PER CURIAM
On the way to a house fire, a volunteer firefighter
driving his own vehicle collided with a car driven by the
plaintiff’s decedent. The ensuing litigation presents an
issue regarding which of two statutes should be used to
gauge the defendants’ potential liability. The circuit
court entered judgment for the defendants, but the Court of
Appeals reversed. We reinstate the judgment of the circuit
court.
I
Richard C. Wildfong, Jr., was a volunteer firefighter
for the Fruitport Township Fire Department in Muskegon
County.1 He traveled to fires and other emergencies in his
own pickup truck, on which he had installed red and white
oscillating roof lights and a siren.
Late on a January evening in 1993, Mr. Wildfong was
awakened from sleep by his pager, which notified him of a
reported chimney fire. He dressed and left his home,
driving his pickup.2
As he began traveling toward the fire, Mr. Wildfong was
not using the pickup’s red lights or siren. He testified
that he was not sure whether to go directly to the fire, or
go to the fire station and drive a pumper truck to the
scene.
As Mr. Wildfong was making up his mind, he received a
second page, indicating that the apparent chimney fire was,
instead, an electrical fire in the upstairs of a structure.
Hearing that report, Mr. Wildfong activated his overhead
lights by plugging a cord into the receptacle for the
cigarette lighter. He says he knows the overhead lights
were on because he could see the red reflection against a
white house that he passed as he turned them on.
The plaintiff believes that the overhead lights either
were never activated or were turned on only an instant
before the collision described below.
As Mr. Wildfong was driving east on Heights Ravenna
Road, he approached an establishment called “Punches.” A
white car safely pulled out in front of him. It was
followed by a second car, with which Mr. Wildfong’s truck
collided. The driver and one passenger were killed. Three
other passengers were injured.
The plaintiff is the personal representative of the
estate of the deceased driver, Jamie A. Youngo. In November
1993, she sued Mr. Wildfong, Fruitport Township, and the
Fruitport Township Fire Department. Four other suits were
filed by the passengers or their representatives.
The Muskegon Circuit Court consolidated the five cases
for a trial on liability, reserving the question of damages.
Seeking a preliminary ruling, Fruitport Township and
its fire department argued in circuit court that they were
immune under MCL 691.1407(1); MSA 3.996(107)(1),3 and that
vicarious liability for Mr. Wildfong’s actions could exist
only if he had been grossly negligent, MCL 691.1407(2)(c);
MSA 3.996(107)(2)(c).4 Fruitport acknowledged that a
governmental agency can be found liable for ordinary
negligence in the operation of a government-owned motor
vehicle, MCL 691.1405; MSA 3.996(105), but noted that Mr.
Wildfong was driving his own vehicle. The circuit court
agreed that “[g]ross negligence would bind the Township,”
saying that “[t]he other claims would be dismissed.”
The October 1994 jury trial on liability concluded
three days later, when the jury returned a verdict in which
it found that both Mr. Wildfong and Mr. Youngo were
negligent. However, the jury found that Mr. Wildfong was
not grossly negligent.
A few days after the jury returned its verdict, the
defendants (Mr. Wildfong, the township, and the fire
department) filed a motion for summary disposition, seeking
to employ the jury’s finding of no gross negligence to
establish that all the defendants were immune, and that a
final judgment in their favor could therefore be entered.
Approximately three weeks after that, the plaintiff
filed motions for summary disposition, for new trial, and to
reopen the proofs. The latter motions were based on the
affidavit of a woman who had come forward after trial,
disclosing for the first time that she had witnessed the
accident. After two hearings and a deposition, the circuit
court granted a new trial, again limited to issues of
liability.
The defendants later renewed their motion for summary
disposition, but it was denied by the circuit court
The case was retried in February 1996. This time, a
different verdict form was used, so that gross negligence
was the first question for the jurors to answer. Again,
they found no gross negligence on the part of Mr. Wildfong.
In accordance with the court’s directions, the jury then
stopped without answering the remaining questions regarding
ordinary negligence, proximate cause, or allocation of
fault. The circuit court entered judgment in favor of the
defendants.
The plaintiff appealed, and persuaded the Court of
Appeals to reverse.5 A majority of the panel found the case
to be controlled by Haberl v Rose, 225 Mich App 254; 570
NW2d 664 (1997), which is discussed below. Judge MacKenzie
dissented.
Mr. Wildfong has applied to this Court for leave to
appeal. A separate application has also been filed by
Fruitport Township and its fire department.
II
In Haberl v Rose, a school employee was driving her own
car in connection with her work. She negligently collided
with another vehicle, causing serious injury.
