*1
JENNINGS SOUTHWOOD
7, 1992,
Rapids.
at Grand
Docket No. 119614. Submitted October
16, 1993, at 9:05 a.m. .
Decided March
Cynthia
Jennings,
of the estate of
K.
Dean S.
as conservator
Rasmussen,
incapacitated person, brought
an action
an
Southwood,
against
Boyd,
Bill
Berrien Circuit Court
Richard J.
Jr.,
Daniels,
Township
Township, and Lake
Ambu-
Dan
Lake
Rescue, seeking damages resulting from the failure
lance and
emergency
personnel
transport Cynthia
medical
to
to a
hospital
responding
experiencing
after
to a call
she
day
Cynthia has remained in a coma since the
diabetic seizure.
plaintiffs pleadings
of the incident. The
asserted
gross negligence, thereby
sub-
defendants’ actions amounted
excep-
jecting
liability pursuant
them to
to the
emergency
immunity afforded under the
medical
tion to the
however,
present any evi-
act. The
did not
services
part
Cynthia or her
dence of
occurring
alleged negligence, but
mother
before the defendants’
argued
sufficiently reckless
that the defendants’ conduct was so
as to demonstrate a substantial lack of concern for whether
court,
Hammond, J.,
injury might
T.
have resulted. The
John
jury’s
judgments for the defendants consistent with the
entered
appealed.
The
verdict.
Appeals
The Court of
held:
attempting
concept
1. The court erred in
to illustrate the
jury by citing analogous examples
to the
error, however,
require
does not
criminal misconduct. The
with sub-
reversal because the failure to reverse is consistent
stantial
immunity
defendants
2. To avoid the
afforded the individual
act,
pursuant
under the
333.20737;
gross negligence exception of the
14.15(20965),
14.15(20737),
plain-
now MCL
References
2d,
716-819; Hospitals
Asylums
Appeal
and
Am Jur
And Error §§
15; Negligence 25.§
§
hospi-
Liability
injury
allegedly
by actitivies of
for
or death
caused
team.” 64 ALR4th 1200.
tal "rescue
App 198 prove
required
their
tiff was
Cynt-
on
occurred after some
her mother.
hia or
disposition
granting summary
in favor
3. The court erred
*2
concluding
incorrectly
municipal
after
of the
defendants
vicariously
they
for the
could not be held
liable
required,
emergency personnel.
is not
of the
Reversal
however,
gross negligence
as a matter
because there was no
result,
therefore,
law, and,
right
court reached the
albeit
the
wrong
for the
reason.
Affirmed.
J.,
only,
concurring
the
Neff,
in the result
stated that
precedent
should resolve the issue whether
gross negligence
negligence requirement for
survived
a claim
Sterling
adoption
comparative negligence in Placek v
(1979);
neligence
Heights,
Governmental Medical Personnel Negligence. Gross immunity emergency medical To avoid the individual afforded personnel plaintiff under the a the defendant’s act or omission amounted must establish that misconduct; or wilful to establish negligence, prove that the must defen- after on dant’s occurred some (MCL 333.20737; 14.15[20737], 14.15[20965]). now Burhans, T. John plaintiff. for the Cummings, McClorey, Acho, Davis & P.C. (by Howe), L. Marcia Southwood, for Richard J. Bill Jr., Boyd, and Dan Daniels. Opinion op the Court P.J.,
Before: Griffin, Corrigan, and Neff and JJ. involving In this lawsuit issues of Per Curiam.
governmental immunity, plaintiff appeals as of right judgments entered favor of defendants. affirm. We
This case arose as a result of defendants’ failure transport thirteen-year-old Cynthia K. Rasmus- to sen to wood, gency hospital.
