*1 Asch Dedes v DEDES ASCH (Calendar 11). 96420, 8, Argued No. March Docket Nos. 96421. 2, Rehearing 1202. August 1994. denied Decided Dedes, copersonal representa- L. as Michael R. Dedes and Jeanne deceased, Dedes, and as next of Adrian tives of the estate Dedes, minor, brought negligence actions L. a friends Lauren Asch, against Director of Circuit Court Jeanne in the Oakland Schools, Lyon Community Transportation and of the South Shifford, driver, injuries by the a school bus sustained Joan they stop walking when were toward their bus children while plaintiffs alleged by that the location the bus hit a car. The unsafe, designed, stop safer route could have been was a changed the where the children were and that Shifford location court, J., granted Gage, R. the bus. The Hilda to wait for Asch, that, assuming arguendo, ruling summary disposition for grossly negligent, cause was she was not sole she and, Shifford, accident, regarding her ruled that conduct of the The Court of not cause of the accident. was J., P.J., Appeals, Corrigan, Weaver, (Connor, and J. dissent- affirmed, plain language ing), holding of MCL that under the 3.996(107)(2)(c) 691.1407(2)(c); alleged MSA neither defendant’s cause of the chil- could have been 135308). (Docket plaintiffs injuries dren’s Nos. appeal. joined opinion Boyle, In an Chief Justice Justice Supreme Mallett, Cavanagh, and Justices Levin Court held: statute, immunity word in the Use "the” 3.996(107)(2)(c), 691.1407(2)(c); the words before recovery "proximate to be read to limit a case cause” government employee constitutes in which the conduct of a plaintiff person or another also References 2d, School, Liability Municipal, County, and State Tort
Am Jur
546, 571,
78; Negligence
1191.
§§
§§
Comparative Negligence;
Im-
Governmental
ALR
under
See
Index
Privilege.
munity or
accident;
prevent
cause of an
nor
to be
is it
read to
a defendant
claiming comparative negligence
from
as a defense.
"proximate
1.
While use
word "the” before the words
*2
691.1407(2)(c);
3.996(107)(2)(c) ambigu-
cause” in
MSA
is
ous,
Legislature
be
cannot
concluded that
the
intended
contributory negligence
recovery
reestablish
eliminate
and
plaintiff’s
where more than one tortfeasor contributes to a
injury.
plain-meaning analysis
incapable
providing
A
is
of
clear
guidance regarding
meaning
"the,”
legislative
the
of
and the
history
provides
support
of the statute
no
for reestablishment
contributory negligence
of
and in fact
no
establishes that
importance
"proximate
attached to "the” or
was
cause.”
statute,
2.
When read
of
context
the text
its
structure,
purpose, background,
interpretive
and
force
significant
language
the literal
is less
than the force of other
factors.
there
no
Because
evidence that
dramatically
Michigan’s
intended to
rewrite
cau-
common-law
principles
"gross
sation
when it used the word "the” between
cause,”
negligence”
"proximate
interpretation
a literal
rejected.
must be
Reversed and remanded.
Brickley
joined
Riley,
Griffin,
Justice
Justices
dissenting,
phrase
interpretation
proxi-
stated that
"the
proximate
derogation
mate cause” to mean "a
cause”
in clear
plain
meaning.
itsof
and obvious
"The
cause” means
cause,
merely any
sole
a
or
cause.
plain, unambiguous,
subject
and not
to differ-
interpretations,
leaving
judicial
ent
no room for
construction.
long
constitution,
As
as the
did not
violate
legislative
controversies
be
must
resolved
the various demo-
safeguards
provided by
cratic
and checks
the constitution.
(1993)
App
Frank J. Casey, Gemmill, General, D. Assis- Clive Solicitor Charge, McDaniel, Assistant Michael C. tant Attorney General, Division. for Tort Defense (by Bonuc-
Clark, Dennis G. Klein & Beaumont J. Michigan Henry) Defense chi and Walker Counsel, Inc. Trial Labarge, Shifman,
Johnson, Rosati, Galica,
Asel-
(by Christopher
Sugameli
tyne,
J.
Field, P.C.
*3
&
Dalton),
Metropolitan
for
P.
Johnson and Daniel
Legislation
Improved
Joint
School
Association for
Management Trust.
Risk
(by
Tamm,
I.
O’Connor,
P.C.
James
DeGrazia &
McCann-O’Connor), for Michi-
DeGrazia and Julie
Liability
Property
gan Municipal
Pool and
and
Corporation
Bar.
