McCaw v. T & L Operations, Inc.

584 N.W.2d 363 (1998) 230 Mich. App. 413 Daniel T. McCAW and Toni McCaw, Plaintiffs-Appellees, v. T & L OPERATIONS, INC., doing business as Dixie Bar, Defendant-Appellant, and Michael K. Williams, Not Participating. Docket No. 206722. Court of Appeals of Michigan. Submitted October 10, 1997, at Lansing. Decided June 23, 1998, at 9:05 a.m. Released for Publication September 29, 1998. Raymond L. Krell, by Derek A. Hurt, Detroit, for Plaintiffs-Appellees. Kallas & Henk, P.C. by Edward J. Lee, Bloomfield Hills, for T & L Operations, Inc. *364 Before MacKENZIE, P.J., and MARK J. CAVANAGH and WHITE, JJ. (ON REMAND) MARK J. CAVANAGH, Judge. This case is before us for the second time. In our first decision, we concluded that plaintiff Daniel McCaw's[1] claim was barred by the fireman's rule and reversed. McCaw v. T & L Operations, Inc., 217 Mich.App. 181, 550 N.W.2d 852 (1996). The Supreme Court, in lieu of granting leave to appeal, remanded the case for reconsideration in light of its decision in the consolidated cases Gibbons v. Caraway and Mariin v. Fleur, Inc., 455 Mich. 314, 565 N.W.2d 663 (1997). 456 Mich. 869, 569 N.W.2d 163 (1997). We again reverse. The facts of this case were set out in our previous opinion: Plaintiff Daniel McCaw is a police officer with the Waterford Township Police Department. During the evening of August 31, 1991, plaintiff was dispatched to investigate a reported stabbing at a house on Hira Street. When plaintiff arrived at the residence, he saw a man lying on the front lawn and realized that the man had been stabbed. A man, later identified as Michael Williams, came out on the porch. Because of Williams' behavior, slurred speech, and bloodshot, glassy eyes, plaintiff realized that he was under the influence of alcohol. Williams told plaintiff that he had called the police. When plaintiff attempted to question Williams about the stabbing, Williams became agitated and began to yell at plaintiff. Williams told plaintiff to leave, but plaintiff refused. Williams then informed plaintiff that he was going to leave. Plaintiff stepped in front of Williams to prevent him from departing. Williams began to attack plaintiff. During the ensuing scuffle, Williams struck plaintiff in the face. As a result of this incident, plaintiff suffers from blurred peripheral vision, tinnitus, and an injury to his jaw. At trial, Williams testified that on August 31, 1991, he was nineteen years old. On that day, he began drinking beer around 3:00 p.m. Around 6:00 p.m., Williams and two friends, Jeff Morgan and Tim Smith, went to the Dixie Bar. At the bar, the three men shared several pitchers of beer and consumed three to five B-52 shots. Williams testified that he was feeling drunk while in the bar. After the men left the bar, Morgan and Smith began to argue. When the men arrived at Williams' house, Williams went inside and fell asleep or passed out. After Williams awoke, Morgan told him that he had stabbed Smith. Williams then called 911. Williams stated that he was not sober during the altercation with plaintiff. On February 8, 1993, plaintiff filed suit against Williams and the owner and operator of the Dixie Bar, T & L Operations, Inc. (hereafter defendant), to recover for the injuries suffered in the incident. The claim against Williams was based on negligence and alleged that Williams acted in a "wilful, wanton and reckless manner." The claim against defendant was based on multiple violations of the dramshop act, M.C.L. § 436.22; M.S.A. § 18.993. Specifically, plaintiff alleged that defendant served alcohol to Williams when the latter was both underage and visibly intoxicated. * * * * * * On July 21, 1994, a default was entered against Williams. Williams participated in the subsequent trial only as a witness and is not involved in this appeal. Soon after, the case was tried before a jury. After the close of plaintiff's proofs, defendant moved for a directed verdict on the basis that the fireman's rule barred plaintiff's claim and because plaintiff failed to show that the dramshop violation was a proximate cause of plaintiff's injuries. The trial court denied the motion as it related to the fireman's rule and allowed plaintiff to recall Williams to establish the element of proximate cause. On August 1, 1994, the jury returned a verdict for plaintiff. Plaintiff was awarded $121,689.89, and plaintiff's wife was awarded $25,000 for her *365 loss of consortium claim. The trial court later granted plaintiff's motion for an award of costs and attorney fees and denied defendant's motion for judgment notwithstanding the verdict. [McCaw, supra at 183-185, 550 