a Defendants Richard J. South- Boyd, Jr., emer- Bill and Dan Daniels are personnel on medical who November experi- responded Cynthia to a call that encing a seizure. At trial there was con- diabetic flicting regarding testimony whether these defen- Cynthia’s dants or sion undisputed, mother made the ultimate deci- transport Cynthia hospital. not to It is Cynthia
however, that in a has been day coma since the of the incident. To
Plaintiff raises two issues for our review. *3 properly appeal, necessary it to resolve this abrogate plaintiffs first. review defendants’ individual second issue To immunity under the emer- gency plaintiff medical services act was (emsa), amounting required to establish act or omission "gross negligence to or wilful misconduct.” MCL 14.15(20737), 333.20737; now see 14.15(20965). did not Plaintiff excep- plead Rather, misconduct. wilful plaintiff immunity asserted was tion to negligence. appeal, plaintiff argues for On that was error attempt concept trial court to to illustrate the citing analogous jury by of Although examples of criminal misconduct. we are regard, persuaded in that the trial court erred this persuaded plaintiff to are not is entitled we reversal. panel recently ob-
As another
this Court
App 198 Opinion op the Court
proven
have
served,
negligence law
aspects few
this state than
to the courts of
frustrating
more
"gross negligence.”
of the term
the construction
Service,
Medical
Emergency
Community
Pavlov v
Inc,
711, 718;
(b) Cynthia
suffering
K. Rasmussen was
from
activity.
seizure
(c) Cynthia
exhibiting
K. Rasmussen was
vital
signs
hypoglycemia.
indicative of
*4
(d)
appropriate
Defendants
failed to consult an
physician pursuant
protocol
licensed
to the
Pavlov,
720,
supra, p
controlling prece
As noted in
Abraham is
1990-6,
under
No.
20. That defendants were regard to the care and treatment ren- plaintiff, Cynthia dered to K. Rasmussen on No- approximately vember spite Cynthia 1986 at 12:30 a.m. de- prior knowledge defendants’ K. Rasmussen’s diabetic condition and the upon symptoms exhibited her examination did containing glucose not administer an iv solution offset the dangerous glucose extremely levels of plaintiff, Cynthia K. Rasmussen’s blood. Similarly, appeal, plaintiff his brief on does not direct this Court to any record evidence of precedent negligence. argues Plaintiff instead that there was that defendants’ conduct testimony reckless so as to sufficiently demonstrate sub- stantial lack of concern for whether an injury above, however, might result. As noted not this is appropriate for avoiding immunity test under the emsa.
It is well settled that instructional error compels reversal where the failure to do so would be Reisman v inconsistent with substantial Univ, Regents State Wayne injustice Such is not in this present case for the reason that prove gross negligence has failed to or as Gibbard, supra. defined by plaintiff’s view of our resolution second issue, plaintiff’s merits only cursory first issue *5 App
718
713
198 Mich
by Neff, J.
Concurrence
the trial court
Plaintiff contends
discussion.
disposition
summary
granting
in favor
in
erred
Township
municipal
and
defendants, Lake
agree,
Township
Rescue. We
Ambulance
Lake
required.
again
reversal
is not
conclude that
but
Supreme
of the
the recent decision
Under
132, 147-148;
Detroit, 437 Mich
Malcolm v East
(1991),
conclusion
the trial court’s
Affirmed. only. (concurring). I concur in the result J.
Neff,
urge
separately
Court to
I
our
write
resolve the issue whether
requirement
claim survived
of a
Michigan
comparative negli-
adoption Sterling Heights,
638;
in Placek v
A
of this Court
requirement
should con-
the
tinue to be
applied.
Community
Emer-
Pavlov v
gency
Service, Inc,
711, 718;
Medical
the trial
a case
which
disposition
granted summary
to the defen-
court
dants on the basis of
emergency
immunity under the former
333.20701 et
14.15(20701)
opin-
seq.;
seq.,
majority
et
by Neff,
J.
