Omelenchuk v. City of Warren

Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh

Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

____________________________________________________________________________________________________________________________

FILED JULY 9, 2002

JEANNE and KRISTIN OMELENCHUK,

Co-Personal Representatives of

the Estate of George Omelenchuk,

Plaintiffs-Appellees,

v No. 117252

THE CITY OF WARREN, and the

WARREN FIRE DEPARTMENT,

Defendants-Appellants.

___________________________________

BEFORE THE ENTIRE BENCH

CAVANAGH, J.

Plaintiffs allege that their decedent died as the result

of gross negligence by employees of defendant, the city of

Warren. The circuit court granted summary disposition on the

basis of governmental immunity. MCR 2.116(C)(7). The Court

of Appeals reversed, but this Court reinstates the judgment of

the circuit court because the controlling statutes plainly

provide immunity to defendant, the city of Warren.

Two years ago, when this case was before us in connection

with a separate issue, we stated the facts. Omelenchuk v City

of Warren, 461 Mich 567, 568-570; 609 NW2d 177 (2000).

On February 13, 1994, a man named George

Omelenchuk suffered a heart attack at work.[1] The

person who found him lying on the floor called the

Warren Fire Department, which sent two trucks.

Emergency personnel at the scene included two

firefighters, three paramedics, and an emergency

medical technician.

Resuscitation efforts included insertion of an

endotracheal tube. The defendants say that all

three paramedics checked to make sure the tube was

properly placed. However, when Mr. Omelenchuk

arrived at the hospital, the tube was found to be

in his esophagus, rather than his trachea.

Mr. Omelenchuk was transported to a hospital

that was located across the street from his place

of business. In the emergency room, further

efforts were made to save his life. However, these

were unsuccessful, and he was declared dead.

The day after Mr. Omelenchuk died, plaintiffs

Jeanne Omelenchuk and Kristin Omelenchuk were named

co-personal representatives of the estate.[2]

* * *

1
In the earlier appeal, as now, we were examining an

untried case. As we did two years ago, we take the facts as

presented in plaintiffs’ complaint, though we have also

examined other pleadings in the record for the purpose of

providing a factual narrative.

2
As we noted in our first opinion, “[t]he plaintiffs’

complaint identifies Jeanne Omelenchuk as the decedent’s

widow. However, the defendants dispute that assertion on the

basis of a 1992 judgment of divorce. Kristin Omelenchuk is

the daughter of George and Jeanne Omelenchuk.” [461 Mich

569.]

[T]he plaintiffs filed suit against the city

of Warren and the Warren Fire Department on

July 19, 1996.

In March 1997, the defendants moved for

summary disposition. MCR 2.116(C)(7). The motion

listed several grounds, including governmental

immunity and the statute of limitations.

At the motion hearing, defense counsel argued

that the defendants were immune because there was

no showing that the emergency personnel had been

grossly negligent and because the city could not be

held vicariously liable.[3] In presenting these

arguments, counsel cited MCL 333.20965 and

691.1407. Without explaining the precise statutory

basis of its ruling, the circuit court granted

summary disposition “[o]n the basis of governmental

immunity.”

The plaintiffs appealed. The Court of Appeals

affirmed,[4] but not on the basis of immunity.

Instead, the Court concluded that the plaintiffs’

complaint had not been timely filed.

We vacated the judgment of the Court of Appeals, finding

that plaintiffs had timely filed their complaint. We also

remanded the case to the Court of Appeals for consideration of

the immunity issue, which had formed the basis of the circuit

court’s decision to grant summary disposition. 461 Mich 571

577. On remand, the Court of Appeals reversed the judgment of

the circuit court because “defendants failed to produce any

3
It is agreed that the fire department is not a separate

entity from which plaintiffs can recover. Any recovery would

be from the city of Warren.

4
Unpublished opinion per curiam, issued April 6, 1999

(Docket No. 204098).

documentary evidence to establish that the conduct of the

responding paramedics did not constitute gross negligence.”

Slip op at 1.5

We granted defendants’ application for leave to appeal.

We review questions of statutory interpretation de novo.

Cardinal Mooney High Sch v Mich High Sch Athletic Ass’n, 437

Mich 75, 80; 467 NW2d 21 (1991).

III

The issue presented in this case is one of statutory

interpretation. Therefore, we must apply familiar statutory

interpretation principles that were recently restated in

Wickens v Oakwood Healthcare System, 465 Mich 53, 60; 631 NW2d

686 (2001):

The paramount rule of statutory interpretation

is that we are to effect the intent of the

Legislature. Tryc v Mich Veterans’ Facility, 451

Mich 129, 135; 545 NW2d 642 (1996). To do so, we

begin with the statute’s language. If the

statute’s language is clear and unambiguous, we

assume that the Legislature intended its plain

meaning, and we enforce the statute as written.

People v Stone, 463 Mich 558, 562; 621 NW2d 702

(2001). In reviewing the statute’s language, every

word should be given meaning, and we should avoid a

construction that would render any part of the

statute surplusage or nugatory. Altman v Meridian

Twp, 439 Mich 623, 635; 487 NW2d 155 (1992).

5
Unpublished memorandum opinion, issued June 23, 2000

(Docket No. 204098).

In this case, a plain reading of the emergency medical

services act (EMSA), MCL 333.20965, requires a conclusion that

defendant, the city of Warren, is entitled to a grant of

summary disposition on the basis of governmental immunity.