Law
State
Public
Section
(by
Meyers,
L.
Mika,
Steven
Beckett & Jones
Horn),
Dykema
for
A.
Co-Counsel
and William
Jennings
Universities,
Michigan University,
for Central
Dr. Eileen
for
McKanders
Kenneth
Szpara
Michigan University,
for
Kurz for
W. Scott
Eastern
University, Mary
Elizabeth
Ferris State
Michigan
Long (by
University, Butzel,
State
Michigan Technological
Vercruysse)
M.
for
Robert
(by
University, Miller, Canñeld,
Paddock
Jr.),
Michigan
Duerr,
A.
for Northern
Charles
(by
University,
C. Col-
&
William
Currie
Kendall
Boyle, J. Plaintiffs Court of summary judgment granted affirmance of a pursuant motion 2.116(C)(7),dismissing plain- to MCR tiffs’ case for failure to an state actionable claim of gross negligence against defendants Jeanne Asch and Joan Shifford. We reverse remand for proceedings opinion. further consistent with this
i Adrian and Lauren on Dedes lived the north Lyon. They side Ten Mile Road in South trav- eled to Shifford, defendant, school in a bus driven Joan designed which followed a route Transportation Asch, Jeanne Director of of South Lyon Community Schools. The Dedes children’s stop top bus was located on hill near their driveway, they where were to wait until their bus arrived, flashers, its activated and the driver waved the children Road, across Ten Mile a di- highway posted speed fifty vided miles a with limit of
per hour. 2, 1989, On June Adrian and Lauren Dedes walking *4 stop they were toward their bus when disputed girls were hit It a car. whether the stepped into or traffic were behind the white line they the on shoulder when were struck. plaintiffs, parents The the children, the brought negligence against actions the defendants. Dedes Asch op Opinion the Court plaintiffs condi- that children were The assert missing bus, their to anxious about tioned be they they were not wait if told would which were stop. They allege arriving that their in at bus late the location of the bus stop unsafe because was highly required traveled to the children cross major highway, have that route could a safer designed. that Plaintiffs assert defendant also been changed children where the Shifford location top hill to to the bus of the were wait for from gravel adjoining Ten Mile Road. separate defendants, sum- motions for The disposition, argued pursuant mary that 3.996(107)(2)(c), 691.1407(2)(c); they im- MSA were governmental employees. from as With mune regard suit Asch, ruled the trial court defendant negli- assuming arguendo grossly was Asch sole”) (meaning proxi- gent, "the she not "the” was Regarding injury. cause defendant mate Shifford, court ruled that her conduct was the trial of the also not "the” cause accident. plaintiffs appealed. Ap- The A divided Court of panel peals majority The held that under affirmed. 691.1407(2)(c); plain language the 3.996(107)(2)(c), of MCL al- "neither nor Shifford’s Asch’s leged negligence could have been App injuries.” cause of the children’s Mich (1983) (emphasis origi- 385, 391; 502 NW2d nal). disagreed The not have dissent and would literally applied at 395. statute. Id. plaintiffs appealed granted leave to and we (1993). appeal,
ii
employee’s.
. .
.
does not amount
"The.
. conduct
gross negligence that
cause
damage.
injury
As used in this sub-
*5
tort the higher defendants did gross negligence establish as a employee liability, adopted barrier to but a sole cause standard to eliminate em- ployee liability any intervening where there was plaintiffs or concurrent fault or another defendant. plaintiffs respond by observing if the preclude liability intended to even
where the gent, simply shown, because plaintiffs negli- or another defendant was also if it intended to overturn the doctrine of comparative negligence established in Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1970), legislative history would evidence that agree plaintiffs. intent. We with the The statute is ambiguous. any support Absent indication of position, the defendants’ other than the word "the,” we cannot conclude the in- Asch Dedes op Opinion the Court reestablishing step of the drastic tended to take eliminating recovery contributory to the tortfeasor contributes than one when more plaintiff’s injury. strains a construction Such breaking point. meaning” analysis "plain to the *6 A the words of claim that The defendants proximate "gross is the statute, that unambiguous, injury” and are clear cause of the unnecessary interpretation is and construction clarity precluded. therefore, The asserted and dictionary of definition from the this case comes history "the,” common-law as well as the the word phrase, proximate surrounding "the cause” jury. to instruct a when used general statutory is that rule of construction "A phrases in context and shall be read '[w]ords or grammar according and to the rule construed common ” Newaygo usage,’ Sheriff, 420 Duer v (1984), den 471 698 cert 445; 362 NW2d Mich unambig- (1984), 'plain is and "[w]hat 1136 US depends reference.” frame of on one’s uous’ often Ed, Mich 393 Bd Shiffer Gibraltar (1974). that contend The defendants 224 NW2d is while "a” definite article "the” is a because Legislature’s usually indefinite,1 use preceding "proximate cause” demon- "the” word liability only those to limit a clear intent strates circumstances the sole defendant is in which the (5th ed), p Dictionary 1324: See Black’s Law subject spoken particularizes of. An which The. article neces- to without should not he resorted niceties "Grammatical extending liberality sity; length to an unwarrantable it would be but unlet- 'the.’ The most the articles 'a’ and to confound indefinite, refers persons but 'the’ 'a’ is understand tered to object.” a certain Opinion op the Court proximate meaning argument plain cause. This recog- authority buttressed from this Court that nizes a distinction between the use of "a cause” versus "the jury cause” in in- structions. argu- appeal
The source of the surface
involving proximate
ment is an instructional
issue
practicing
acutely
cause, of which the
bar
safely
However,
aware.