N.W.2d 852.] The fireman's rule was adopted by the Supreme Court as a common-law rule in Kreski v. Modern Wholesale Electric Supply Co., 429 Mich. 347, 415 N.W.2d 178 (1987). The fireman's rule prevents police officers and fire fighters from recovering for injuries arising out of the risks of their respective professions. Id. at 351, 415 N.W.2d 178. The scope of the rule includes both negligence in causing the incident requiring a safety officer's presence and those risks inherent in fulfilling the police or fire fighting duties. Id. at 372, 415 N.W.2d 178. The Court next addressed the application of the fireman's rule in Woods v. City of Warren, 439 Mich. 186, 190, 482 N.W.2d 696 (1992). In Woods, the Court explained that the rule bars recovery for two types of injury: "those derived from the negligence causing the safety officer's presence and those stemming from the normal risks of the safety officer's profession." Id. at 196, 482 N.W.2d 696. The analytical focus must be on whether the injury stems directly from the safety officer's professional functions. Id. at 193, 482 N.W.2d 696. Nevertheless, the fireman's rule may not apply in situations where the policy rationales for its adoption are inapplicable. Id. at 194, n. 8, 482 N.W.2d 696. The Supreme Court's recent decision in Gibbons, supra, involved two consolidated cases, Gibbons v. Caraway and Mariin v. Fleur. In Mariin, an off-duty police officer, dressed in civilian clothes, was socializing in a bar. The officer was injured when another patron in the bar recognized him as the one who had arrested the patron several years previously and attacked him. Gibbons at 319, 565 N.W.2d 663. A majority of the Court held that the fireman's rule did not bar the officer's claim because the connection between the injury was too attenuated from the exercise of his police function. See id. at 328, 565 N.W.2d 663 (Cavanagh, J.), at 329, 565 N.W.2d 663 (Boyle, J.), at 340-341, 565 N.W.2d 663 (Riley, J.).[2] In Gibbons, a police officer directing traffic after an accident had occurred was injured when a third party driving along the road swerved and struck him. Id. at 317-318, 565 N.W.2d 663. The Court failed to produce a majority opinion in this case. However, five justices appear to agree that the fireman's rule does not bar a claim for damages for injuries caused by the subsequent wrongdoing of a third party unconnected to the situation that brought the officer to the scene, where the wrongdoing resulted from wanton, reckless, or grossly negligent behavior. See id. at 325-326, 565 N.W.2d 663 (Cavanagh, J.), at 329-330, 565 N.W.2d 663 (Boyle, J.). A majority of the Gibbons Court clearly agrees that the decision in Woods, supra, should be limited. See id. at 323-324, 565 N.W.2d 663 (Cavanagh, J.), at 329, 565 N.W.2d 663 (Boyle, J.). However, the Court has not delineated the extent of the limitation. The five justices who agreed that the fireman's rule did not preclude recovery in Gibbons did not abandon the requirement in Woods that fire fighters and police officers may not recover for the normal, inherent, and foreseeable risks of their respective professions. These justices reconciled the result in Gibbons with Woods by reaching the somewhat counterintuitive conclusion that, for a police officer directing traffic at the scene of an accident, the danger of injury from a negligent or grossly negligent driver is not inherent in the risks of the profession.[3]*366 See id. at 325, 565 N.W.2d 663 (Cavanagh, J.); at 330, 565 N.W.2d 663 (Boyle, J.). Justice Cavanagh explained this result by quoting language from Kreski stating that the "`fireman's rule is not a license to act with impunity, without regard for the safety officer's well-being.'" See id. at 325, 565 N.W.2d 663 (Cavanagh, J.), quoting Kreski, supra at 372, 415 N.W.2d 178. Justice Boyle concluded that the injury in Gibbons should be compensable because "there is no direct relationship between the act that caused the injury and the act that occasioned the officer's presence." See Gibbons, supra at 329, 565 N.W.2d 663 (Boyle, J.). In our opinion, there is an inherent inconsistency in stating both that the fireman's rule bars recovery for injuries stemming from the normal, inherent, and foreseeable risks of the profession and that the fireman's rule "is not a license to act with impunity, without regard for the safety officer's well-being."