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1995 Det. C.L. Rev.

1379, *

Copyright (c) 1995 The Detroit College of Law Review


Detroit College of Law Review

Winter, 1995

1995 Det. C.L. Rev. 1379

LENGTH: 22428 words

CASENOTE: "GROSS NEGLIGENCE" AND "WILFUL AND WANTON


MISCONDUCT" - THANKS TO JENNINGS v. SOUTHWOOD, MICHIGAN
NOW KNOWS WHAT THEY MEAN

Jacqueline Monte

SUMMARY:
... In Jennings v. Southwood, the Michigan Supreme Court considered
the issue of whether the common law definitions of "gross negligence"
and "wilful and wanton" misconduct were workable within the
Emergency Medical Services Act ("EMSA"). Fundamental to this issue,
was the determination of the current definitions of "gross negligence"
and "wilful and wanton" misconduct standards, as applied to the scope
of immunity applicable to emergency services personnel in light of
Michigan's comparative negligence standard. ... The Michigan Supreme
Court examined gross negligence and wilful and wanton misconduct in
terms of applying liability to governmental employees. ... The court
held that the Gibbard definition of gross negligence was contrary to the
purpose of the EMSA in that it permitted liability on a finding of
ordinary negligence, which would void the immunity provision of the
EMSA. ... Once a proper definition of "gross negligence" was adopted,
the Jennings court turned to the issue of whether the Michigan courts
should continue to apply the standard for "wilful and wanton"
misconduct as explained in Gibbard. ... The division between "wilful
and wanton" misconduct and ordinary negligence was said to be the
probability that an injury might occur, if not a specific intent that it
does. ... In spite of this abrogation of contributory negligence in 1979,
Michigan had begun to apply the Gibbard standard to "wilful and
wanton" misconduct as well as "gross negligence" as soon as 1981. ...

TEXT:
[*1379] INTRODUCTION
In Jennings v. Southwood, the Michigan Supreme Court considered the
issue of whether the common law definitions of "gross negligence" and
"wilful and wanton" misconduct were workable within the Emergency
Medical Services Act ("EMSA"). 1 Fundamental to this issue, was the
determination of the current definitions of "gross negligence" and
"wilful and wanton" misconduct standards, as applied to the scope of
immunity applicable to emergency services personnel in light of
Michigan's comparative negligence standard. 2

In examining Jennings and Boroditsch v. Community Emergency


Medical Service, Inc. jointly, 3 the court was able to examine the extent
of liability incurred by the negligent acts of emergency medical
services workers. 4 The court held that the appropriate definition of
"gross negligence," as it applies to emergency medical services
workers, could be found in the Governmental Tort Liability Act ("GTLA").
5 In addition, the court held that to successfully allege "wilful"
misconduct of an emergency medical services worker, a plaintiff must
prove that the defendant intended the harm which occurred. 6

This Note will review the history of "gross negligence" and its
reconstruction with the abrogation of contributory negligence in
Michigan. Further, this Note will examine the level of negligence
[*1380] required to maintain an action against an emergency medical
services worker as stated in the consolidated cases of Jennings and
Boroditsch. 7 Finally, this Note will interpret the impact the Jennings
decision will have on Michigan law.

I. BACKGROUND

A. Gross Negligence

The difficulty in articulating the precise meaning of "gross negligence"


is not a new development. 8 Nor is it unique to Michigan. 9
Traditionally, the definition of "gross negligence" is the intentional
disregard of the consequences of an action which would most likely
adversely affect the life and property of another. 10 Commentators
have acknowledged that there is no generally accepted meaning aside
from more than ordinary inadvertence or inattention. 11 An oft quoted
phrase as to the difference between the types of conduct states that
"the difference is that between him who casts a missile intending that
it shall strike another and him who casts it where he has reason to
believe it will strike another, being indifferent whether it does so or
not." 12 Michigan has taken a unique approach to defining "gross
negligence" by creating, in effect, two standards. [*1381] The first
standard was founded in case law in Gibbard v. Cursan. 13 The latter
standard is found in the GTLA. 14

1. Common Law

In Gibbard, the Supreme Court of Michigan employed the doctrine of


gross negligence in order to avoid the harsh consequences of
contributory negligence. 15 Seventy-one years later, Gibbard remains
the leading case on gross negligence in Michigan. 16 The court stated
that "in a case where the defendant, who knows, or ought, . . . to know
of the precedent negligence of the plaintiff, by his subsequent
negligence does plaintiff an injury. Strictly, this is the basis of recovery
in all cases of gross negligence." 17 In Gibbard, the Michigan Supreme
Court distinguished between mere negligence on the part of either the
plaintiff or the defendant and gross negligence as a defense to
contributory negligence. 18 The court determined that when the
plaintiff is in possible danger, not caused by his own negligence, and
the defendant is aware of this danger, but continues his course of
action and injures the plaintiff, the defendant cannot use the defense
of contributory negligence. 19

[*1382] Gibbard laid out a three-prong test for determining liability on


the part of the defendant: (1) Knowledge of a situation that requires
ordinary care and diligence to avoid injury; (2) The ability to avoid the
harm with ordinary care; and (3) The failure to use ordinary care, when
the resulting harm would be obvious to an objective person. 20
Applying the facts to this new Michigan standard, the court held that
while the decedent was guilty of negligence when she ran into the road
after being scared by a truck, her negligence was not subsequent, but
concurrent. Therefore, the doctrine of gross negligence as a defense
was not applicable. 21 As to the defendant, the court held that the
truck was driven at a reckless speed, did not slow down until almost
upon the deceased, gave no reasonable warning, took no precautions
to protect the deceased, and that such conduct was without excuse. As
such, no error was committed that would require a reversal of the
lower court decision. 22

Difficulties arise when trying to articulate an operative defining line


between "gross negligence," "wantonness," "wilfulness," and
"recklessness." 23 Different jurisdictions have attempted to define
"gross negligence" in varying ways. For example, the Texas Supreme
Court stated that "gross negligence is positive or affirmative, rather
than merely passive or negative as ordinary negligence often, and
perhaps usually, is." 24 Consequently, under Texas law, mere
indifference is not enough. The indifference must be conscious. Since
such indifference affects the rights and welfare of others, foreseeability
becomes important. 25 Other states, such as Virginia, have taken a
much harsher view of gross negligence. In the case of [*1383] Frazier
v. City of Norfolk, 26 Virginia defined "gross negligence" as a heedless
and palpable violation of legal duty affecting the rights of others. 27

In an effort to harness the inequitable results that often occur with


gross negligence and contributory negligence, most states have some
form of comparative negligence. 28 Because contributory negligence
has been governed by common law, 29 its rules could be modified in
the court system. In 1979, Placek v. City of Sterling Heights 30
established pure comparative negligence in the State of Michigan. 31
At the time of the decision, thirty-two states, and the Supreme Court of
the United States, in the area of admiralty law, had discarded or
rejected contributory negligence in favor of some form of comparative
[*1384] negligence. 32 The Michigan court believed that the
precedent of the shift was so great that it had no choice but to move
with the trend. 33

Under the pure comparative negligence theory adopted in Placek, the


plaintiff's recovery is reduced by the same proportion as his conduct
bears to the total fault. 34 The alternative to pure comparative
negligence is a modified comparative negligence. 35 Under [*1385]
modified comparative negligence, the plaintiff's recovery is reduced
only until his fault reaches some threshold amount, usually around fifty
percent of the total fault. 36

Prior to Placek, in the case of Kirby v. Larson, 37 but for the fact that
the case was heard by six Justices instead of seven, comparative
negligence would have been established in Michigan in 1977. 38 The
ultimate disposition in Kirby included two opinions, each one
representing the views of three Justices. 39 In part IX of the opinion,
written by the proponents of comparative negligence, an analysis was
made as to the propriety of judicial versus legislative abrogation of
contributory negligence and the adoption of comparative negligence.
40 Citing the Michigan Constitution, the court held that there was no
issue as to whether both the Supreme Court of Michigan and the
Michigan Legislature have the constitutional power to change common
law. 41 When asked whether a judicial forum is appropriate for
adoption of comparative negligence, the court noted that in three of
the states then employing comparative negligence, the rule was
judicially adopted. 42 The court conceded that although judge-made
[*1386] law had not been the primary agency for adoption of
comparative negligence, it was in a good, if not better, position to
evaluate the need for change and to fashion that change. 43

2. The Legislation
To examine Michigan's statutory definition of "gross negligence" as it
relates to governmental agencies and emergency services, it is first
necessary to look to other jurisdictions to understand how Michigan is
unique. 44 Plaintiffs will often use the statutory obligations of certain
governmental agencies to operate emergency services as a basis to
argue that governments have a constitutional duty to rescue the
individual in a negligence-free manner. 45 Proponents of this belief
state that the failure to properly rescue an individual in danger is
equivalent to denying them life and liberty as guaranteed by the
Fourteenth Amendment. 46

For example, in the United States Supreme Court case of DeShaney v.