every
it cannot be
assumed that
part
legis-
courtroom connotation is a
lawyers
phrase
lative culture. While to
"the
implies
heresy,2
cause”
"sole cause”
it is
incorrect
to conclude that
therefore "the” means
inappropriate
sole. "The” cause
cause "the” is
be-
ambiguous
might
be understood
jury
to mean either "a” cause or the "sole”
proofs
question
Thus,
cause.3
where the
raise a
regarding
party’s negli-
whether more than one
gence
injury,
jury
caused the
and the
is not in-
proxi-
structed that
there can be more than one
*7
proximate
cause,
mate
reference to "the” and "a”
cause is instructional
error. As we observed in
Kirby Larson,
v
been
proximate cause,
to mean a
it is
2 Through
all the diverse theories of
cause runs a
thread;
agree
common
wrongful
almost all
that defendant’s
plaintiff’s
conduct must
injury
be a cause in fact of
before
liability.
there
ordinary,
metaphysical
This notion is not a
one
an
but
inquiry
matter-of-fact
into the existence or nonexis
lay people
tence of a
this is not a
Clearly
causal relation as
would
it.
view
quest
Probably
for a sole cause.
it cannot be said of
any
single
antecedent;
event that
it
usually
has a
causal
there
(2d
many. Harper,
Gray,
ed), 20.2,
are
pp
[4
James &
Torts
89-
§
91.]
Weeder,
6, 10-11;
See also Sedorchuk v
311 Mich
also plated otherwise. cause the Moreover, used to describe where interchange- injury, "a” are "the” and fact of the noted As not mean "sole.” "the” does able and Restatement: author of the the the court question before many cases the In the in fact negligence was the actor’s whether is, had it whether harm —that of the other’s cause was producing it—or whether any effect cause, making testimony other result of some other, that and one or that it must be it clear the harm is effects the combined not due to b, Torts, 2d, comment § both. [Restatement p Emphasis 429. added.] grammatically Finally, it is common both employ usage, "the cause” correct inquiry. Thus, for and effect this cause describe example, jury uses the instruction the standard negligence phrase was of the defendant "that the [injuries/damages] the not cause of precedent plaintiff.” support does 16.02. Our SJI2d jury argument that where need clearly or law cause in fact instructed of "the” cause, the substitution not be the sole "a” is error.4 gross neg- relationship between common-law
ligence a further introduces cause plain-meaning ambiguity ar- that undermines gument. negligence gross Michigan, vehicle was the In contributory to overcome
advanced *8 4 language to and eifect "the” cause itself uses "resulting attach, liability category will in which of cases describe from MSA 691.1405; MCL negligent operation motor vehicle.” ... of a the simply to 3.996(105) of the word one function illustrates liability. relationship in that can result the denote 108 446 Mich 99 Opinion the of Court recovery. Cooley gross negli- Torts, bar to In on gence explained: therefore, "If, neg- the defendant the discovered time, ligence plaintiff the by of the use of care, prevent ordinary injury, did not purpose,
make of such is justly use care for he chargeable with injury, rely reckless and cannot upon plaintiff of the protection. as a may negli- Or it be said that in such a case gence plaintiff put only position of him in a of was, therefore, danger, only the remote cause of injury, subsequently intervening while the negligence of the defendant was the Marquette Co, cause.” v Pere R 174 Mich [Fike (1913), 205; 140 quoting 592 Cooley, NW p Emphasis 674. added.] way, defendant, Put another "where the who ought, by ordinary knows, or care, the exercise of precedent negligence plain- know, subsequent negligence plaintiff tiff, injury,” his does an guilty gross negligence
ishe and is the plaintiff’s injury, regard- cause of the plaintiff’s negligence. less of the v Gibbard Cur- (1923) (em- san, 225 Mich 196 NW 398 phasis original).