At the time of the accident, Ms. Rose was acting within
the scope of her employment, her employer was engaged in a
government function, and she was not grossly negligent. She
thus appeared to be immune under MCL 691.1407(2); MSA
3.996(107)(2).6
However, the plaintiffs in Haberl asserted that her
ordinary negligence allowed the imposition of liability
under the owner’s civil liability section of the Motor
Vehicle Code. MCL 257.401(1); MSA 9.2101(1). That
provision states that the owner of a vehicle is liable for
injury caused by ordinary negligence in the operation of the
vehicle.7
Thus the issue in Haberl, as in the present case, was
whether the potential liability of the governmental employee
should be evaluated in light of the immunity language of MCL
691.1407; MSA 3.996(107) or of the owner’s civil liability
statute, MCL 257.401(1); MSA 9.2101(1).8
As one can gather from the material outlined above, the
issue arises because of what might appear to be an anomaly:
A person injured by a private citizen driving a privately
owned vehicle generally can seek damages from the driver
under an ordinary negligence standard,9 and can cite the
same standard when seeking damages from the owner under the
owner’s civil liability statute. And, while a person
injured by a government employee driving a government-owned
vehicle must show gross negligence to obtain damages from
the driver,10 the person can seek damages from the owner of
the vehicle under the ordinary negligence standard.11
However, a person injured by a government employee driving
his own privately owned vehicle cannot employ the ordinary
negligence standard against the driver or the owner, since
the driver/owner is the same person and (as a government
employee) is subject to the gross negligence standard.
Faced with this situation, the plaintiffs in Haberl and the
present case argue that the driver/owner ought to be able to
invoke the higher protection of the gross negligence
standard only as driver (the role in which he is a
government employee), not as owner of the private vehicle.12
Accepting that argument, the Haberl majority first
noted that the broad sweep of governmental immunity is
limited by MCL 691.1405; MSA 3.996(105), which applies an
ordinary negligence standard in situations in which harm is
caused by the negligent operation of a government-owned
motor vehicle. The majority in Haberl said that “[t]his
major exception to governmental immunity is consistent with
the policy evident in the civil liability act, which imposes
liability on the owners of privately owned vehicles.” 225
Mich App 259.
The majority then turned to the rules of statutory
construction, saying that the owner’s civil liability
statute was the more specific measure. 225 Mich App 262.
The majority observed that application of its provisions
would avoid the anomalous possibility that ordinary
negligence would be the standard for liability in accidents
involving all governmental and nongovernmental vehicles,
except private vehicles driven on government business. 225
Mich App 263-264.
On those bases, the majority in Haberl vacated the
circuit court’s judgment in favor of the defendant and
remanded the case for entry of a judgment on the jury’s
verdict of $260,000 in favor of the plaintiffs.
Dissenting in Haberl, Judge Saad said that, “[t]hough
the majority’s reasoning has surface appeal, it cannot
withstand closer scrutiny.” 225 Mich App 268. He observed
that the owner’s civil liability statute has been part of
Michigan law in some form since 1909, and he likewise
outlined the nature and history of the statutory provisions
regarding governmental immunity.
Explaining the context in which recent immunity reforms
were enacted, Judge Saad concluded that the Legislature knew
exactly what it was doing, as it provided immunity for
negligent acts of government employees driving their own
vehicles in the course of employment. He said that “the
Legislature made a policy choice with which we may disagree,
but which we are not free to undo.”13 225 Mich App 273.
III
As indicated, the present case was decided on the basis
of Haberl. The Court of Appeals majority wrote:
There is nothing in the facts of this case
which would distinguish it from Haberl, and,
accordingly, on the strength of its authority we
reverse and remand this case for further
proceedings. We do not retain jurisdiction.
The majority did not explain how Fruitport Township or its
fire department could be vicariously liable under the
owner’s civil liability statute.14
Dissenting in the present case, Judge MacKenzie said
that MCL 691.1407(2); MSA 3.996(107)(2) governs individual
immunity for lower-level government employees (including
volunteers), and that this immunity is limited only by the
phrase, “[e]xcept as otherwise provided in this section”
(emphasis supplied). Because the civil liability statute is
outside the immunity section, she found the immunity
provision to be controlling in this context. Implicit in
Judge MacKenzie’s analysis is a determination that the
immunity statute is the more specific measure.
As for the township and the fire department, Judge
MacKenzie said that the owner’s civil liability statute does
not give rise to vicarious liability. Pointing out that the
exception for government-owned vehicles15 does not apply in
this case, she said that the potential liability of the
municipal defendants was controlled by MCL 691.1407(1); MSA
3.996(107)(1).