Winnebago County Department of Social Services, 47 the [*1387]
representatives of the plaintiff sued the state under 42 U.S.C. § 1983
claiming that the state deprived the plaintiff of his "liberty without due
process of law, in violation of his rights under the Fourteenth
Amendment." 48 The Supreme Court rejected the plaintiff's argument,
holding that the Due Process Clause does not require a state to protect
its citizens from the actions of private actors, but that "it forbids the
State itself to deprive individuals of life, liberty, or property without
'due process of law . . . .'" 49 The plaintiff argued that since the state
was aware of the boy's situation, a special relationship existed
between the boy and the state, and therefore the state had an
affirmative duty to protect him. 50 The Court specifically rejected this
argument by holding that the Fourteenth Amendment did not impose a
duty on the government to provide aid or protective services. 51

The Court ultimately held that if special duties are created by state tort
law, the state may be subject to suit since, through its courts and
legislature, it can impose affirmative duties of care and protection on
its agents as it wishes. 52 It added that not "'all common-law duties
owed by the government actors were . . . constitutionalized by the
Fourteenth Amendment.'" 53 Authorities argue that while DeShaney
stated that an individual had no reason to expect constitutionally
guaranteed protection, the plaintiff's reliance is enough to establish a
common-law duty, in effect, imposing a special duty on the emergency
services system to rescue the individual. 54 Once a special duty is
created, anything improper, negligent, or tortious should create liability
that cannot be circumvented by governmental immunity. 55

[*1388] While governmental immunity is very much alive, it has been


eroded by state tort acts which serve to abolish absolute immunity and
allow plaintiffs to sue for torts. These statutes, for the most part, have
not attempted to radically alter the common law treatment of official
immunity. 56 Rather, the statutes have been legislative attempts to get
to the heart of the specific common law immunity doctrine by detailing
particular, recurring situations when a public employee is to be
immune from tort liability and when he is not. 57 One example is the
California Tort Claims Act, 58 which makes a state employee liable as a
private person for his tortious conduct unless otherwise provided.
Additionally, he is accorded the defenses normally available to private
persons. 59

In spite of the abrogation of contributory negligence in Michigan, post-


Placek cases continue to use the three-prong test of Gibbard to define
gross negligence. 60 The Michigan Supreme Court specifically declined
the opportunity to redefine gross negligence in Burnett v. City of Adrian
61 in the context of the Recreational Use Statute. 62 The court
admitted that it needed to reconcile the confused and disparate edicts
of the Michigan courts concerning the concepts of "gross negligence"
and "wilful" and "wanton" misconduct. 63 Unfortunately, because it
was an appeal from the grant of a motion for summary judgment for
failure to plead gross negligence, the court felt that the facts of the
case were not adequate to accomplish the task. 64 [*1389] The court
held that until such time as the proper facts were presented, it was
bound by the three-prong test laid out in Gibbard. 65 Because it took
exception to the third prong of the test regarding the likelihood of
injury, the Burnett court was unhappy with the Gibbard definition. 66

In Abraham v. Jackson, 67 the Michigan Court of Appeals declined to


decide whether the EMSA 68 provided an exception to governmental
immunity for individual government employees. 69 The court agreed
with the defendants' argument that the trial court should have applied
the test for immunity set forth in Ross v. Consumers Power Co. 70 The
Ross test states that in order to have individual immunity for lower
level officials, employees and agents, they must be: "(1) Acting during
the course of their employment and acting, or reasonably believe they
are acting, within the scope of their authority; (2) Acting in good faith;
and (3) Performing discretionary, as opposed to ministerial, acts." 71
The court concluded that it need not address [*1390] the immunity
exception issue at that time because while the supreme court held that
a governmental agency may be held vicariously liable under the EMSA,
in Malcolm v. City of East Detroit, 72 it did not address the question
whether the EMSA set forth an exception to individual immunity. 73

The Michigan Supreme Court was presented with the issue of whether
liability may be imposed upon a governmental agency pursuant to the
provision of the EMSA, despite the across-the-board immunity granted
in the GTLA in Malcolm. 74 The plaintiff maintained that the EMSA
created an exception to the GTLA when, as in this case, the city
engaged in wilful misconduct in sending untrained personnel to treat
the plaintiff. 75 The court decided that the EMSA, as it related to
vicarious liability, modified section 7 of the GTLA with respect to those
persons listed in the first sentence of the EMSA. 76 In addition, the
court stated that the Gibbard gross [*1391] negligence definition was
to be maintained, as required in Burnett, until a future case
necessitated revisiting the opinion. 77

The case of Pavlov v. Community Emergency Medical Service, Inc. 78


presented the court with the fact pattern it had been looking for in
Burnett. 79 At the time of the complaint, Michigan broadly excepted
emergency medical personnel from negligence claims relating to the
performance of their duties. 80 The court of appeals disagreed with the
plaintiff's argument that the statute granted EMS technicians immunity
only when they were acting in emergencies, and that the defendants'
actions in failing to transport the decedent immediately, ended the
emergency and precluded them from claiming statutory immunity. 81
The court held that the defendants' first encounter with Mr. Pavlov was
obviously an emergency situation, therefore the statute would be
applicable. 82

The Pavlov court conceded that "few aspects of negligence law have
proven more frustrating to this state's courts than the construction of
the term 'gross negligence.'" 83 In trying to interpret the statutory
meaning of "gross negligence," the court first turned to [*1392] court-
made law and the leading case of Gibbard. 84 The court relied on
Gibbard to point out that the historical context of "gross negligence"
was to be a plaintiff's doctrine to avoid the bar of contributory
negligence. 85 The Pavlov court noted that the Gibbard definition of
gross negligence had remained unaltered, in spite of Michigan's
adoption of comparative negligence. 86

B. Wilful and Wanton Conduct

Common law courts and commentators have used "wilful" and


"wanton" to describe a state of mind not present when a person is
merely negligent. 87 However, commentators note that although
efforts have been made to distinguish between "gross negligence,"
"wilful," and "wanton" conduct, in practice these distinctions have been
consistently ignored, and the three terms have been treated as
meaning the same thing, or as having the same legal effect. 88 The
usual meanings associated with "wanton," and "wilful" are
characterized by acts of unreasonable character in disregard of a
known obvious risk that are so great as to make it highly probable that
there would be resulting harm. 89 Because of the difficulty in proving
this type of conduct, an objective standard has become the standard
practice. 90 In response to this problem, Justice Oliver Wendell Holmes
stated that the difference between the different types of negligence
should be an external standard. 91

[*1393] In many jurisdictions, the differences between "gross


negligence," "wanton," and "wilful" are semantic. 92 Despite the
difficulty in delineating the different types of negligent conduct, all
courts must identify it. Two early examples explore the differences that
can arise in attempting to define "wanton" and "wilful." One of the
early applications of "wilful" in Michigan held that an act done "wilfully"
implied intent. 93 In 1891, the Michigan Supreme Court stated that
"wilful" involved more than negligence; it implied malice. 94 On the
other hand, the Kansas Supreme Court, in 1908, stated that "wanton"
negligence was the failure by one charged with a duty to exercise due
care and diligence to prevent an injury after the discovery of a danger.
95

An examination of cases from Michigan and other jurisdictions reveal


the struggle that the courts have had in finding a workable definition of
negligence. One method of tackling this problem has been the creation
of a test consisting of several elements. In 1960, in the case of
Williamson v. McKenna, 96 the Oregon Supreme Court stated that it
needed to formulate a useable test which would enable it to determine
with reasonable accuracy and consistency whether conduct would be
culpable within the meaning of a particular statute. 97 The court
acknowledged that it would not be able to find a standard or rule that
could be used with precision because of the nature of the conduct. 98
The Williamson court cited the Michigan [*1394] guest statute, 99 and
construed it to mean that "gross negligence" and "wilful" and "wanton"
misconduct were synonymous. 100

California examined the issue, as it related to the Federal Tort Claims


Act 101 and Nevada law, in Gard v. United States. 102 Under Nevada
law, in order for the plaintiff to recover against a land owner, the
plaintiff would have to prove a wilful or malicious failure to guard or
warn against a dangerous condition. 103 In this case, the court found
that the facts failed to show that the defendant or any of its employees
exercised the degree of culpability required to maintain the action. 104

Although standards have been set to help courts identify the requisite
conduct, they are not of much assistance in dealing with practical
application to current disputes. 105 Gibbard is an example of such a
situation where the court set a standard that was fraught with
problems. 106 The Michigan Supreme Court noted that, under the
proper conditions, "gross negligence" is sometimes called "wanton" or
"wilful" or "reckless" negligence. 107 The court stated that wilfulness
[*1395] or wantonness transcend negligence in kind because the acts
are characterized by wilfulness, rather than inadvertence. 108 In the
Gibbard three-prong test, 109 the key factors were knowledge,
avoidance of harm, and conscious disregard of the resulting harm. 110
Commentators argue that the "knowledge of the risk" element is used
together with the "conscious disregard" element to help distinguish the
difference between a culpable state of mind and someone acting with
ordinary negligence. 111

Uncertainties arose in Michigan when actions were brought under both


the Gibbard standard and the statutory standard. 112 An example of
this is Higgins v. Detroit Osteopathic Hospital Corp. 113 The pertinent
part of the opinion dealt with the application of the "Good Samaritan"
act. 114 In determining whether the defendant should be held liable
under the "Good Samaritan" act, the court looked to the Gibbard gross
negligence standard to determine "gross" neglect or "wilful" and
"wanton" misconduct. 115 The court in Higgins held [*1396] that in
applying this standard, there was absolutely no indication that the
defendant's acts or omissions in treatment of the plaintiff were grossly
negligent. 116

Another example of this dilemma is the 1989 Michigan Court of


Appeals' case, Mallory v. City of Detroit. 117 In its interpretation of the
EMSA as it existed at the time, 118 the court found that the statute
applied to vicarious liability actions brought against the City of Detroit.
119 In disagreeing with the plaintiff's argument that the conduct of the
defendants avoided vicarious liability, the court applied the following
rules of statutory interpretation:
(1) When a statute is unambiguous, further construction is to be
avoided; (2) If an ambiguity exists, the intent of the Legislature must
be given effect; (3) A construction which best accomplishes the
statute's purpose is favored; (4) Statutes are to be interpreted as a
whole and construed so as to give effect to each provision; (5) Specific
words in a statute are given their ordinary meaning unless a different
interpretation is indicated; and (6) Respectful consideration is to be
given to the construction of a statute used by those charged with its
application. 120