Although
validity
"[t]he continued
of this defini
recently questioned tion was
this Court because
contributory negligence
of the abolition of
as an
state,”
affirmative defense in this
Malcolm v East
(1991),5
Detroit,
147;
437
NW2d
referring
City
to Burnett
Adrian,
v
414 Mich
(1982),
n
448; 326 NW2d it was the law i
Michigan
adoption
at
time of
statute.6
this
Michigan’s
gross negligence
Malcolm noted that
definition of
appears to be identical to "the
clear
last
chance doctrine.” Id. at 147.
Jennings
Southwood,
In
(1994),
Therefore, in the context proxi negligence gross relationship and between proxi "the cause, reference the statute’s mate government may that mean not cause” mate proximate cause, employee’s is the sole conduct may Legislature cause. last but proxi negligence "gross is the that intended have injury” of that in cases to mean of the cause mate immunity negligence, subsequent the defendant’s proxi is the the conduct because is not available y7regardless injur plaintiff’s of cause of the mate degree.8 negligence preceding plaintiff’s its or understanding with "the” is inconsistent of This any that means that "the” contention defendants’ negligence liability, plaintiffs irre- defeat will Adding negligence. gross spective of defendants’ negligence gross in defined is not confusion, Instead, the law. at common as it was the statute specific the term a definition created in the statute itself. Gibbard, 14.15(20701) in the discussion seq. like discussion of et Our determining Boroditsch, simply what the
Jennings
aid in
an
liability
government
act
tort
it drafted the
intended when
validity of
of the continued
as an endorsement
and is not meant
law.
Gibbard at common
negligence
does
concurrent
second defendant’s
The issue of a
negligence
the exis
gross
because of
present
tence of
cases
in the old
itself
liability.
joint
several
Fike, supra
this Court noted:
at 205 where
See
(2
court has held
contributed
might
danger in which the
own
averted
negligence
himself
doctrine of
See . . . Donohue
"Counsel
SW
negligence,
have
in such
3 SW
this court.
indulges
been,
injury,
directly
position
848)
was,
discovered
injured party
then
in a criticism
if the
[1886],
injured party
[Emphasis in
[St
cause the
defendant is
Louis,
danger.
in which
the exercise of
I M & S R
may
original.]
Such
injury,
of the cases which
had
defendant in
it was said:
liable,
of a
have been
is the well-established
placed
Co], 91 Mo 357
occurred after
however
defendant,
reasonable
himself
time to have
gross the
placing
by
which
[365]
care
this
his
Wilful, wanton, or reckless misconduct does not rely subsequent negligence justification on the of Michigan’s gross negligence common-law to avoid contributory negligence Wilful, wanton, bar. or in reckless kind, misconduct is different in time. approval Gibbard, In the Court noted with following description of such conduct:
"Although what is really reckless and wanton misconduct gence, spoken gross sometimes of as negli- expression everywhere recognized as unfortunate, inaccurate and because it seems to imply a only difference degree, whereas whole doctrine that contributory negligence is no defense where the injury is the result of reckless- ness and upon wantonness is based theory of a difference in kind. For reason, the same phrase 'reckless and negligence’ wanton has a misleading tendency. One properly charged who is with reck- lessness or simply wantonness is not more careless statutory gross negligence The definition of was novel. At the time enactment, thirty-four of its the Michigan of the employed statutes that term, only 691.1407(2)(c); 3.996(107)(2)(c) inserted its Community EMS, Inc, own definition. 711, See Pavlov v App 195 722, (1992), n listing NW2d 874 employing for a of statutes "gross negligence.” term Burnett, supra (Moody, J., See concurring). at 463-466 11Jennings, supra, discusses the differences between wilful and wanton misconduct. Our mention of those terms in this case is not modify analysis meant to Jennings. alter or Ill 1994] Asch Dedes v op Opinion the Court His negligence. only guilty of who is one than him in the class put as to must be such conduct respect in wrong. only The doer of the wilful with blameworthy than that is less his attitude which that, instead of wrongdoer the intentional another, he is injure wishing to affirmatively is that The difference willing do so. merely it intending that missile casts a him who between it where he him casts who another shall strike another, being it strike will reason to believe has [Gibbard, does so or not.” whether indifferent Atchison, T Co v & S F R 321, supra at quoting 804) (1908)[ (98 Baker, P 189-190 79 Kan development legislative The support immunity the different act tends "gross statutory interpretation time, kind, not original operative negligence.” Sen- section 1985) (introduced provided: October Bill 465 ate (C) negligence does employee’s The officer’s or willful not amount misconduct. wanton *11 recovery suggested provision under this