[4]Kreski, supra at 372, 415 N.W.2d 178. In the context of police officers, it is clear that the normal, inherent, and foreseeable risks of the profession include confronting people who will not only act without regard for their safety, but may deliberately attempt to harm them. As the Supreme Court noted in Kreski, "police officers cannot be certain what dangers surround them when investigating a burglary." Id. at 378, 415 N.W.2d 178. Likewise, police officers cannot predict what they will encounter when responding to a report of a stabbing, as plaintiff did in the present case. Gibbons did not produce a majority rationale for resolving this contradiction. Under the facts of the present case, it is clear that the injuries to plaintiff resulted from Williams' wilful, wanton, reckless, or grossly negligent behavior.[5] However, after considering Gibbons, we find dispositive the fact that Williams was not a third party unconnected to the situation that brought plaintiff to the scene. On the contrary, Williams was present at the scene where a man had been stabbed. It was therefore likely that Williams had either committed the stabbing or possessed important information about it. In fact, Williams had spent the day in the company of both the perpetrator of the stabbing and the victim, and he had summoned plaintiff to the scene by calling 911. Plaintiff was injured when Williams attacked him after he attempted to prevent Williams from leaving the scene. We find this situation distinguishable from that in Gibbons, where the defendant struck the plaintiff with her vehicle as the latter was directing traffic following an unrelated accident. We cannot conclude that Williams' wrongdoing was unconnected to the situation that brought plaintiff to the scene. It therefore does not appear that Gibbons precludes the application of the fireman's rule in the present case. However, our analysis does not end there. We now examine the policy rationales behind the fireman's rule to see if they are applicable. See Woods, supra at 194, n. 8, 482 N.W.2d 696. According to the Kreski Court, the foundational policy rationale [is] that the purpose of safety professions is to confront danger and, therefore, the public should not be liable for damages for injuries occurring in the performance of the very function police officers and fire fighters are intended to fulfill. [Kreski, supra at 368, 415 N.W.2d 178.] In adopting the rule, the Court also cited the facts that police officers and fire fighters are trained to deal with the hazards of their respective professions and that worker's compensation benefits are available to police officers and fire fighters injured in the course of their employment. See id. at 366, 369, 415 N.W.2d 178. These policy rationales are all applicable in the instant case. Our decision is also influenced by an additional policy consideration, mentioned in our previous opinion. Plaintiff's claim against *367 defendant is based not on injuries directly inflicted on plaintiff by defendant, but rather on violations of the dramshop act. If the fireman's rule did not apply here, bar owners might hesitate to summon the police for aid in disturbances and instead resort to self-help measures, creating additional risk to the public. See McCaw, supra at 188-189, 550 N.W.2d 852. For the foregoing reasons, we conclude that plaintiff's claim is barred by the fireman's rule. We therefore reverse the order granting a judgment consistent with the jury verdict in favor of plaintiff. We also reverse the order awarding plaintiff costs and attorney fees. Our resolution of this issue renders it unnecessary for us to address defendant's other issues. Reversed. MacKENZIE, P.J., concurred. WHITE, Judge (dissenting). I do not address plaintiffs' argument that the fireman's rule is generally inapplicable to statutory actions under the dramshop act, M.C.L. § 436.22; M.S.A. § 18.993, because that question was decided adversely to plaintiffs in this Court's initial opinion and the Supreme Court's remand to this Court was solely for the purpose of reconsidering the case in light of Gibbons v. Caraway and Mariin v. Fleur, Inc., 455 Mich. 314, 565 N.W.2d 663 (1997). In Gibbons, the Supreme Court discussed its previous decisions applying the fireman's rule and reaffirmed the Court's recognition in Woods v. City of Warren, 439 Mich. 186, 482 N.W.2d 696 (1992), that the rule generally applies to injuries derived from the negligence causing the safety officer's presence and also to those stemming from the normal risks of the profession, but is to be applied "flexibly as circumstances require[ ]" to "flexibly address the different fact patterns as they are presented," recognizing "individual exceptions in appropriate situations" when the "fundamental policy rationale is inapplicable." Gibbons, at 322-323, 565 N.W.2d 663 (citations omitted). Applying these principles to the instant case, I