By finding that the EMSA provided immunity for the defendants, the
court held that the unambiguous language and intent of the legislature
was to grant EMS personnel immunity unless they were acting in
"gross negligence" or with "wilful" misconduct. 121 After giving the
above rules of statutory construction, the court defined "wilful" and
[*1397] "wanton" conduct and "gross negligence" based on case law.
122 "Wilful" and "wanton" misconduct was held to require a showing
that the defendant intended harm or was indifferent as to whether
harm would result. 123 The court disagreed with the plaintiff's
contention that gross negligence and wilful and wanton misconduct
were correctly pled under the EMSA and held that the trial court did not
err in granting summary disposition to the defendants on the grounds
of statutory immunity. 124

In 1992, the Michigan Court of Appeals, in Pavlov, 125 attempted to


clarify the definition of "wilful misconduct." 126 The court cited an
1891 Michigan Supreme Court definition of "wilful" to show that one
can not frivolously allege wilfulness simply for the purpose of bringing
a complaint. 127 The Pavlov court examined five different examples of
how Michigan courts have treated the term "wilful misconduct," 128
and determined that a standard that permits liability for "wilful and
wanton conduct" is less restrictive than one that confines liability to
"wilful" conduct alone. 129 The court held that it was bound by the
language on the face of the EMSA which did not [*1398] provide for
"wilful or wanton conduct," but only "wilful misconduct." 130 The
Pavlov court held that had the legislature wished to expand the
potential liability of emergency medical services providers, it would
have explicitly done so. 131

II. THE DECISION

A. Facts

In 1994, the Michigan Supreme Court decided the case of Jennings v.


Southwood. 132 It consisted of the consolidated cases of Jennings v.
Southwood, 133 and Boroditsch v. Community Emergency Medical
Service, Inc. 134 As a result of alleged negligent actions on the part of
the responding emergency medical services technicians, the plaintiffs
suffered severe injuries in Jennings, and death in Boroditsch. 135

1. Boroditsch v. Community Emergency Medical Service, Inc.

In Boroditsch, Valentine Boroditsch was the personal representative of


the estate of her deceased husband. 136 She brought an action
alleging that an EMS technician incorrectly inserted an oxygen tube
which prevented normal breathing. 137 The defendant, Community
Emergency Medical Service, Inc., was a Michigan corporation engaged
in the business of providing emergency medical services. 138

Mr. Boroditsch was a sixty-seven-year old male who had been on


medication and diuretics in relation to a history of heart problems. 139
In February, 1988, the decedent called the Farmington Hills Fire
Department to obtain emergency assistance for shortness of [*1399]
breath. 140 The defendant dispatched an advanced life support team
to the scene. 141 When the EMS team arrived, the fire department was
already administering cardiopulmonary resuscitation ("CPR"). 142 The
EMS team attempted to establish an airway into Mr. Boroditsch's lungs.
143

Following the intubation and administration of oxygen, Community EMS


transported Mr. Boroditsch to the hospital, 144 where, shortly after
arrival, he was pronounced dead. 145 The plaintiff alleged that the
EMS technicians improperly inserted the endotracheal tube into Mr.
Boroditsch's esophagus instead of his trachea. 146 The defendant
asserted that the only way for the tube to have shifted positions would
have been in transference from the ambulance to the emergency
room. 147 The plaintiff's expert witness found this highly unlikely
because the tube was securely taped and nothing unusual occurred
during the transfer. 148

2. Jennings v. Southwood

This case arose as a result of the defendants' failure to transport


thirteen-year-old Cindy K. Rasmussen to a hospital. 149 On November
26, 1986, defendant Lake Township Ambulance and Rescue was called
to the Jennings home. 150 When the first paramedic arrived [*1400]
on the scene, Cindy, at first, appeared to be unconscious, and then
began thrashing about. 151 According to the testimony of the
defendants, Cindy appeared to calm down when firmly asked to do so
by the paramedic. 152 At trial, there was conflicting testimony
regarding whether the defendants or Cindy's mother made the final
decision not to take her to the hospital. 153 Sometime later that
evening, Cindy went into a diabetic coma and has remained in such a
state ever since. 154

B. Procedural History

1. Boroditsch v. Community Emergency Medical Service, Inc.

Following an amendment to the plaintiff's complaint to specifically


allege gross negligence and wilful misconduct, the defendant moved
for summary disposition. 155 The Oakland County Circuit Court
granted the defendant's motion, holding that the plaintiff's complaint
failed to state gross negligence as per the Gibbard v. Cursan 156
standard. 157 The trial court also granted summary disposition on the
alternative allegation of wilful misconduct. 158 This decision was
affirmed by the court of appeals. 159

[*1401] 2. Jennings v. Southwood


In October, 1988, the trial court dismissed the municipality, holding
that it was not vicariously liable due to governmental immunity. 160
After seven days of trial, the jury returned a verdict of no cause of
action. 161 The plaintiff filed an appeal to the court of appeals alleging
errors committed by the trial court with regard to the summary
disposition of the municipality and the jury instructions. 162 The court
of appeals affirmed the trial court decision based on issues that it
raised sua sponte and resolved against the plaintiff. 163

C. The Majority Opinion

1. Jennings v. Southwood

i. Gross Negligence

The Jennings court addressed the issue of whether the common law
definitions of gross negligence and wilful and wanton misconduct are
viable in light of the EMSA. 164 The Michigan Supreme Court examined
gross negligence and wilful and wanton misconduct in terms of
applying liability to governmental employees. Initially, the court
examined gross negligence in relation to its common law definition and
application. 165

[*1402] Gibbard 166 was cited to explain how Michigan fashioned the
rule of gross negligence to circumvent the harsh rule of contributory
negligence. 167 The Jennings court explained that negligence under
the Gibbard standard was not a high degree or level of negligence, it
was merely the ordinary negligence of the defendant that followed the
negligence of the plaintiff. 168 Since the doctrine of contributory
negligence was abandoned in Placek v. City of Sterling Heights, 169
the court necessarily eliminated the need for the Gibbard definition of
gross negligence. 170 The adoption of pure comparative negligence
removed the imperfection of the unfair and unjust result the Gibbard
court sought to avoid. 171

The court cited Finkler v. Zimmer, 172 which stated the proposition
that the number and variety of names given to the same doctrine
(gross negligence) was deplorable. 173 The Jennings court held that
while it recognized the venerable tradition of a seventy-year-old
doctrine, it must lay aside the Gibbard definition of gross negligence
because it had outlived its usefulness. 174 While it valued precedent
and adherence to the law, the court held that when the precedent
[*1403] failed to serve the law, it must "sacrifice stability" to fulfill its
obligations. 175
Before flatly rejecting the Gibbard definition of gross negligence, the
Jennings court acknowledged that it would be "remiss" if it did not
analyze the EMSA and its purpose as enacted by the legislature. 176
The court held that the Gibbard definition of gross negligence was
contrary to the purpose of the EMSA in that it permitted liability on a
finding of ordinary negligence, 177 which would void the immunity
provision of the EMSA. 178 The court determined that an imposition of
the Gibbard rule would discourage participation in emergency medical
services. 179

The Jennings court held that it must give effect to the intent of the
legislature. 180 As the imposition of the Gibbard standard failed to
promote participation in the EMS field by permitting liability on a
finding of ordinary negligence, it was contrary to the legislative intent
of providing limited immunity and must fall. 181 In addition to the
rejection of the traditional justifications for the Gibbard standard,
failure to promote the intent of the legislature, in and of itself,
demanded its demise. 182

In assuming the task of redefining gross negligence, the Jennings court


discerned that while most jurisdictions failed to agree on the exact
definition of "gross negligence" other than "somewhere between
[*1404] ordinary negligence and an intentional act," 183 Michigan was
fortunate in that its legislature had already declared what type of
conduct constitutes gross negligence in the GTLA. 184 The general
rule, as confirmed by Jennings, is that when a statute fails to define an
operative term, the court will look to the intent of the legislature. 185
In this instance, the legislature intended to immunize EMS personnel
from liability for ordinary negligence, which is the common purpose of
the GTLA. 186 The court ultimately determined that because the two
statutes have a common purpose, the definition of "gross negligence,"
as found in the GTLA, can be applied to the standard for gross
negligence found in the EMSA. 187

ii. Wanton and Wilful Misconduct

Once a proper definition of "gross negligence" was adopted, the


Jennings court turned to the issue of whether the Michigan courts
should continue to apply the standard for "wilful and wanton"
misconduct as explained in Gibbard. 188 The court acknowledged the
difference between a "wilful" act and a "negligent" act as wilfulness
rather than inadvertence. 189 In an effort to distinguish between wilful
and wanton misconduct, the Jennings court turned to Burnett v. City of
Adrian. 190 The division between "wilful and wanton" misconduct and
ordinary negligence was said to be the probability that an injury might
occur, if not a specific intent that it does. 191
[*1405] Since the EMSA permits a plaintiff to recover only for injuries
caused by "wilful" misconduct, the court considered whether the
standard for "wilful and wanton" misconduct should be used to
determine allegations of "wilful" misconduct. 192 "Wilful" involves
design and purpose, while "wilful and wanton" misconduct describes
conduct that is either wilful (intentional), or so reckless as to impute
intent. 193 The court recognized that while it was unfortunate that in
the drafting of the act the phrase "wilful and wanton misconduct" was
used as opposed to "wilful or wanton misconduct," it was nevertheless
apparent that only one of the two types of misconduct was required
under the act. 194 The Jennings court held that common sense
dictated that the internal inconsistency of simultaneously requiring
both states of mind was absurd. 195 The court concluded by holding
that a plaintiff, who alleged wilful misconduct under the EMSA, must
allege that the actor intended to harm the plaintiff. 196