Judge MacKenzie concluded by pointing out the likely
effect of a judicial decision to apply Haberl in this
context:
A large percentage of firefighters in this
state are either volunteers or on part-time
status. In order to get to the scene of a fire,
these individuals must be on call and must use
their own vehicles equipped for emergency runs.
By holding these firefighters to an ordinary
negligence standard rather than the gross
negligence standard when responding to an
emergency call, and by making them individually
liable, this Court is raising a significant
disincentive to serve as a volunteer firefighter
to the detriment of rural areas and small
communities throughout the state.
IV
It is question of law whether a statute applies, and we
examine questions of law de novo. People v Coutu, 459 Mich
348, 353; ___ NW2d ___ (1999); Bolt v City of Lansing, 459
Mich 152, 158; 587 NW2d 264 (1998); Morley v Automobile Club
of Michigan, 458 Mich 459, 465; 581 NW2d 237 (1998).
We agree with the dissenting opinion of Judge Saad in
Haberl16 and with the above-noted portions of the dissenting
opinion written by Judge MacKenzie in the present case.
The immunity statute is certainly the more specific
measure in this instance. It deals directly with the
potential liability of government employees and volunteers
who are (or reasonably believe themselves to be) acting
within the scope of their authority, on behalf of a
governmental agency that is engaged in a governmental
function. By contrast the owner’s civil liability statute
is a broad measure widely applicable to owners of vehicles.
As Judge Saad explained, the Legislature has formulated
a clear statutory framework for determining the extent of
governmental immunity in a case arising from a motor vehicle
accident. These provisions outline the immunity of
government agencies17 and of individuals,18 as well as the
extent of liability for harm caused by negligent operation
of government-owned vehicles19 or failure to maintain the
roadway.20 It is not for the courts to add or subtract from
the balance struck by citizens of this state, as expressed
by their elected representatives in the Legislature.21
In this case, the circuit court correctly determined
that Mr. Wildfong was immune unless his conduct was grossly
negligent. The jury having found no gross negligence on his
part, we reinstate the judgment of the circuit court in his
favor. There likewise being no statutory basis for imposing
liability on the township or its fire department, we also
reinstate the judgment of the circuit court in favor of the
municipal defendants. The judgment of the Court of Appeals
is accordingly reversed.22 MCR 7.302(F)(1).
Weaver, C.J., and Brickley, Cavanagh, Taylor, Corrigan,
and Young, JJ., concurred.
S T A T E O F M I C H I G A N
SUPREME COURT
MARGARET ELLEN ALEX, personal
representative of the estate of
JAMIE ANDREW YOUNGO, deceased,
Plaintiff-Appellee,
v No. 112041
RICHARD CHARLES WILDFONG, JR.,
Defendant-Appellant,
and
FRUITPORT TOWNSHIP FIRE
DEPARTMENT and FRUITPORT TOWNSHIP,
Defendants.
___________________________________
MARGARET ELLEN ALEX, personal
representative of the estate of
JAMIE ANDREW YOUNGO, deceased,
Plaintiff-Appellee,
v No. 112043
RICHARD CHARLES WILDFONG, JR.,
Defendant,
and
FRUITPORT TOWNSHIP FIRE
DEPARTMENT and FRUITPORT TOWNSHIP,
Defendants-Appellants.
___________________________________
Kelly, J. (dissenting).
I disagree with the majority's conclusion that
defendant Wildfong is not liable as an owner under the owner
liability statute. MCL 257.401(1); MSA 9.2101(1).
It has been suggested that the statute cannot logically
apply to a situation in which the owner of the vehicle is
also the driver of the vehicle. I agree with the Court of
Appeals majority in Haberl v Rose,23 that the plain language
of the statute clearly indicates otherwise. As the Haberl
panel noted:
Although the owner liability statute may have
been enacted to create liability for a non-driving
owner and prior cases have apparently assumed that
limited application, there is no language in the
statute warranting this conclusion2. Indeed, the
beginning of the statute explicitly preserves the
common-law liability available against the owner.
____________________________________________________________
2The dissent assumes for purposes of analysis
that the civil liability statute applies where the
owner and the driver are the same person, a
conclusion we find compelled by the plain language
of the statute. See also Trommater [v Michigan,
112 Mich App 459; 316 NW2d 459 (1982)]. However,
in dicta and in factual situations different from
this one, other writers have assumed that the
legislative intent underlying the statute was to
impose liability on owners for negligent operation
by permissive third-party users only, essentially
a negligent entrustment theory. Moore v Palmer,
350 Mich 363; 86 NW2d 585 (1957); Stapleton v
Independent Brewing Co, 198 Mich 170; 164 NW 520
(1917); [North v] Kolomyjec [199 Mich App 724, 725-
726; 502 NW2d 765 (1993)]. Although the
legislative intent behind the enactment of this
statute may have been to create liability where
none previously existed for a nondriving owner of
a vehicle, the statutory language is not so
limiting. It applies by its own terms to create
owner liability for "any injury occasioned by the
negligent operation of the motor vehicle . . . ."