While gross negligence and wanton or wilful common-law misconduct, on October 465 was amended SB 1985, to state:_
(1957), See in which also Sun Oil Co Justice Talbot Seamon, Smith 349 Mich observed: NW2d 840 reasoning clear: Wanton miscon- cases is behind these ordinary negligence, than different kind of offense duct is a both, the gross. but in though involved Fault even be brutish, callous, quasi-criminal, the fault of the one inattention, care, of frailty of lack the human the other spectrum of hues in the of different These are faults diversion. them. Our Court have treated so the courts human conduct and should do likewise. Co, 417; 152 NW2d Trunk W R LaCroix v Grand See also (1967). 446 Mich Opinion op the Court An officer employee or of a agency shall not be immune from liability tort where the is the gross negligence of the officer employee proximate this injury. cause of an purposes For the section, gross negligence means conduct so wanton or reckless as to demonstrate a lack of concern for whether an injury results. Although present the definition found in the longer statute no contains the word "wanton” and Legisla- has added ture’s the "lack,” "substantial” before rejection of the common-law definition raises possibility kind, difference is one of not of time.13
It remains unclear from the statute how the intended the new definition of to affect its common- companion, proximate law cause. While Prosser and Keeton note that "[s]ome courts have said that [involving in such wanton, cases willful or reckless plaintiff’s 'proxi conduct] the conduct is not the Michigan’s harm,”14 mate cause’ of the common- history regarding relationship law between wilful, proxi wanton, and reckless conduct and mate cause is unclear. The different in kind ration ale based on "the social condemnation attached (5th act, to” the tortious Keeton, Prosser & Torts ed), p long 65,§ 462, has foreclosed a defendant’s ability contributory negligence to raise a defense wilful, to a claim wanton, and reckless miscondu ct.15 13Subsequent negligence may statutory still fall within the defini gross negligence. purpose tion of does not only Our to note that the statute require subsequent negligence. 14They approach: criticize this appears "the causal connection to be
basically any ordinary contributory negligence same as in case. It perhaps comparative fault, is refusing Keeton, more a form of where the court up against greater.” to set the lesser fault Prosser & (5th ed), 65, p Torts 462. § 15Michigan recognized inapplicability has contributory of a *12 years: defense in these cases for over a hundred Dedes v Asch op Opinion the Court context, common-law in the wider
Curiously, examined, interpre- literal defendants’ "the” is when 3.996(107)(2)(c) 691.1407(2)(c); MSA of MCL tation on negligence pleading from prevent might The defense. as an affirmative of others part the abrogation another require "the” would thus word which Michigan, of common law of the current compara- to claim ability recognizes a defendant’s Placek, plaintiff. the the of negligence part on tive supra.
B
ap-
plain-meaning
that
the
concluded
Having
guidance
clear
incapable
providing
of
proach is
691.1407(2)(c); MSA
meaning of MCL
regarding the
of the stat-
3.996(107)(2)(c),
history
to the
we turn
the
support
no
provides
That history
ute.16
intended
the
claim that
defendants’
the
impact
enormous,
unprecedented,
law,
tort
Michigan’s
on
"the” would have
word
was
no importance
and in fact establishes
cause.”
"proximate
"the” or
attached to the word
3.996(107)
691.1407; MSA
of
history
to rem-
a desire
demonstrates
em-
government
vulnerability
the perceived
edy
re-
negligence
elevating
the level
ployees by
to defeat
quired
immunity:_
being guilty
under
of reckless
The defendants
testimony
running
their train
disclosed
circumstances
without
having
lookout,
consequence
keeping
proper
thereof
and in
her,
question
injured
plaintiff,
run over
arise,
plaintiff
contributory negligence
even had the
does not
imposed upon
age
the law would have
at which
been of that
her
Humphreys,
injury.
exercising
duty
care to avoid
[Battishill
due
(1888).]