2. Boroditsch v. Community Emergency Medical Service, Inc.

i. Gross Negligence

The supreme court examined the issue of whether the complaint


alleged facts sufficient to show that the defendant's conduct was so
reckless as to demonstrate a substantial lack of concern for whether
injury would result under the definition of gross negligence as found in
section 7 of the GTLA. 197 The supreme court concluded that, in this
case, neither the parties nor the trial court could have predicted that
the Michigan Supreme Court would dismiss the Gibbard [*1406]
definition of gross negligence and adopt the GTLA standard. 198 The
order of the trial court was vacated because it did not have the
opportunity to decide the defendant's motion under the proper
standard. 199 The supreme court did not retain jurisdiction of the case
and left it for the trial court to apply the new standards to the issue.
200

ii. Wilful Misconduct

As to the misconduct allegation, the supreme court stated that while it


was true that the standard of wilful and wanton misconduct would no
longer be applied to allegations of wilful misconduct under the EMSA,
201 remand to the trial court was unnecessary in this instance because
a review of the pleadings, in a light most favorable to the plaintiff,
could not reveal that EMS intended to harm the plaintiff's decedent.
202

3. Jennings v. Southwood
The court turned to Malcolm v. City of East Detroit 203 for guidance as
to whether it could impose liability on a governmental agency
according the provisions of the EMSA, despite the immunity granted in
the GTLA. 204 The court held that since the errors were [*1407] no
longer harmless in light of the new consideration regarding gross
negligence and wilful and wanton misconduct, the judgments of the
court of appeals should be vacated and the case should be remanded
for further consideration of whether the errors were harmless. 205

III. ANALYSIS

The consolidated cases of Jennings v. Southwood and Boroditsch


Community Emergency Medical Service, Inc., 206 presented the
Michigan Supreme Court with the opportunity to abolish the existing
applications of gross negligence and wanton and wilful conduct in the
context of the EMSA. More specifically, the court had to decide whether
Michigan should adhere to a seventy-year-old confusing precedent, 207
or apply new, cogent definitions to "gross negligence," and "wilful and
wanton" misconduct. 208 The court concluded that the appropriate
definition of "gross negligence" under the EMSA is "conduct so reckless
as to demonstrate a substantial lack of concern for whether an injury
results." 209 It also concluded that the appropriate definition of "wilful"
involved intent, and the appropriate definition of "wanton" involved
reckless conduct. One could say that the Jennings holding is specific to
the EMSA only, but it is equally valid to say that the holding has
revamped the entire negligence standard in Michigan as it pertains to
"gross negligence," and "wanton," and "wilful" conduct. 210 What the
court has done, in effect, is to adopt the definition of "gross
negligence" of the GTLA as the common law definition in cases arising
under gross negligence in Michigan statutory schemes. 211

The primary effect of the holding in Jennings was to invalidate the


definition of "gross negligence" as found in Gibbard v. Cursan. 212
[*1408] The court identified that Gibbard was designed to avoid the
harsh consequences that often resulted from Michigan's adherence to
the bar of contributory negligence. 213 However, although Gibbard
corrected one problem, it is patently obvious that there has since been
much confusion and overlap between the doctrines of "gross
negligence," "wilful" misconduct and "wanton" misconduct as applied
to the Gibbard standard. 214

The problem arose with the Gibbard three-prong test for determining
the gross negligence on the part of the defendant. 215 Superficially,
this appeared to be a fairly straight forward test. However, the
confusion it creates is apparent when attempting to apply it to facts.
Who is to say what ordinary care and diligence are? What is ordinary
care? What is obvious? These questions are so discretionary that they
would appear to create sometimes unjust and inequitable results. In
attempts to circumvent this dilemma, states have written statutes
addressing these issues. 216 While these might have been an initial
help, the question still remains of how to define and apply the terms
"gross negligence" and "wilful and wanton" misconduct. The meaning
of this test and its application has been discussed in many contexts in
cases that have come before the court involving statutory
interpretations. 217 In its attempt to clarify the situation, the Gibbard
court stated that when there is precedent negligence on the part of the
plaintiff, and the defendant, by subsequent negligence, does the
plaintiff harm, there would be a basis of recovery. 218 Not surprisingly,
a problem arose when applying the Gibbard standard ". . .in the
context of emergency medical service . . . it is ludicrous to attempt to
portray human suffering and trauma inflicted by the forces of nature
[*1409] or society as negligence in order to establish gross negligence
as defined by case law." 219

The Jennings court was concerned that the problem in applying this
formula seemed to be not so much the test itself, but the application of
the test in light of conflicting standards to emergency medical services
personnel. 220 In support of this, commentators have premised that
courts often incorrectly equate "gross negligence" with "wilful or
wanton" misconduct. 221 The effect of this is that sometimes
immunization of conduct that should be sanctioned occurs. 222
Therefore, if actions of EMS personnel are tortious when the conduct is
found to be wilful or wanton, they will only be accountable when they
intend the harm. 223 If the EMTs are held liable for grossly negligent
actions, lawsuits will turn on factual issues which finders of fact are
well equipped to handle. 224

The most widely held justification for official immunity is the belief that
without it, the public would not get good quality government officials.
The reasoning is that all officials should be protected by immunity from
tortious claims of those who are dissatisfied with their performance so
that they can give the best possible service to the public. 225 This
belief does not have across the board acceptance. Commentators have
noted that there are several issues to consider when determining the
immunity granted to government officials. They are: (1) The danger of
influencing public officials by threat of a law suit; (2) The deterrent
effect of potential liability on people who consider entering
government employment; (3) The drain on the time of the official in
attempting to avoid unsupportable lawsuits; (4) The unfairness of
making entities liable for the acts of their employees; [*1410] and (5)
The theory that the official owes a duty to the public at large and not
the individual. 226 Michigan has dealt with these issues by the
enactment of the EMSA. 227

In the interest of avoiding unfair and unjust results, contributory


negligence was officially rejected in Michigan in favor of comparative
negligence in Placek v. City of Sterling Heights. 228 In spite of this
abrogation of contributory negligence in 1979, Michigan had begun to
apply the Gibbard standard to "wilful and wanton" misconduct as well
as "gross negligence" as soon as 1981. 229 This shift is a perfect
example of how tests are formulated to help courts identify a particular
type of conduct, but due to their broadness, are of little help in a
practical application to disputes. 230 Application of these tests allow
judges to have great discretionary power. The judge has the ability to
explore the specific facts of a case and decide, based upon those facts,
what protection should be afforded by the law. In a negligence
situation, the actor's awareness is important only if the actor had
actual awareness of the risk. 231 If the actor did not appreciate the
risk, the analysis should shift to the degree of unreasonableness that
the conduct represents. 232 By using consciousness as [*1411] a
reference point, the courts are disguising the fact that they are really
making policy judgments regarding what they consider proper conduct.
233 Because it is nearly impossible for courts to clearly define exactly
what specific acts they must identify when making a determination of
conduct as applied to "gross negligence," "wilful," or "wanton"
misconduct, it is also nearly impossible for there to be any consistency
in judgments. 234 The concern is that by relying on consciousness as
the key, courts could call conduct "reckless" without the correct
analysis of the actor's conduct. 235 The better solution would be to
rely on how great the risk is. This also leaves open the element to
great discretion on the part of the court. It is, however, a more
objective test in that it would allow for outside interpretation from
expert witnesses, customs, etc., as opposed to reliance on what the
court or the jury believes is the state of mind of the actor.

In Burnett v. City of Adrian, 236 the Michigan Supreme Court was


aware of this problem, but held that it was bound to follow Gibbard,
even though it believed it to be a poorly stated expression of the
standard to be used for identifying "wilful and wanton" misconduct.
237 The Burnett court stated that when the three-prong test of Gibbard
was read in the context of its precedent analysis, the rule of the case
was that "wilful and wanton" misconduct occurs only if the conduct
shows an intent to harm, or such indifference to whether harm will
result as to indicate a willingness that it does. 238 In essence, Burnett
was concerned with what the result of such an application would be in
a case that required a wanton state of mind. How should a jury respond
if they do not draw the correct inference and find, instead, that the
defendant acted dangerously enough, but with well-meaning stupidity?
239

[*1412] Jennings addressed this concern by unequivocally stating


that, according to every day common sense, "wilful" required a finding
of an actual intent to harm, while "wanton" involved an intent inferred
from reckless conduct. 240 The court stated that neither it nor the
legislature could expect a person to simultaneously have two
inconsistent states of mind. 241 While the court was very thoughtful in
its examination of whether it was the proper body to interpret the
meaning of "gross negligence" as written in the EMSA, 242 it could
have relied on the Michigan Constitution for its authority. 243 It is likely
that the court used this indirect method of interpretation to thoroughly
examine the issue and ensure that there would be no cause for
challenge to its rulings on this matter.