MCL 257.401(1); MSA 9.2101(1) (emphasis added).
____________________________________________________________
Hence, we conclude that the owner liability
statute applies here even though the owner of the
automobile was also the negligent driver. MCL
257.401(1); MSA 9.2101(1); see also Berry v
Kipf, 160 Mich App 326, 328-329; 407 NW2d 648
(1987). Under common law, of course, an owner of
a motor vehicle does not escape liability simply
because the owner was driving. Also, our Supreme
Court has held that the statute extended and
complemented the common law with regard to
liability. Frazier v Rumisek, 358 Mich 455, 457;
100 NW2d 442 (1960). It would be an anomalous
result indeed if this statute, created to expand a
plaintiff's right of recovery, was employed
instead as a bar to that recovery. This analysis
compels the conclusion that the statute applies to
the fact pattern presented in this case. [Haberl,
supra at 260-261.]
Contrary to the majority's view, the Legislature has
not formulated a clear statutory framework for determining
the extent of governmental immunity in a case arising from a
motor vehicle accident. When enacting new legislation, the
Legislature surely attempts a smooth integration of new law
with the existing statutory framework. However, it cannot
foresee every permutation in the interplay between
separately enacted provisions.
I agree with the Court of Appeals majority in Haberl:
A denial of liability under the circumstances of this case
occasions an anomalous result that frustrates the
Legislature's intent to provide redress for automobile
negligence.
A hypothetical example illustrates this point. Assume,
under the majority's reading of the statutory framework,
that Mr. Wildfong (or Ms. Haberl) had been driving a vehicle
owned by another government employee, rather than his own,
when the accident occurred. The private owner of that
vehicle would be responsible for the driver's mere
negligence under the owner liability statute. However,
Mr. Wildfong is not responsible for the same negligence when
driving his own vehicle. I see no rational basis for the
distinction. Moreover, I decline to draw the distinction
absent a more clear expression by the Legislature that such
was its intention.
Instead, I agree with the Court of Appeals majority in
Haberl and in this case that a finding of liability achieves
the intent and purpose of the owner liability statute.
I disagree with the majority's assertion that the
governmental immunity statute24 is a more specific act than
the owner liability statute. The governmental immunity
statute applies to all types of negligent behavior. The
owner liability statute specifically refers to negligent
operation of a motor vehicle.
I would rule, also, that a finding of liability is in
tune with the purpose of the governmental immunity statute,
providing for governmental liability in negligence cases
involving state-owned vehicles. See Haberl, supra at 262.
The majority's decision frustrates the Legislature's clear
intent to hold automobile owners, both private actors and
government agencies, liable for the negligence of the
drivers of their owned vehicles. Moreover, in the interest
of avoiding liability, it will discourage government
agencies from providing motor vehicles to their employees
for government work.
Perhaps the Legislature should create immunity for a
government employee driving his automobile in the course of
government business. But it has not done so. I decline to
act in its stead. Rather, I would hold that defendant
Wildfong is liable for his negligence under the owner
liability statute.
Alex v Wildfong
Robert J. Riley [2416 Okemos S.E., Grand Rapids, MI
49506] [(616) 452-1441] for plaintiff-appellee.
Cunningham, Dalman, P.C. (by Kenneth B. Breese) [321
Settlers Road, P.O. Box 1767, Holland, MI 49422-1767] [(616)
392-1821]; John A. Lydick, of counsel [577 E. Larned, Suite
210, Detroit, MI 48226] [(313) 961-1525], for defendant-
appellant Wildfong.
Timmer, Jamo & O’Leary (by James S. O’Leary and Kathleen A. Lopilato)
[521 Seymour Avenue, Lansing, MI 48933] [(517) 371-3500] for defendants
Fruitport Township Fire Department and Fruitport Township.
_______________________________
1 Mr. Wildfong described himself as a “part-time
firefighter/EMT” and testified that he is not obliged to respond to
calls. His exact status with the Fruitport Township Fire
Department is unclear from the materials at hand. However, the
immunity statute treats a “volunteer acting on behalf of a
governmental agency” in the same manner that it treats an “employee
of a governmental agency.” MCL 691.1407(2); MSA 3.996(107)(2).
2 Mr. Wildfong is sure that he turned on his headlights. In
her complaint, the plaintiff alleged that he did not.