—the By creating worker —vulnerable. loophole through plaintiffs’ which attorneys slip, can Ross actually subject governmental threatens to units to increased liability, by indemnification of liable employees. time, At the ruling same threatens employees to inhibit lawful duties. in effectively performing their Thus, loop bill would close the protect hole and acted employees these long as they as scope within the of their authority and their actions did not gross amount negligence, and the bill would make it clear that the Ross discre tionary/ministerial 467, longer applied. test no 465- sup [SB Analysis, Section, First Analysis Senate porting argument, 8,p October 1985.][17] While the initial Senate bill did not mention proximate cause, the second Senate bill referred to gross negligence proximate that was "the” cause of injury, bringing the used in it in line with the However, the House version. the bill sum- provided by Legisla- maries tive the Senate and House Analysis they offices differed how referred proximate cause. In "[t]he content of the bill” Analyses section, the First and Second House employee’s bill noted: "[t]he officer’s or gross negligence did not amount proximate injury.” which was the cause of an arguments provision, for the above, as stated do language. not mention the cause Nei- arguments against, ther do the which focus on the gross negligence Analy- standard. The Senate Bill ses, both of which were issued after the Senate bill language appeared Identical Analysis, Analysis in Second Senate Section, p Nearly language appeared 9. Legislative identical in House Section, Analysis Analyses. HB First and Second Dedes v Asch Opinion of the Court proxi- was amended to include the reference to gross negligence, mate and a cause definition of "[c]ontent” observed in the employee section: "[a]n officer or immune, however, would not be where his or her of an was a cause (p injury” Analysis; p 4 in the First 4 in the added.)18 Analysis). (Emphasis Again, Second nei- arguments against ther the in favor of nor the bill mention cause. Analyses
The fact that the Senate Bill attached meaning preceding so little proximate to the word "the” they
cause that substituted the word *14 explanation "a” in their of the section is some Legislature evidence that did not understand or intend the dramatic effect the use of the word might Michigan’s jurisprudence.19 "the” have on sophisticated Indeed, if the had such a grasp of the connotations of "a” and "the” and the consequences employee liability, there is no reason it could not have said "sole” cause. proposed legislation pro- enacted, As and n employees
tected
and eliminated the Ross distinc-
discretionary
tion between ministerial and
activi-
protection
ties,
volunteers,
extended
to
raised the
negligence
gross negligence,
standard from
specifically
to
gross negligence.
pur-
defined
All these
poses were noted and commented on as the bill
took its final
It
form.
defies common sense and the
responsible
authority
exercise of our
to conclude
provided protec-
would have
eliminating liability
tion tantamount
to
without
having commented on it._
Analysis
analyses
Both of the Senate
Section
refer to
original
and the amended Senate bills.
Pollack, using
protest,
right
While Senator
her constitutional
4, 18,
standard,
gross negligence
Const
art
mentioned the
she
§
any significance
did not
requirement.
or
mention
attach
to the
cause
We recovery contributory negligence was ac- bar to mentioning anyone complished in a without Analysis, House or Senate or House Senate gross of a Journal. While the establishment liability discussed, and threshold to was consequence significant, relatively minor it is of compared of common- to the reestablishment when law ture intended Legisla- negligence. contributory Indeed, if the liability claimed for barriers "the,” the of the word the use purposes, practical be re- standard, would for all dundant. complete reimposition significant of a as the
As negligent recovery plaintiff slightly if bar to inconsequential compared relatively is, it is when abrogation unprecedented of the common- to the law rule that proximate "[tjhere may be more than one injury, the mere cause for the same co-operates with the fact that some other cause negligence produce injury of the defendant brought him from does not relieve for which suit Camp liability.” Wilson, 42; 241 (1932). long recognized fundamental NW tenet of tort This reasoning,
law, under the defendants’ a rule that would would be in favor of abolished *15 part tortfeasor, on the of another allow slight, governmental to relieve the no matter how liability. Again, employee as contribu- of all with tory negligence, meant could have modify It inconceiva- the common law. is almost anyone however, ble, that it would do so without noticing. practical in effect of
This is not a case which provision statutory to fore- was difficult a certain making legislative enacted, time it was see at the 691.1407(2); unlikely. MCL comment 3.996(107)(2) liability limit the of was intended to Dedes v Asch Opinion of the Court prox- employees. The construction imate cause advanced the defendants would liability enormously, limit that much more so than it the latter standard. Yet is and not the former that received all of the atten- legislative says very tion. A silent record often meaning statute; a often little about but always, legislative in not this case the silence convincing. suggest protections These observations that allegedly by the on the erected word "the” rest proverbial slender reed. foregoing reasons,