would hold that the policy rationales are inapplicable and affirm. The dramshop violation was unrelated to the reason plaintiff Daniel McCaw (plaintiff) was on the scene. Plaintiff was not called to the scene by a bar owner seeking assistance in dealing with a disorderly patron, called regarding a disturbance created by an intoxicated person, or called to the scene of an accident involving a drunk driver. Rather, he was called to investigate a stabbing involving two persons other than Williams. Thus, the aspect of the policy rationale that seeks to encourage citizens to call safety officers for assistance without regard to their own negligence is not implicated, and the prong of the test that focuses on injuries derived from the negligence requiring the officer's presence is inapplicable because defendant's "negligence" (statutory violation) was unrelated to plaintiff's presence. Additionally, except in the most general sense, being assaulted by Williams was not a normal, inherent, and foreseeable risk. Williams' intoxication was peripheral to plaintiff's performance of his duties. Further, the aspect of the policy rationale for the fireman's rule that recognizes that safety officers are trained at taxpayer expense to handle dangerous situations and are compensated at taxpayer expense to deal with hazards created by taxpayer negligence, and therefore shields citizens from damage claims for injuries sustained by officers as a result of carelessness or ordinary negligence encountered as a normal risk of the profession, Gibbons, at 321, 565 N.W.2d 663 (Cavanagh, J.), at 331, 565 N.W.2d 663 (Boyle, J), is inapplicable to the instant situation where the risk of injury from the acts of persons served in violation of the dramshop act is specifically addressed by a legislative scheme that requires that the dramshop owner maintain security for liability under the dramshop act.[1] The dramshop owner is not in the *368 same position as the citizen whose ordinary negligence causes injury to the officer. I would affirm. NOTES [1] Toni McCaw, Daniel McCaw's wife, joins him as plaintiff. Because her loss of consortium claim is derivative and dependent on her husband's claim, and to avoid confusion, we will refer only to Daniel McCaw as plaintiff. [2] Justice Weaver concurred only in the result because of her belief that the fireman's rule should be limited to premises liability. See id. at 334, 565 N.W.2d 663 (Weaver, J.). [3] In her opinion in Gibbons, Justice Riley criticized the majority's conclusion that the danger of injury from a negligent driver for a police officer directing traffic at the scene of an accident is not inherent in the risks of the profession as a "fiction." Id. at 338, 565 N.W.2d 663 (Riley, J.). Justice Riley further stated: "Because the fireman's rule was adopted by this Court as a common-law rule, if we decide to rework the doctrine, we should not be reluctant to expressly redefine when the rule applies, rather than attempt to fit these facts into the preexisting rules established by Kreski and Woods." Id. at 338, n. 2, 565 N.W.2d 663. [4] We recognize that in the interim between the Supreme Court's decisions in Kreski and Woods, two panels of this Court held that the fireman's rule did not preclude an action by an injured police officer against an individual who either intentionally or wilfully and wantonly injured the officer. See McAtee v. Guthrie, 182 Mich.App. 215, 220, 451 N.W.2d 551 (1989); Rozenboom v. Proper, 177 Mich.App. 49, 57, 441 N.W.2d 11 (1989). [5] Plaintiff has not alleged that Williams acted intentionally. [1] I recognize that the same argument might be made regarding automobile accidents involving officers on the basis of the legislative requirements for security under the no-fault act. However, in such cases a different aspect of the policy favoring application of the fireman's rule is operative because, as observed by Justice Boyle in Gibbons, the situation that required the officer's presence often creates the added risk that a third party unrelated to the situation will be distracted or inattentive and negligently cause injury to an officer at the scene. Gibbons, at 331, 565 N.W.2d 663 (Boyle, J.). In such cases, the third-party driver may be excused from liability to the officer at the scene in the line of duty where that very situation provides the occasion for the third party's negligence. The instant case presents a different fact pattern. Defendant's violation of the dramshop act was wholly independent of, preceded, and was in no way caused by the situation that led to plaintiffs presence on the scene in the exercise of his duties as an officer.