Cavanagh’s statement as pointing out that the remaining four justices acted together in all of the six listed occasions. Justice Brickley’s contributing vote did not change the fact that the remaining members of the Court always acted together. Justice Cavanagh’s separate footnote to Justice Brickley’s jurisprudential standards clarified his belief that the latter’s record in opposition to overturning precedent extended far beyond the instant cases. Hence, his decision to join the majority on some occasions was irrelevant.

Justice Corrigan misconstrues Justice Cavanagh’s obvious intent.17 In his dissenting statement, Justice Cavanagh referred to the collective conscience of the majority and its seeming compulsion to act without judicial reserve to nullify past decisions. The majority has affirmatively changed the law, whether through disagreement with the lead opinion in plurality decisions, by expressly overruling precedent, or by forging paths around well-established principles.

Justice Corrigan argues that Justice Brickley’s actual voting record disproves “[t]he claims that the majority lacks respect for the doctrine of stare deci*491sis . . . Ante, p 470, n 1. However, to find support for my concerns, I need go no further than the majority’s opinion in this case. In it, three opinions of this Court are discarded in favor of a strained and erroneous interpretation of the statute involved.

The majority’s casual disregard for this Court’s past opinions suggests to future courts that they do the same and creates instability in the law of this state.

CONCLUSION

The reasons proffered to overrule Dedes, Rogers, and Fiser are based solely on the majority’s subjective, contrived interpretation of the statutes involved. For instance, the Legislature has stated that eveiy time a statute refers to something in the singular, it may be read, also, to mean the plural. MCL 8.3b; MSA 2.212(2). Yet, in a statute where the Legislature referred to one or “the” proximate cause, the majority refuses to include several proximate causes, thereby finding the need to overrule Dedes. Ante, p 468.

In this decision, the majority exposes itself to criticism that it picks and chooses when to apply its preferred principles of statutory interpretation. Here, it has overruled past decisions of this Court because it claims that past Courts have not interpreted the statute involved properly. It acclaims the virtues of giving statutory language its “plain meaning.” But is has given its own meaning to the expression “resulting from,” rather than using the plain meaning. Similarly, it admonishes us not to infuse public policy into the plain language of the Legislature, but proceeds to do so here in reaching its interpretation of the statute. As a consequence of this selective use of preferred *492principles of statutory interpretation, the majority arrives at the conclusion that Fiser and Rogers must be overruled.

The majority fails to convince me that Rogers and Fiser erroneously interpreted the motor vehicle exception to government immunity. It must be reiterated that it has eliminated these rulings without making the extraordinary showing that this Court has consistently demanded before overruling established law.

In the majority’s race to overrule precedent, it establishes a rule that will likely yield unconscionable results. Its new “proximate cause” language provides little motivation for police departments to promulgate and enforce coherent rules concerning police chases. There is little incentive for police officers to adhere carefully to such rules, where they exist. A police officer could claim not to be the most direct proximate cause of an accident arising from a police chase, no matter how outrageous the officer’s actions.18I agree that the fleeing individuals here are responsible to a great extent for plaintiffs’ injuries. However, I would not join the majority in automatically holding the police officers harmless.

Consistent with Dedes and Rogers, I would remand to the trial court for a factual determination of the extent of fault, if any, attributable to the defendant officers.

Cavanagh, J., concurred with Kelly, J.

Although no duty is owed to wrongdoers in a fleeing vehicle, it does not follow that summary disposition should be granted in a broad range of *475circumstances. At some point, a determination must be made whether wrongdoing occurred.

2 In his dissenting statement accompanying the supplemental briefing order in this case, Justice Cavanagh pointed out that Rogers was decided only fourteen months ago:

Stare decisis, of course, is hardly a handcuff enfeebling us from responding to the changes that inevitably occur over time. Such time has, however, heretofore been measurable in years, rather than months. [Cooper v Wade, 461 Mich 1201, 1201-1202 (1999).]

For example, there are instances when the officer could radio the dispatcher and request a roadblock. Other options include the use of air support and photographic evidence to identify the perpetrator. Allowing innocent victims of police chase auto crashes to recover from the state may encourage the further development of technology to apprehend fleeing felons. See note, Cooling the hot pursuit: Toward a categorical approach, 73 Ind L J 1277, 1293-1294 (1998).

The facts of Cooper poignantly illustrate this point. Was it worth the life of fourteen-year-old Damian Collins merely to apprehend him and recover a stolen Jeep Cherokee? likewise, is it not ludicrous to argue that, to protect the public from underage drivers, it was necessary to engage Collins in a high speed pursuit?