For the we conclude that the plain meaning argument carry day. cannot meaning plain. impor- The tantly, of "the” is not More interpret-
however, illustrates, as this case ing legislation practical problem is a rather than simply a dialectic exercise. As Justice Felix Frank- aptly furter observed:
"The intrinsic difficulties of and the emergence after enactment of situations not antici- pated by gifted legislative imagination, the most ambiguities reveal doubts and in statutes that compel judicial process construction. The of con- struction, therefore, logic not an exercise reasoning dialectic: The aids of formal are not irrelevant; purpose meaning, every the that end alone. To problem may they simply inadequate. be being of construction ascertainment brought must be devoted to consideration bear problem
solution of speak practical as a indulge is not to a fashion in words. It that, Not, something must be else. for in- stance, opportunity judge an for a to use words as 'empty pour anything vessels into which he can he notions, caprices, will’—his fixed even statesman- Nor, particular policy. like beliefs other on the hand, process observed is the a ritual be profes- by unimaginative adherence to well-worn *16 118 446 Mich 99 Opinion of the Court Kain, phrases.” v 440 Mich sional 398, [LaGuire (1992), quoting n Frank- NW2d statutes, furter, reading on the Some reñections (1947).] 47 Col L R III end, In in the context of the text when read background, purpose, statute, and struc its interpretive ture, force of the we conclude that significant literal is less than the force of agreed other factors. As six members of this Court in In Question, re Certified (1989): NW2d 660 " particular inquiry Ultimately, is not '[t]he what they may comprehend, is the abstract force of words or what in what sense were but they intended to be understood or what under- standing they convey particular do used in the as ” act.’ being There no evidence that Michigan’s dramatically intended to rewrite com- principles mon-law causation when it used the "gross negligence” "proxi- word "the” between accomplished cause,” mate which a result no matter way "the,” article, as a definite inter- preted reject statute, the context of we a interpretation. literal intended to employee liability limit to those situations stantially which the conduct at issue was sub- negligent.
more than That how we interpret "prox- the statute. The word "the” before recovery limit if imate cause” is not to be read to plaintiff or another is also a cause prevent accident. It is also not to be read to claiming comparative negligence defendant from as a defense. Dedes Asch Dissenting Opinion Riley, J. *17 Appeals
We reverse the decision of the Court of and remand for further consideration consistent opinion. with this Mallett, JJ.,
Cavanagh, C.J., and Levin and Boyle, concurred with J.
Riley, ig- (dissenting). majority J. Because 691.1407(2); MSA plain meaning nores the MCL 3.996(107)(2) immu- by eradicating governmental for state who were not the sole nity employees of an I dissent. injury, respectfully cause
i 3.996(107)(2) 691.1407(2); mandates pertinent part: employee governmental agency . . . of a [E]ach liability inju-
. . . shall be immune from tort persons damages property ries to the . . . employment or caused .
employee . . while in the course of acting gov- . . . of a while on behalf following agency ernmental if all of the are met: (a) acting . . . ... or reason- employee The is acting scope ably believes he or she is within authority. of his or her (b) governmental agency engaged in the The discharge
exercise or of a function. (c) employee’s . . . . . . conduct does not amount that is the injury damage. cause of the As used this subdivision, "gross negligence” means conduct so reckless as to demonstrate a substantial lack of [Emphasis injury concern for whether an results. supplied.]
"
statutory
'The cardinal
rule of
construction
give
to ascertain and
effect to the intention of
”
legislature.’
Lansing
Lansing Twp,
v
City
Mich
Dissenting Opinion by Riley, J.
(1959), quoting
641, 648;
Furthermore,
to use
subject
judicial interpreta-
words that have been
they
tion in the sense in which
have been inter-
2.212(1).
preted.
Kirkley
8.3a;
See also
v
Baking Co,
307, 316;
General
217 Mich
186 NW
(1922). If, however,
"the literal construction of
produce
a statute . . . would
an absurd and un-
just
may
result” the Court
deviate from such an
interpretation
"purposes
to conform with the
policies
question.”
Clements,
of the act in
Salas v
(1976).
103, 109;
399
These rules of
construction are
cially appropriate
in the instant
case because
Michigan strictly
imposing
construes statutes
lia-
bility
derogation
on the state in
of the common-
sovereign immunity.
e.g.,
See,
law rule of
Detroit v
Dedes v Asch
Opinion
Dissenting
Riley, J.