The immunity provision in the EMSA was written with the intent of
encouraging participation in emergency medical services. 244
However, it can also be said that with expanding notions of tort
liability, combined with a greater liberalization of social policies,
American courts now recognize that unmitigated governmental
immunity would yield unfair results for plaintiffs. 245 Today, state tort
acts generally serve to waive absolute immunity and allow plaintiffs to
sue for torts in certain circumstances. 246 In recent years, states have
eroded the concept of absolute immunity for governmental entities as
a defense for torts committed at lower governmental levels. 247 Most
states, like Michigan, apply a limited governmental immunity or hold
that immunity is not available in situations where it has been
specifically waived. 248 After determining that the legislature
specifically intended that the EMS personnel receive limited immunity,
the Jennings court acted on what it felt was a compelling need to avoid
confusion and abandoned the Gibbard three-prong test in favor of a
structured well laid-out breakdown of [*1413] the standards that
could be used in the context of both statutory interpretation and
general civil liability. 249

As evidenced in its examination of the opinions in Burnett, 250 and


Malcolm, 251 the Jennings court was inclined to adopt the GTLA
definition of "gross negligence." 252 The problem that might arise with
this application of the definition is that it leaves the phrase "substantial
lack of concern" open to interpretation. 253 In a highly regulated area,
this could be overcome by employing outside objective testimony from
experts on what standards should be met. In an unregulated, non-
statutory arena, one would still have the problem of determining what
constitutes "substantial" lack of concern.
While it has been argued that the application of the GTLA to the EMSA
would significantly expand the liability of emergency medical
providers, 254 the Jennings court was inclined to adopt the definition
on the basis that it would considerably narrow the window of liability
for emergency service personnel. 255 The definition was concise,
straight-forward and could be easily applied by fact finders. 256 The
court eliminated all of the previous confusion and provided a clean
slate for all to use. By applying the GTLA definition of "gross
negligence" to the EMSA, the court was determined to look at the
whole impact of the GTLA 257 instead of continuing to use a changing
[*1414] case-by-case analysis. 258 The court held that since the GTLA
and the EMSA were harmonious in their intent, they should be read
together. This made perfect sense as they both provided for immunity
of public servant-like employees, unless they exhibited gross
negligence. This approach would also address the concern regarding
any discouragement to potential EMS technicians from entering the
field. These people would no longer have to be concerned with liability
for any mistakes they might make. They would now only be
accountable for any act that is obviously outside the realm of
reasonableness and carefulness.

Although the Gibbard standard was initially applied to determinations


of "gross negligence," the Jennings court correctly identified the fact
that at some point in Michigan jurisprudence, the test became one of
wilful and wanton misconduct. 259 The court cited Burnett as a recent
example of the dissatisfaction with the Gibbard test being applied to
"wanton and wilful" conduct. 260 The Jennings court, in applying
Burnett, criticized the three-prong test of Gibbard. 261 It stated that
"wilful and wanton" misconduct is applicable only if the conduct shows
an intent to harm, or such indifference to harm as would achieve the
same result. 262 The court cited Burnett as stating that the three-
prong test is entirely in the language of ordinary negligence until the
third prong, so it was extremely unworkable with wilful and wanton
conduct. 263 This analysis makes perfect sense, since the three-prong
standard was designed with gross negligence in mind. Obviously,
courts would have problems applying "wilful" (intentional) acts and
"wanton" (outrageously reckless) acts to a negligence standard. 264

[*1415] By discarding the old definitions of "gross negligence," and


"wilful and wanton" conduct, the Michigan Supreme Court did a great
service to the courts, the legislature, and the legal student. An
example of the ease with which the new standards will be applied is
found in Szpara v. Michigan Bell Telephone. 265 Ms. Szpara brought the
action against Michigan Bell Telephone, claiming that its conduct was
grossly negligent and, alternatively, that it had engaged in wilful and
wanton misconduct in (1) failing to provide the special 911 feature as
requested, or (2) failing to warn her that the special protection feature
she requested would not be immediately available. 266 The court held
that the plaintiff's failure to build a foundation for a breach of duty was
fatal to her cause of action. 267

In citing Jennings, the court held that even if Ms. Szpara had
established a duty that was breached, she was still unable to prove
that Michigan Bell's actions rose to the level of gross negligence or
wilful and wanton misconduct as they are now defined. 268 The
Michigan Court of Appeals applied the Jennings definition of gross
negligence to the Emergency Telephone Service Enabling Act and
upheld the circuit court's order granting the defendant's motion for
[*1416] summary disposition. 269 Based on this case, one can see
that Michigan is left with a test that hardly resembles anything
previously seen.

CONCLUSION

In the consolidated cases of Jennings v. Southwood and Boroditsch v.


Community Emergency Medical Service, Inc., 270 the Michigan
Supreme Court abolished the existing application of "gross negligence"
and "wanton and wilful" conduct as they relate to the Emergency
Medical Services Act. 271 The court held that the definition of "gross
negligence," created as a buffer to contributory negligence, was not
valid in a comparative negligence system. 272 The court also held that
the liability of EMS personnel should be viewed more narrowly than in
terms of mere ordinary negligence, as inferred from the Gibbard v.
Cursan 273 definition of gross negligence, but not as broadly as the
across the board immunity found in the Governmental Tort Liability Act.
274

The Jennings court gave Michigan a more up-to-date set of guidelines


for determining the liability of emergency medical services personnel.
The decision signals the demise of a long standing tradition of skirting
the issue of what liability should be for these employees. The decision
will also help to clarify the guidelines for determining liability for "gross
negligence," "wanton" and "wilful" misconduct in a general civil sense.
Instead of having terms that are as intertwined as 'ham and eggs,' and
impossible to clearly separate, Michigan now, thankfully, has distinct
meanings for each.

FOOTNOTES:
n1 446 Mich. 125, 521 N.W.2d 230 (1994).
n2 Jennings, 446 Mich. at 130-31, 521 N.W.2d at 233. The adoption of
pure comparative negligence avoids the harsh results found in
contributory negligence. Id. at 130, 521 N.W.2d at 233.

n3 Jennings v. Southwood, 198 Mich. App. 713, 499 N.W.2d 460 (1993),
vacated, 446 Mich. 125, 521 N.W.2d 230 (1994). The court of appeals
issued a per curiam opinion, which affirmed judgments for the
defendants in Jennings, and granted the defendant's motion for
summary disposition in an unpublished opinion in Boroditsch v.
Community Emergency Medical Serv., Inc., No. 134371 (Mich. Ct. App.
1993).

n4 Jennings, 446 Mich. at 144, 146, 150, 521 N.W.2d at 238-39, 241.

n5 Id. at 136, 521 N.W.2d at 235. The GTLA is codified at MICH. COMP.
LAWS ANN. § 691.1407 (West 1993). The GTLA immunizes government
employees and volunteers from tort liability for any negligent acts
arising during the course of their duties, as long as the acts are not so
reckless that they show a substantial lack of concern for the result. Id.

n6 Jennings, 446 Mich. at 142, 521 N.W.2d at 238.

n7 Id. at 142-43, 521 N.W.2d at 238. The EMSA is codified at MICH.


COMP. LAWS ANN. § 333.20901 (West 1992).

n8 Atchinson v. Baker, 98 P. 804 (Kan. 1908). In this case, the court


stated that although what is really reckless and wanton misconduct is
sometimes called gross negligence, the expression was inaccurate.
Atchinson, 98 P. at 807.

n9 Edwin H. Byrd, III, Note, Reflections on Willful, Wanton, Reckless,


and Gross Negligence, 48 LA. L. REV. 1383 (1988). Some courts in the
country have termed the distinctions between "wilful," "wanton,"
"reckless," and "gross negligence" as a "twilight zone which exists
somewhere between ordinary negligence and intentional injury." Id.
(quoting Pleasant v. Johnson, 325 S.E.2d 244, 247 (N.C. 1985)).

n10 BLACK'S LAW DICTIONARY 1033 (6th ed. 1990).

n11 W. PROSSER AND W. PAGE KEETON, THE LAW OF TORTS § 34 (5th


ed. 1984). Originally, gross negligence was seen as very great
negligence, without even the slightest care. Id. Today, most courts
admit that gross negligence differs and is not quite a reckless
disregard of consequences, and is different from ordinary negligence in
degree, not in kind. Id.
n12 Atchinson, 98 P. at 807.

n13 225 Mich. 311, 196 N.W. 398 (1923), overruled by Jennings v.
Southwood, 446 Mich. 125, 521 N.W.2d 230 (1994).

n14 MICH. COMP. LAWS ANN. § 691.1407 (2)(c). According to this


subdivision, gross negligence is conduct so reckless as to show a
substantial disregard of concern for whether injury will result from
certain actions. Id.

n15 Gibbard, 225 Mich. at 319, 196 N.W. at 399. Gross negligence is
also called discovered negligence, subsequent negligence, wanton or
wilful or reckless negligence, discovered peril, last clear chance
doctrine, and the humanitarian rule. Id. In the case of Li v. Yellow Cab
Co. of California, 532 P.2d 1226 (Cal. 1975), the California Supreme
Court held that contributory negligence is conduct by the plaintiff
which is below the standard that he is required to be held to for his
own protection, and which is a contributing factor to his harm. Li, 532
P.2d 1226.

n16 In Gibbard, the decedent was a thirteen year old girl who was run
over by a truck while walking home from school. Gibbard, 225 Mich. at
314, 196 N.W. at 399. The evidence showed that when the truck driver
sounded his horn, the decedent became frightened and ran into its
path. Id.

n17 Id. at 319, 196 N.W. at 401.

n18 Id. In ordinary negligence, if the plaintiff is guilty of negligence


contributing to the injury, there is no recovery. Id. The doctrines of
gross, subsequent or discovered negligence cannot be used as a
defense for the concurrent negligence of a plaintiff. Id. at 320, 196 N.W.
at 401.