I agree with the statements reiterated by the Tennessee Supreme Court in Haynes v Hamilton Co, 883 SW2d 606, 610 (Term, 1994), quoting Boyer v State, 323 Md 558, 574; 594 A2d 121 (1991):

Negligent operation of a car is not limited to the negligent manipulation of the gas pedal, steering wheel, or brake pedal, such as involved in speeding, failure to pay attention to what may be in front of the vehicle, failure to apply the brakes, etc. A decision to operate or continue operating the car, when a reasonable person would not do so, clearly can be “negligent operation.” For example, if one decides to operate or to continue operating a motor vehicle when he is dizzy or otherwise ill, he may be guilty of negligent operation. A decision to operate a car or to continue operating a car knowing that brakes are faulty may obviously constitute the “negligent operation” of the vehicle.

The majority’s construction of the word “the” also ignores the mandates of MCL 8.3b; MSA 2.212(2), which states:

Every word importing the singular number only may extend to and embrace the plural number, and every word importing the plural number may be applied and limited to the singular number.

*482In the case at bar, despite the majority’s contention to the contrary, the word “the,” insomuch as it connotes “the singular number,” also “embracejs] the plural number,” meaning more than one.

I detect with increasing frequency a tendency among certain jurists to maintain that a statute is “clear and unambiguous” while adding words to its “plain language” to reach a desired meaning.

One must wonder why the majority resorts to Black’s Law Dictionary (5th ed) to determine what meaning the Legislature placed on the word “the.” For at pages 458-459 the majority states that “[t]he Legislature’s use of the definite article ‘the’ clearly evinces an intent to focus on one cause.” If that were truly the “clear” case, then resort to a dictionary would be unnecessary.

174 Mich 701, 706; 140 NW 532 (1913).

457 Mich 720, 730, n 8; 579 NW2d 347 (1998).

As Dedes notes, this is not a case where the practical effect of a certain statutory provision was difficult to foresee at the time of enactment, making legislative comment unlikely. As proposed and enacted, MCL 691.1407(2); MSA 3.996(107)(2) was intended to limit the liability of lesser government employees in response to this Court’s distinction between ministerial and discretionary government activities in Ross, supra. The new legislation protected employees, eliminated the Ross distinction between ministerial and discretionary activities, extended protection to volunteers, raised the standard from negligence to gross negligence, and specifically defined gross negligence. All these purposes were noted and *486commented on as the bill moved through the legislative process and took its final form. The construction of proximate cause advanced by the defendants and adopted by the majority will enormously limit that liability, much more than the gross negligence standard adopted by the Legislature. Yet, nothing was written about the supposed “plain language” use of “the proximate cause,” further negating any inteipretation that the Legislature decided to modify the common law with respect to governmental employees. It is difficult to imagine that legislators were in such agreement on this matter that they found it not worth their time to discuss it.

458 Mich 476, 480; 581 NW2d 229 (1998).

461 Mich 73; 597 NW2d 517 (1999).

375 Mich 23, 56; 133 NW2d 136 (1965).

260 Mich 322; 244 NW 490 (1932).

461 Mich 1201, 1204, n 4 (1999). Her footnote indicates that Justice Brickley joined the majority’s opinion in cases that overruled precedent. I interpret that as an acknowledgment that Justice Brickley’s overall record demonstrates a proper respect for the doctrine of stare decisis. Likewise, Justice Cavanagh wished to point out that his criticisms of this current majority’s treatment of the doctrine could not fairly include Justice Brickley.

More problematic, in footnote 1 of her concurrence, Justice Corrigan summarizes Justice Brickley’s voting record inaccurately. When referring to Justice Cavanagh’s dissent to the prior order, she claims that Justice Brickley joined the majority opinion in five out of six cases. Her statement is misleading. Justice Brickley joined a majority opinion in McDougall v Schanz/Sobran v McKendrick, 461 Mich 15; 597 NW2d 148 (1999); People v Borchard-Ruhland, 460 Mich 278; 597 NW2d 1 (1999); People v Carines, 460 Mich 750; 597 NW2d 130 (1999). Also, he signed the majority order in McCready v Hoffius, 459 Mich 1235 (1999). He concurred separately in both People v Lukity, 460 Mich 484; 596 NW2d 607 (1999), and Ritchie-Gamester v City of Berkley, supra. Even if Justice Corrigan is not specific with reference to Justice Brickley’s decisions, it is clear that he was part of the majority in four, rather than five, of the aforementioned cases.

Of course, this presumes that the fleeing driver’s vehicle is not hit or otherwise forced off the road or onto another vehicle or object by the pursuing police officer. See discussion in part I.