(1881);
263, 265;
ii interpretation case is the At issue the instant majority phrase proximate The "the cause.” of the cause” "the finds that says. majority holds not what it The does that "the mean proxi- truly means "a cause” phrase interpretation mate cause.” This phrase’s plain derogation and obvi- in clear (5th ed), p Dictionary meaning. Black’s Law ous instance, "[a]n "the” as article defines spoken particularizes subject of.” which dictionary continues: resorted to "Grammatical niceties should be extending necessity; be liber-
without but would length confound the ality to an unwarrantable persons unlettered articles 'a’ and 'the.’ The most understand that a certain indefinite, 'the’ refers to 'a’ is but object.” "the sole
Thus, "the cause” means *19 proxi- proximate merely "any or a cause” and not refusing majority, Nevertheless, mate cause.” persons, join unlettered reaches be- the most language yond the statute to find a the clear 1 action, recognized legislative past repeatedly that This Court has immunity present, "evidences a on the issue of private legislative judgment public and tortfeasors should clear that (On Rehearing), differently.” Ross v Consumers Power Co be treated (1985); Dep’t 641 Wade v 420 Mich 363 NW2d see also (1992). Corrections, 158, 170; 483 26 439 Mich NW2d 122 446 Mich Dissenting Opinion Riley, J. metaphysical meaning simple hidden and of this phrase. meaning, majority To defeat this clear inconclusively delves into the common, law and legislative legislative enactments, as well as silent history. language plain, unambiguous
Yet, the "is subject interpretation by to different 2 reason- clear, definite, able minds. It and would be easily understood even those not trained in the law. statute, The therefore, this leaves judicial City Lansing, no room for construction.” supra interpretation at 649. Nor does this lead to historically an all, "absurd” result. After the state liability, immunized itself from all tort that permit liability only would choose to absurd, under strict circumstances is not but sim- ply many one of solutions to a difficult and com- plex policy issue. only majority ignore
Not does the the obvious meaning interpretation phrase, ignores previous it also our language.
of the exact The distinc- proximate proxi- tion between "the mate cause” was well cause” and "a
recognized Michigan
at
legislation
the time of the enactment of the
at
long interpreted
Indeed,
issue.
this Court has
phrase
proximate
"the
cause” as one that
is "tan-
plaintiff
tamount
that,
to an instruction
before
neg-
recover,
could
he must show that defendant’s
ligence
proximate
was 'the sole’
cause of the acci-
dent.”
Weeder,
Sedorchuk
v
10-11;
Mich
(1945) (rejecting
charge
NW2d 397
such a
in a
precluded
traditional
suit because it
possibility
might
there
be more than one
cause).2
itself has man-
Yonker,
Schattilly
660, 670;
See also
v
If the acted failing adequately merits, debate its statute or judiciary may not act to save long they folly. its do not violate the from As as legislative constitution, are to be controversies safeguards resolved and checks democratic various box,3 ballot initia- the constitution: read, phrase 'a real should have "the cause” erroneous because "[t]he Arnold, 594, ”); Barringer 358 599- real cause of the accident’ v Mich (1960) 600; (finding charge 101 that a defendant must be NW2d 365 erroneous); 585, 605; Larson, proximate Kirby 400 "the cause” Mich (1977) (holding that 256 NW2d must be that proximate that an instruction the defendant 400 proximate cause” was "tantamount an instruction "the plaintiff is the sole cannot recover unless defendant’s accident, interpretation completely ignoring of an an cause causes”); may possibility Moerman v that there be two Comm, App 829 129 341 NW2d Kalamazoo Co Rd (1983) (noting "the distinction "a cause” and between cause”). Comm, Attorney 184 v Kent Co Rd Cf. General (1990) 600.1615; (finding App 525, 11 Mich MSA mental unit 459 NW2d county govern- 27A.1615, which mandates that the home of a venue, proper proper county” provides "the for for one venue). county for ("Laws provide enacted to Const art shall be § 446 Mich Dissenting Opinion by Riley, J. five, referendum,5 or constitutional amendment.6 majority, denigrates however, stifles and these processes by reaching beyond *21 plain language crafting of the act and a new statute reflective of its sensibilities. Because this is not our role in the respectfully order, constitutional I dissent. Brickley JJ., Griffin, concurred with Riley, J. recall except judges of all record”); elective officers 4, of courts of art (senators every years); 4, § are to be elected (representa- four art 3§ every (the years); 5, tives are to be elected two art 21§ Governor is to every years). be elected four 1963, 2, ("The Const people art 9§ reserve to themselves the power propose laws, reject laws and to enact and called the initiative”). ("The people Id. reserve power . . . approve themselves reject referendum.”) legislature, laws enacted called the Const (outlining art 1-3 §§ three methods to amend the constitution).
state