n19 Id. at 319-20, 196 N.W. at 401.

n20 Id. at 322, 196 N.W. at 402.

n21 Id. The court held that the only negligence claimed against the
decedent was that she negligently moved to the left in front of the
oncoming truck, or that she attempted to pass in front of it when it was
too late for the truck to avoid her. Id. The court went on to say that
there was no fatal error in the trial judge's determining that the
conduct was gross negligence when it was really wanton and wilful
conduct because the two terms are commonly synonymous. Id.
Furthermore, if the deceased was injured by the wilful, wanton, or
reckless misconduct of the defendants, any negligence on the part of
the decedent was no defense. Id. at 322-23, 196 N.W. at 402.

n22 Id. at 323, 196 N.W. at 402.

n23 Byrd, III, supra note 9, at 1388. Another famous description of the
distinction between gross negligence and recklessness is that the
categories draw "distinctions among a fool, a damned fool, and a God-
damned fool." Id. at 1388 n.28.

n24 Berentsen v. Bellinghausen, 403 S.W.2d 816, 821 (Tex. 1966)


(concerning Texas' automobile guest passenger statute).

n25 Berentsen, 403 S.W.2d at 821.

n26 362 S.E.2d 688 (Va. 1987). In Frazier, the injured party, a minor,
was attending a convention at Chrysler Hall and was asked to perform
with a church choir by playing the drums. Frazier, 362 S.E.2d at 690.
When the child dropped a drumstick during the performance, he
reached behind him to get it and fell from the pit platform through a
gap approximately 18 feet into the basement of the building. Id. at
690-91. The Virginia Supreme Court held that the city's failure to install
protective devices or warnings did not amount to "that degree of
egregious conduct which can be classified as a heedless, palpable
violation of rights showing an utter disregard of prudence." Id. at 691.

n27 Id.

n28 Gail D. Hollister, Note, Using Comparative Fault to Replace the All-
or-Nothing Lottery Imposed in Intentional Torts Suits in Which Both
Plaintiff and Defendant Are at Fault, 46 VAND. L. REV. 121, 122 n.2
(1993).

n29 Li, 532 P.2d at 1232. In judicially adopting comparative negligence,


the California Supreme Court noted that the doctrine is "inequitable in
its operation because it fails to distribute responsibility in proportion to
fault." Id. at 1230.

n30 405 Mich. 638, 275 N.W.2d 511 (1979). In Placek, the plaintiff
collided with a police vehicle that had its siren on and lights flashing.
Placek, 405 Mich. at 650-51, 275 N.W.2d at 514.

n31 Id. at 650-51, 275 N.W.2d at 514. The court stated:


We hold, in the interest of justice for all litigants in this state, that the
doctrine of comparative negligence hereby replaces the doctrine of
contributory negligence and that the standards of comparative
negligence are to be applied by the court on remand for new trial in
the instant case and on a limited retroactive basis.
Id. The court continued:
As a matter of terminology we replace the doctrine of contributory
negligence. In actuality, however, it is contributory negligence as a
total bar to recovery which is replaced. The effect of this action is to
establish contributory negligence as a partial bar to recovery by
insuring that any recovery of damages by a plaintiff be reduced to the
extent of his or her own negligent contribution to the injury.
Id. at 650 n.1, 275 N.W.2d at 514 n.1.

n32 Id. at 653, 275 N.W.2d at 515. As of today, some form of


comparative negligence has been adopted by 46 states in addition to
the Supreme Court. See Pope & Talbot, Inc., v. Hawn, 346 U.S. 406,
408-09 (1953) (stating that "the harsh rule of the common law under
which contributory negligence wholly barred an injured person from
recovery is completely incompatible with modern admiralty policy and
practice"); Alaska (ALASKA STAT. § 09.17.060 (1991); Kaatz v. State,
540 P.2d 1037 (Alaska 1975)); Arizona (ARIZ. REV. STAT. ANN. §§ 12-
2505, 12-2509 (1991)); Arkansas (ARK. CODE ANN. § 16-64-122 (Michie
1991)); California (Li v. Yellow Cab Co., 532 P.2d 1226 (Cal. 1975));
Colorado (COLO. REV. STAT. § 13-21-111 (1994)); Connecticut (CONN.
GEN. STAT. ANN. § 52-572 (West 1977)); Delaware (DEL. CODE ANN. tit.
10, § 8132 (1990)); Florida (FLA. STAT. ANN. § 768.81 (West 1992);
Hoffman v. Jones, 280 So.2d 431 (Fla. 1973)); Georgia (GA. CODE ANN.
§§ 51-11-7, 51-12-33 (1992)); Hawaii (HAW. REV. STAT. § 663-31
(1988)); Idaho (IDAHO CODE §§ 6-801 to 6-806 (1990)); Illinois (ILL.
ANN. STAT. ch. 110, para. 2-1107. 1, 2-1116, 2-1117 (Smith-Hurd
1992)); Indiana (IND. CODE ANN. §§ 34-4-33-3 to 34-4-33-13 (West
1992)); Iowa (IOWA CODE ANN. § 668.1-668.3 (West 1987)); Kansas
(KAN. STAT. ANN. §§ 60-258a, 60-258b (1991)); Kentucky (KY. REV. STAT.
ANN. § 411.182 (Baldwin 1992)); Louisiana (LA. REV. STAT. ANN. § 2323
(West 1992)); Maine (ME. REV. STAT. ANN. tit. 14, § 156 (West 1980));
Massachusetts (MASS. GEN. LAWS ANN. ch. 231, § 85 (West 1985));
Michigan (Placek v. City of Sterling Heights, 405 Mich. 638, 275 N.W.2d
511 (1979)); Minnesota (MINN. STAT. ANN. § 604.01 (West 1992));
Mississippi (MISS. CODE ANN. § 11-7-15 (1972)); Missouri (MO. REV.
STAT. § 537.765 (1988); Gustafson v. Benda, 661 S.W.2d 11 (Mo.
1983)); Montana (MONT. CODE ANN. § 27-1-702 (1991)); Nebraska
(NEB. REV. STAT. § 25-21, 185 (1989)); Nevada (NEV. REV. STAT. §
41.141 (1991)); New Hampshire (N.H. REV. STAT. ANN. §§ 507:7d,
507:7e (1991)); New Jersey (N.J. STAT. ANN. §§ 2A:15-5.1 to 2A: 15-5.3
(West 1992)); New Mexico (Scott v. Rizzo, 634 P.2d 1234 (N.M. 1981));
New York (N.Y. CIV. PRAC. L. & R. 1411-1413 (McKinney 1976)); North
Dakota (N.D. CENT. CODE §§ 32-03.2-01 to 32.03.2-03 (1991)); Ohio
(OHIO REV. CODE ANN. §§ 2315.19, 2315.20 (Baldwin 1990));
Oklahoma (OKLA. STAT. ANN. tit. 23, § 13 (West 1987)); Oregon (OR.
REV. STAT. §§ 18.470 to 18.490 (1988)); Pennsylvania (42 PA. CONS.
STAT. ANN. § 7102 (1992)); Rhode Island (R.I. GEN. LAWS § 9-20-4
(1985)); South Carolina (Nelson v. Concrete Supply Co., 399 S.E.2d 783
(S.C. 1991)); South Dakota (S.D. CODIFIED LAWS ANN. § 20-9-2
(1987)); Tennessee (McIntyre v. Balentine, 833 S.W.2d 52 (Tenn.
1992)); Texas (TEX. CIV. PRAC. & REM. CODE ANN. §§ 33.001 to 33.013
(West 1986)); Utah (UTAH CODE ANN. §§ 78-27-37 to 78-27-43 (1992));
Vermont (VT. STAT. ANN. tit. 12, § 1036 (1992)); Washington (WASH.
REV. CODE ANN. §§ 4.22.005, 4.22.015, 4.22.070 (West 1988)); West
Virginia (Bradley v. Appalachian Power Co., 256 S.E.2d 879 (W.Va.
1979)); Wisconsin (WIS. STAT. ANN. § 895.045 (West 1983)); Wyoming
(WYO. STAT. § 1-1-109 (1991)).

n33 Placek, 405 Mich. at 653-54, 275 N.W.2d at 515-16.

n34 Id. at 660-62, 275 N.W.2d at 519-20.

n35 Jean W. Sexton, Note, Assumption of Risk and Pennsylvania's


Comparative Negligence Statute-Howell v. Clyde, 620 A.2d 1107 (Pa.
1993), 67 TEMP. L. REV. 903, 905 n.8 (1994) (discussing Pennsylvania's
adoption of a modified comparative negligence approach which
permits a plaintiff to recover damages provided the plaintiff's
negligence was equal to or less than the defendant's negligence - a
50% rule).

n36 Id. See also BLACK'S, supra note 10, at 282. Comparative
negligence is measured in terms of percentage, and any damages
allowed are diminished proportionately to the amount of negligence
attributable to the person who seeks recovery. Id.

n37 400 Mich. 585, 256 N.W.2d 400 (1977).

n38 In Kirby, the plaintiff was a passenger in an automobile that was


struck by the defendant's automobile which was traveling at 25 to 30
miles per hour. Kirby, 400 Mich. at 592, 256 N.W.2d at 404. There was
disputed testimony as to whether the plaintiff suggested that the
driver of her automobile turned before or after the move was begun.
Id. at 593-94, 256 N.W.2d at 404-05.

n39 Id. at 586-87, 256 N.W.2d at 401-02.