3
Except as otherwise provided in this act, all
governmental agencies shall be immune from tort liability
in all cases wherein the government agency is engaged in
the exercise or discharge of a governmental function.
Except as otherwise provided in this act, this act shall
not be construed as modifying or restricting the immunity
of the state from tort liability as it existed before
July 1, 1965, which immunity is affirmed. [MCL
691.1407(1); MSA 3.996(107)(1).]
4
Except as otherwise provided in this section, and
without regard to the discretionary or ministerial nature
of the conduct in question, each officer and employee of
a governmental agency, each volunteer acting on behalf of
a governmental agency, and each member of a board,
council, commission, or statutorily created task force of
a governmental agency shall be immune from tort liability
for injuries to persons or damages to property caused by
the officer, employee, or member while in the course of
employment or service or volunteer while acting on behalf
of a governmental agency if all of the following are met:
(a) The officer, employee, member, or volunteer 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 officer’s, employee’s, member’s, or
volunteer’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. [MCL
691.1407(2); MSA 3.996(107)(2).]
5 Unpublished opinion per curiam, issued April 3, 1998 (Docket
No. 194121).
6 See footnote 4.
7
This section shall not be construed to limit the
right of a person to bring a civil action for damages for
injuries to either person or property resulting from a
violation of this act by the owner or operator of a motor
vehicle or his or her agent or servant. The owner of a
motor vehicle is liable for an injury caused by the
negligent operation of the motor vehicle whether the
negligence consists of a violation of a statute of this
state or the ordinary care standard required by common
law. The owner is not liable unless the motor vehicle is
being driven with his or her express or implied consent
or knowledge. It is presumed that the motor vehicle is
being driven with the knowledge and consent of the owner
if it is driven at the time of the injury by his or her
spouse, father, mother, brother, sister, son, daughter,
or other immediate member of the family. [MCL 257.401(1);
MSA 9.2101(1), as amended by 1995 PA 98 (emphasis
supplied).]
At the time of the accident in the present case, the applicable
language was found in MCL 257.401(1); MSA 9.2101(1), as amended by
1988 PA 125. For present purposes, the two versions differ only
stylistically.
8 As a preliminary matter, the Haberl majority held that the
owner’s civil liability statute applies even where the owner and
the driver are the same person. 225 Mich App 260-261.
9 Cf. MCL 500.3101 et seq.; MSA 24.13101 et seq.
10 MCL 691.1407(2); MSA 3.996(107)(2).
11 MCL 691.1405; MSA 3.996(105).
12 Since a private citizen driving his own vehicle is generally
subject to an ordinary negligence standard and is not exposed to
additional liability as owner of the vehicle, the issue whether the
owner’s civil liability statute applies to driver/owners rarely
arises.
13 Judge Saad also took the position that the owner’s civil
liability statute is inapplicable where the owner and the driver
are the same person. 225 Mich App 268-270.
14 Haberl was a suit against an individual government employee.
15 MCL 691.1405; MSA 3.996(105).
16 As it is unnecessary to our decision in this case, however,
we do not decide the applicability of the owner’s civil liability
statute in a situation in which the owner and the driver are the
same person.
17 MCL 691.1407(1); MSA 3.996(107)(1).
18 MCL 691.1407(2); MSA 3.996(107)(2).
19 MCL 691.1405; MSA 3.996(105).
20 MCL 691.1402-691.1404; MSA 3.996(102)-3.996(104).
21 The dissent would apply the civil liability statute, MCL
257.401(1); MSA 9.2101(1), because it believes our conclusion
frustrates the Legislature’s intent to hold automobile owners,
whether private citizens or governmental employees, liable for the
ordinary negligence of drivers. The dissent, however, ignores the
plain language of the more specific statute under these facts,
i.e., the governmental immunity statute, MCL 691.1407(2); MSA
3.996(107)(2). The Legislature specifically provided for the
liability of governmental agencies that own motor vehicles. MCL
691.1405; MSA 3.996(105). The Legislature has not, however,
enacted a similar provision holding governmental employees liable
as owners. The dissent essentially attempts to enact such a
provision.
The plain language of the governmental immunity statute makes
clear that, while governmental agencies are liable as owners for
ordinary negligence, governmental employees are not liable for
ordinary negligence in the operation of their own vehicles. The
statutory language provides no basis for the dissent’s assertion
that the Legislature intended to impose liability in the present
circumstances.
22 In light of our decision, it is unnecessary to discuss the
other issues raised by the defendants.
23 225 Mich App 254; 570 NW2d 664 (1997).
24 MCL 691.1407; MSA 3.996(107).
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