The first subsection of the EMSA, MCL 333.20965(1)(f),

provides that an “authoritative governmental unit,” in this

case defendant, the city of Warren, is immune from suit on the

basis of the acts of its emergency medical services workers in

treating a patient “[u]nless the act or omission is the result

of gross negligence or wilful misconduct . . . .”6 Stated

affirmatively, this means that the city can be sued under this

provision if the plaintiff can prove the city’s emergency

medical workers were grossly negligent in treating a patient.

Yet, this ability to sue is subsequently narrowed by MCL

333.20965(4). This section of the statute states:

Subsections (1) and (3) do not limit immunity

from liability otherwise provided by law for any of

the persons listed in subsections (1) and (3).

Because MCL 691.1407(1), which is part of the act commonly

described as the governmental tort liability act (GTLA),

provides that a governmental entity, including of course

defendant, the city of Warren, is “immune from tort liability

if the governmental agency is engaged in the exercise or

6
That is the language of 1990 PA 179 (in effect at the

time of these events). The same phrase is found in 1997 PA

78, 1999 PA 199, and 2000 PA 375.

discharge of a governmental function,”7 MCL 333.20965(4) means

that the city of Warren is immune in the discharge of a

governmental function.8

Notwithstanding the clarity that this analysis of the

statute yields about its meaning, plaintiffs effectively ask

us to depart from applying the plain language of the statute

on the ground that the Legislature’s inclusion of any

governmental entity by use of the phrase an “authoritative

governmental unit” in MCL 333.20965(1) is rendered pointless

if MCL 333.20965(4) means that such a governmental entity will

always be immune from suit under the GTLA anyway. Thus, they

argue, to avoid making the statute a futile exercise, or

7
That is the current language of the statute, as enacted

in 1999 PA 241 and 2000 PA 318. Throughout this opinion, we

will discuss the case in terms of the current statutory

language. The version enacted in 1986 PA 175 was in effect at

the time of these events; it and 1996 PA 143 include a

stylistic difference that does not affect the present issue.

8
While the plain language of the statute is dispositive,

we note that the history underlying the adoption of MCL

333.20965(4) supports the conclusion that it was adopted by

the Legislature to make clear that MCL 333.20965 does not take

away any immunity enjoyed by a governmental entity under the

GTLA. In construing a predecessor version of the EMSA that

did not include language like that of MCL 333.20965(4), this

Court in Malcolm v East Detroit, 437 Mich 132; 468 NW2d 479

(1991), affirmed the decision of the Court of Appeals in that

case that the prior version of the EMSA created an exception

to governmental immunity in cases of gross negligence or

wilful misconduct in the provision of emergency medical

services.

nullity, we should ignore MCL 333.20965(4) so as to leave MCL

333.20965(1) with meaning. In other words, plaintiffs would

have us hold that an authoritative governmental unit, such as

defendant, the city of Warren, can be sued under the EMSA in

cases of gross negligence by its emergency medical services

workers, notwithstanding the immunity shield set forward in

the same statute.

We disagree that such an approach to the statute is

proper. While plaintiffs are correct to the extent that we

should strive to prevent any part of a statute from being a

nullity, a thorough review of the statute at issue leads to

the conclusion that the reading occasioned by the plain

meaning analysis does not produce a nullity and, thus, this

principle is not implicated in this case. No portion of the

EMSA need be ignored to give the entire legislative enactment

a coherent meaning.

As we noted in Malcolm at 141, n 9, the Legislature added

language to the EMSA substantially the same as the present MCL

333.20965(4) in providing that the EMSA did not limit

liability otherwise provided by law, shortly after the Court

of Appeals issued its opinion in Malcolm. Clearly, the

purpose of adding this language was to make clear that the

EMSA did not remove the immunity of a governmental entity

under the GTLA.

When read carefully, it is apparent that immunity under

the GTLA for municipalities or other governmental entities is

only given if they are engaged “in the exercise or discharge

of a governmental function.” MCL 691.1407(1). Implicit then,

and later made explicit in MCL 691.1413, is that the GTLA does

not give immunity if the governmental function is proprietary.

Thus, to particularize this principle, if a governmental

agency provides emergency medical services as part of its

governmental functions, it has immunity, but, if it does so as

part of a proprietary function, it does not. Thus, when one

understands that this act outlines with precision when suit

can be brought against governments providing emergency medical

services, it is clear that there is no nullity effected in the

Legislature’s handling of this issue. This approach brings

harmony to both MCL 333.20965(1) and (4), as well as the GTLA,

MCL 691.1407(1), and makes clear that they are not in

conflict.

In the present case, it is beyond reasonable dispute, and

thus we take judicial notice, that the relevant activity of

the city’s fire department was part of its discharge of its

governmental functions, and not part of any proprietary

function. Accordingly, the city is immune from suit.

The plain language of MCL 333.20965(4) compels the

conclusion that defendant is entitled to the governmental

immunity granted in MCL 691.1407(1). Accordingly, we reverse

the judgment of the Court of Appeals and reinstate the

judgment of the circuit court, MCR 7.302(F)(1).

CORRIGAN , C.J., and WEAVER , KELLY , TAYLOR , YOUNG , and MARKMAN ,

JJ., concurred with CAVANAGH , J.