n40 Id. at 624-29, 256 N.W.2d at 419-21. The court held that there was
no reluctance on the part of the court to abrogate doctrines that had
outlived their usefulness. Id. at 625, 256 N.W.2d at 419.
n41 Id. at 627, 256 N.W.2d at 420-21. See MICH. CONST. of 1908, art.
III, § 7 (1963). Any common laws and statutory laws in force that are
not repugnant to the constitution are in force until they expire by their
own limitations, are changed, amended, or repealed. Id.

n42 See supra note 32. The three states are Alaska, California, and
Florida. Kirby, 400 Mich. at 627, 256 N.W.2d at 420-21. The court in
Kirby cited several examples where judge-made law in Michigan
employed its corrective responsibilities. Examples of this included: (1)
Abrogation of the defense of assumption of the risk. Id. at 625, 256
N.W.2d at 419 (citing Felgner v. Anderson, 375 Mich. 23, 133 N.W.2d
136 (1965)); (2) Repudiation of the doctrine of imputed negligence. Id.
(citing Bricker v. Green, 313 Mich. 218, 21 N.W.2d 105 (1946)); (3)
Elimination of the privity requirement in actions for breach of implied
warranty. Id. (citing Spence v. Three Rivers Builders & Masonry Supply,
Inc., 353 Mich. 120, 90 N.W.2d 873 (1958)); (4) Overruling the
common-law disability prohibition of the wife not suing for the loss of
her husband's consortium. Id. (citing Montgomery v. Stephan, 359
Mich. 33, 101 N.W.2d 227 (1960)); (5) Overruling the common-law
disallowance of recovery for negligent infliction of prenatal injury. Id.
(citing Womak v. Buckhorn, 384 Mich. 718, 724-25, 187 N.W.2d 218
(1971)); and (6) Elimination of charitable immunity from negligence. Id.
(citing Parker v. Port Huron Hosp., 361 Mich 1, 105 N.W.2d 1 (1960)).

n43 Id. at 626-27, 256 N.W.2d at 420. Were the court to rule on
precedent alone (i.e., were stability the only reason for the court's
existence), it would have no trouble in deciding issues. Id. If the
reasons for the old rule no longer apply, then the rule must fall. Id. at
625-27, 256 N.W.2d at 419-20. However, the court held in
Montgomery, that the precedents of the older cases were not valid
precedents. Id. at 626, 256 N.W.2d at 420 (citing Montgomery, 359
Mich. at 49).

n44 Of the thirty-four identified Michigan statutes that employ the term
"gross negligence," only MICH. COMP. LAWS § 3.996 (107) (1990)
inserts its own definition. Pavlov v. Community Emergency Medical
Serv., Inc., 195 Mich. App. 711, 722 n.6, 491 N.W.2d 874, 880 n.6
(1992).

n45 Jeffrey D. Hickman, Note, It's Time to Call 911 for Governmental
Immunity, 43 CASE W. RES. L. REV. 1067 (1993) (arguing that failure to
rescue a person in danger is a deprivation of life or liberty, thereby
violating the fourteenth amendment).

n46 Id. at 1070. See also U.S. CONST. amend. XIV.


n47 489 U.S. 189 (1989). In DeShaney, a child suffered severe abuse
at the hands of his father. The Wisconsin Department of Social Services
was aware of the situation, in fact they had documentation attesting to
his numerous visits to hospital emergency rooms. DeShaney, 489 U.S.
at 193. In spite of this knowledge, the department did nothing to ease
the situation. The boy was rendered permanently retarded as a result
of "traumatic injuries to the head inflicted over a long period of time."
Id.

n48 Id. at 189. See also § 42 U.S.C. § 1983 (1988).

n49 DeShaney, 489 U.S. at 195.

n50 Id. at 197.

n51 Id. at 196-97. "If the Due Process Clause does not require the State
to provide its citizens with particular services, it follows that the State
cannot be held liable under the Clause for injuries that could have
been averted had it chosen to provide them." Id.

n52 Id. at 202.

n53 Id. (citing Daniels v. Williams, 474 U.S. 327, 335 (1986)).

n54 Hickman, supra note 45, at 1070.

n55 Id.

n56 CHARLES S. RHYNE ET AL., TORT LIABILITY AND IMMUNITY OF


MUNICIPAL OFFICIALS 286 (1976).

n57 Id. at 287.

n58 CAL. GOV'T CODE §§ 825-825.6, 995-995.2 (West 1985).

n59 Id.

n60 See, e.g., Pavlov, 195 Mich. App. at 719, 491 N.W.2d at 878.

n61 414 Mich. 448, 326 N.W.2d 810 (1982).

n62 Burnett, 414 Mich. at 454, 326 N.W.2d at 811. The case was
instituted under the Recreational Use Act, MICH. COMP. LAWS §
300.201 (1994), which authorized recovery only if gross negligence or
wilful and wanton misconduct was shown. Id. In Burnett, the decedent,
a non-swimmer, drowned after walking off the edge of a submerged
structure that the defendant failed to destroy at the time it created
Lake Adrian. Id. at 458, 326 N.W.2d at 813 (Moody, J., concurring). The
plaintiff claimed that an undertow was created around the submerged
structure which sucked the decedent in when he fell into the water. Id.

n63 Id. at 454, 326 N.W.2d at 811. To accomplish that task, the court
held that it would have to disown much of the previous case law and to
establish a simple and easily understood test defining both gross
negligence and wilful and wanton misconduct. Id.

n64 Id. The court held that the more appropriate occasion for a
redefinition to occur would be upon a factual record adequate enough
to enable those who read the pronouncement to better understand it.
Id. at 454-55, 326 N.W.2d at 811.

n65 Gibbard, 225 Mich. at 322, 196 N.W. at 402.

n66 Burnett, 414 Mich. at 455-56, 326 N.W.2d at 812. The requisite
indifference to harm that is the equivalent to a willingness that it occur
was found in the notion that in the circumstances of a given case the
injury is probable, even if the injury was not intentional. This is the
difference between wilful and wanton misconduct and ordinary
negligence. Id.

n67 189 Mich. App. 367, 473 N.W.2d 699 (1991). In Abraham, the
defendants, who were emergency medical technicians, transported the
plaintiff's decedent, who was in respiratory distress, from her home to
the hospital. Abraham, 189 Mich. App. at 369, 473 N.W.2d at 700. On
the way there, the decedent went into full cardiac arrest in the
ambulance and died eight days later. Id.

n68 MICH. COMP. LAWS ANN. § 333.20965 (West 1993). The statute
states in pertinent part:
(1) Unless an act or omission is the result of gross negligence or willful
misconduct, the acts or omissions of a medical first responder,
emergency medical technician, emergency medical technician
specialist, paramedic, or medical director of a medical control authority
or his or her designee while providing services to a patient outside a
hospital, or in a hospital before transferring patient care to hospital
personnel, that are consistent with the individual's licensor or
additional training required by the local medical control authority do
not impose liability in the treatment of a patient. . . .
Id.

n69 Frank J. Wozniak, Annotation, Liability for Negligence of Ambulance


Attendants, Emergency Medical Technicians, and the Like, Rendering
Emergency Medical Care Outside Hospital, 16 A.L.R. FED. 605 (1993)
(application of statutory provisions is designed to encourage
emergency medical treatment by granting case providers, in the
absence of gross negligence or wilful and wanton misconduct,
immunity from liability).

n70 Abraham, 189 Mich. App. at 369, 473 N.W.2d at 701 (citing Ross v.
Consumers Power Co., 420 Mich. 567, 363 N.W.2d 641 (1984)).

n71 Id. at 370, 473 N.W.2d at 701 (citing Ross, 420 Mich. at 633-34,
363 N.W.2d at 641). The Michigan Supreme Court has applied this test
to claims of liability for gross negligence, as well as ordinary
negligence. Id.

n72 437 Mich. 132, 468 N.W.2d 479 (1991).

n73 Abraham, 189 Mich. App. at 372, 473 N.W.2d at 702.

n74 Malcolm, 437 Mich. at 135, 468 N.W.2d at 480. The Governmental
Tort Liability Act is codified at MICH. COMP. LAWS ANN. § 691.1407
(West 1993). The GTLA states that "all government 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."
MICH. COMP. LAWS ANN. § 691.1407(2). In its discussion of this statute
the court in Malcolm acknowledged the fact that in 1986, the GTLA was
amended to include officers, employees and volunteers of
governmental agencies within its provisions. This replaced the
common-law coverage adopted in Ross. Malcolm, 437 Mich at 140 n.8,
468 N.W.2d at 483 n.8. As stated in Malcolm, according to the
amended statute:
[A] governmental official is immune from liability when: a) the official
acts or reasonably believes to act within the scope of authority; b) the
governmental agency is engaged in the exercise or discharge of a
governmental function; and c) the employee's conduct did not amount
to gross negligence that proximately caused the injury or damage.
Id. (citing MICH. COMP. LAWS ANN. § 691.1407).

n75 Id. at 142, 468 N.W.2d at 484. The city argued that it was entitled
to judgment as a matter of law, since any finding of liability under the
EMSA could only be vicarious in nature, and that since the individual
defendants were not found to be negligent, no vicarious liability should
be imposed. Id.

n76 Id. at 148, 468 N.W.2d at 480. See supra note 68 for the language
of the statute. Since the vicarious liability arose only upon gross
negligence or wilful misconduct of an employee, any direct liability
against the city was foreclosed. Malcolm, 437 Mich. at 148, 468 N.W.2d
at 480. By definition, emergency medical services personnel would be
one of the following: a medical first responder; an emergency medical
technician; an emergency medical technician specialist; a paramedic;
or an emergency medical services instructor-coordinator. MICH. COMP.
LAWS ANN. § 333.20904 (West 1992).