context,
ion noted
in its historical
the con-
cept
"gross negligence”
plain-
was intended as a
tiffs doctrine to be used to avoid the harsh bar of
contributory negligence. The Pavlov
set
majority
forth the
definition of
from Gib-
position danger and was therefore the remote cause of injury, the while the subsequently intervening negligence of the defendant was the proximate tions [Pavlov, supra, pp 718-719; cause.” cita- omitted, emphasis original.] The Pavlov also majority stated: unaltered,
The Gibbard definition has remained
despite
negligence
638;
adoption
Michigan
comparative
(Placek
Sterling Heights,
405 Mich
[1979])
720 by Neff, J. negligence. the Gibbard/Burnett further 720. The Pavlov majority Pavlov, supra, p stated: requires plainly law [C]ase claim, if the correctly must allege properly "In order to be addressed. plead defendants’ negligence, plaintiffs must Detroit, 181 Mallory v subsequent negligence.” (1989), 121, 125; another 449 NW2d App 14.15(20737). construing MSÁ case Detroit, East in Malcolm v panel The App applied the NW2d gross negligence claim to be same rule: "[F]or neg- allege that the defendant’s it must actionable subsequent to some ligent conduct occurred gent conduct plaintiff.” The Malcolm decision on reversed the address the definition grounds, but did not other "gross failed to negligence” because 132, 147-148; 468 cross-appeal.
raise on Jackson, See also Abraham [v (1991)]. 473 NW2d [Pavlov, supra, p 720.] *7 that the trial The Pavlov concluded majority plaintiff’s gross the correctly court dismissed request plaintiff’s and declined the claim set gross negligence it the definition of ignore that Malcolm, Mallory, and Abraham and in- in out 691.1407(2) found in MCL apply stead the standard 3.996(107)(2)(c), that (c); provides which MSA as means "conduct so reckless "gross negligence” lack of concern for to demonstrate a substantial Pavlov, supra, pp 720- injury results.” whether 721. view, require- negligence my makes no simply
ment of a claim I agree context. comparative sense in a Kelly’s J. Judge with Michael wholeheartedly 721 by Neff, J. concurring opinion in Pavlov in the context service, medical emergency only gross any makes sense is that 3.996(107X2) 691.1407(2)(c); provided by MCL Kelly (c). Pavlov, 723. supra, p Judge stated: opt gross I negligence [pro- for that definition of (107X2) 691.1407(2)(c); vided for in MCL MSA 3.996 (c)] because that is the definition that makes emergency sense To use a tempt the context of medical service. term, fashionable is ludicrous to at- portray suffering human and trauma by inflicted negligence the forces of society nature or as
in order to establish
as
by
sig-
defined
naled
case law. The
Court has
aright
its intention to set
this scheme
Adrian,
City
448;
Burnette
v
414 Mich
326
[sic]
(1982),
Detroit,
NW2d
Mich
and Malcolm v East
132;
(1991),
If I were not bound stare decisis and by Admin- 1990-6, istrative lxxxiv, Order No. as by 1991-11, extended Administrative Order No. cxliv, as extended Administrative 1992-8, lii, Order No. I would find that properly pleaded the existence negligence, the trial court’s instructional er- harmless, ror was not and that our failure reverse this case would be incon- *8 App 198 by Neff, J. reverse I would substantial with
sistent jury remand verdict and entered I new trial. believe court for a to the trial this case developed fully factual case, its this with Supreme proper our for record, vehicle is dispense outdated with the obsolete Court in Gibbard. set forth definition subsequent or the notion of I note that also has definition been under the Gibbard chance” doctrine. "last clear to as the referred supra, pp (Blair Moody, Jr., J., Burnett, 461-462 pp concurring); supra, 319, 322. In Pe Gibbard, Co, v Grand Trunk W R trove Supreme determined Court our NW2d compara adoption light of this state’s negligence, clear on the "last an instruction tive holding, error. In so doctrine constituted chance” adopted Supreme as its own the reason Court Appeals ing v Grand Callesen of the Court App 252, 259-263; 437 Co, 175 Mich Trunk W R Shepherd Judge Callesen, adopt the last clear "We the view wrote: adop abolished with doctrine has been chance negligence system pure comparative tion of a Michigan.” p clear Id., 261. The demise of the last signals per and Petrove doctrine Caliesen chance necessary definition of demise of the Gibbard negligence. that our I is time believe dispenses formally the Gib gross negligence, in es which bard way referring merely a different sence Only then will clear chance” doctrine. "last replaced vestiges contributory be last comparative negligence pure by the form of provides adopted noted, this case in Placek. As appropriate which to do so. vehicle with