n77 Malcolm, 437 Mich. at 148, 468 N.W.2d at 480.

n78 195 Mich. App. 711, 491 N.W.2d 874 (1992). In Pavlov, the plaintiff
and her husband were visiting friends when Mr. Pavlov, who had been
drinking and swimming, began to experience shortness of breath.
Pavlov, 195 Mich. App. at 712-13, 491 N.W.2d at 875. The emergency
medical services ("EMS") unit administered oxygen to Mr. Pavlov. Id. at
713, 491 N.W.2d at 876. An electrocardiogram was performed and the
results were normal. Id. Mr. Pavlov said that his family would take him
to the doctor the next day and he signed a release form. Id. Shortly
after leaving Mr. Pavlov collapsed in full cardiac arrest and was later
declared dead at a local hospital. Id.

n79 Burnett, 414 Mich. at 454, 326 NW.2d at 811.

n80 Pavlov, 195 Mich. App. at 714, 491 N.W.2d at 876 (quoting MICH.
COMP. LAWS § 333.20737 (repealed 1990));
When performing service consistent with the individual's training, acts
or omissions of an . . . emergency medical technician, emergency
medical technician specialist, or advanced emergency medical
technician, do not impose liability on those individuals in the treatment
of a patient when the service is performed outside a hospital. . . . All
persons named in this section . . . are protected from liability unless
the act or omission was the result of gross negligence or wilful
misconduct.
Id.

n81 Id. at 718, 491 N.W.2d at 878. The court held that the body of the
statute gave the definition of "emergency" as a "condition or situation
in which an individual declares a need for immediate medical attention
for any individual, or where the need is declared by emergency
medical personnel or a public safety official." Id. at 714, 491 N.W.2d at
876 (citing MICH. COMP. LAWS § 333.20703(1) (1993)).

n82 Id. at 716, 491 N.W.2d at 877.

n83 Id. at 718, 491 N.W.2d at 878.


n84 Id. (citing Gibbard, 225 Mich. at 319, 196 N.W. at 398). By invoking
the doctrine of gross negligence, the court would be able to turn the
liability back onto the defendant. Id.

n85 Id.

n86 Placek, 405 Mich. at 650-51, 275 N.W.2d at 514.

n87 Byrd, III, supra note 9, at 1394.

n88 PROSSER, supra note 11, at 212. They have been grouped
together as an aggravated type of negligence that is different in
quality rather than degree from the departure from ordinary lack of
care. Id.

n89 Id. at 213. This is also usually followed by the assumption that
there must be a conscious indifference to the consequences. Id.

n90 Id.

n91 Byrd, III, supra note 9, at 1398 n.75.


The words malice, intent, and negligence refer to an external standard.
If the manifest probability of harm is very great, and harm follows, we
say that it is done maliciously or intentionally; if not so great, but still
considerable, we say that it is done negligently; if there is no apparent
danger, we call it mischance.
Id. (citing JUSTICE OLIVER WENDELL HOLMES, COLLECTED LEGAL
PAPERS 117-118 (1920)).

n92 Id. at 1398.

n93 Montgomery v. Muskegon Booming Co., 88 Mich. 633, 50 N.W. 729


(1891).

n94 Montgomery, 88 Mich. at 644, 50 N.W. at 731.

n95 Atchinson, 98 P. at 806.

n96 354 P.2d 56 (Or. 1960). Williamson involved an action by a


passenger in an automobile to recover damages for personal injuries
sustained in an accident. Williamson, 354 P.2d at 57. The facts of the
case showed that the defendant, while attempting to go left without
using his turn signal, cut off the automobile in which the plaintiff was
riding. Id. at 57-58.
n97 Id. at 59. The elements of the test are: (1) The actor's knowledge
of the risk; (2) The magnitude of the risk; and (3) Whether the actor is
conscious of the risk he is exposing to others and is "indifferent" to or
acts in "conscious disregard" of the safety of those around him. 98
A.L.R. 267 (1935).

n98 Williamson, 354 P.2d at 59. The most the court was hoping for was
a clear statement of the factors or elements which would characterize
such conduct. Id.

n99 MICH. COMP. LAWS ANN. § 256.29 (West 1948). This version of the
Michigan guest passenger statute stated that the conduct of an
automobile driver would be culpable if he "would know, or should
know" that his actions would put others in peril. Williamson, 354 P.2d at
60.

n100 Id. The court also stated that "'gross negligence does not mean
great, bad, or much negligence,' but means wilfulness, wantonness or
recklessness." Id. (quoting Finkler v. Zimmer, 258 Mich. 336, 338, 241
N.W. 851, 852 (1932)).

n101 28 U.S.C. § 1346(2)(b)(1994). The Federal Tort Claims Act allows


plaintiffs to recover damages for injury:
caused by the negligent or wrongful act or omission of any employee
of the Government while acting within the scope of his office or
employment, under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with the law of
the place where the act or omission occurred.
Id.

n102 420 F. Supp. 300 (N.D. Cal. 1976), aff'd, 594 F.2d 1230 (9th Cir.),
cert. denied, 444 U.S. 866 (1979). This action was brought to recover
damages for injuries the plaintiff suffered from falling down a vertical
shaft inside an abandoned mine on United States land. Gard, 420 F.
Supp. at 301.

n103 Id. at 302. Nevada defined a "wilful" act as having design,


purpose, and intent to do wrong and inflict an injury. Id. (citing
Crosman v. Southern Pac. Co., 194 P. 839, 843 (Nev. 1921); Rocky
Mountain Produce Trucking Co. v. Johnson, 369 P.2d 198, 201 (Nev.
1962)). In the same vein, "malicious" acts were those done
intentionally, but without justification or excuse. Id. (citing Linkhart v.
Savely, 227 P.2d 187, 197 (Or. 1951)).

n104 Id.
n105 Byrd, III, supra note 9, at 1396.

n106 Gibbard, 225 Mich. at 311, 196 N.W. at 398.

n107 Id. at 319, 196 N.W. at 401. The court defined gross negligence
as where "the defendant, who knows, or ought, by the exercise of
ordinary care, to know, of the precedent negligence of the plaintiff, by
his subsequent negligence does plaintiff an injury." Id.

n108 Id. at 320, 196 N.W. at 401. Confusingly, the court, one
paragraph down, states that "although what is really reckless and
wanton misconduct is sometimes spoken of as gross negligence, the
expression is everywhere recognized as inaccurate and unfortunate . . .
." Id. at 321, 196 N.W. at 401 (quoting Atchinson, 98 P. at 807).

n109 Gibbard, 225 Mich. at 322, 196 N.W. at 402.

n110 Id.

n111 Byrd, III, supra note 9, at 1396. Because the knowledge is


inferred from presumable highly unreasonable conduct, it is argued
that the analysis is not of the actor's state of mind but a disguise for
the analysis the court is making. Id.

n112 See supra notes 14 and 20 and accompanying text.

n113 154 Mich. App. 752, 398 N.W.2d 520 (1986) (appeal from the trial
court's grant of directed verdict to a pediatrician who came to a
different hospital than he normally worked to assist with a newborn
who was having difficulties).

n114 MICH. COMP. LAWS § 691.1502 (1975).


(1) In instances where the actual hospital duty of that person did not
require a response to that emergency situation, a physician . . . who in
good faith responds to a life threatening emergency within a hospital
or other licensed medical care facility, shall not be liable for any civil
damages as result of an act or omission in the rendering of emergency
care, except an act or omission amounting to gross negligence or wilful
and wanton misconduct. (2) The exemption from liability under
subsection (1) shall not apply to a physician where a physician-patient
relationship existed prior to the advent of the emergency . . . .
Id. The court held that the doctor was correctly granted immunity
because there was no prior doctor-patient relationship between either
the patient or her mother and the doctor. Higgins, 154 Mich. App. at
760-61, 398 N.W.2d at 524.
n115 Id. See also Gibbard, 225 Mich. at 322, 196 N.W. at 402.

n116 Higgins, 154 Mich. App. at 761, 398 N.W2d at 524. The court
conceded that, at most, the plaintiff's proofs suggested that the doctor
was guilty of ordinary negligence in misreading the plaintiff's x-rays
and in performing a lumbar puncture. Id.

n121 Id. at 125, 449 N.W.2d at 117. The court noted that the plaintiff's
complaint was essentially one of negligence. Id. The court of appeals
held that if it found the plaintiff's allegations sufficient to void the
immunity provision, it would, in effect, be holding that the last
sentence of the statute was meaningless, thereby subverting the intent
of the legislature. Id.

n122 Id. The Mallory court found that the evidence offered to establish
that the defendants intended to harm or were indifferent about
potential harm did not rise to the level of willingness to harm. Id. at
125, 449 N.W.2d at 117-18.

n123 Id. (citing Burnett v. City of Adrian, 414 Mich. 448, 326 N.W.2d
810 (1982)). The court also defined "gross negligence" as that which
occurs where a plaintiff's prior negligence puts him in a position of
danger and the defendant's subsequent negligence causes the
plaintiff's injury. Id. at 125-26, 449 N.W.2d at 118 (citing Thomason v.
Olive Branch Masonic Temple, 156 Mich. App. 736, 401 N.W.2d 911
(1986)).

n124 Id.

n125 Pavlov, 195 Mich. App. at 711, 491 N.W.2d at 874.

n126 Id. at 715-18, 491 N.W.2d at 877-78.

n127 Id. (citing Montgomery, 88 Mich. at 633, 50 N.W. at 729). "The


allegation that defendant acted willfully . . . implies that the act was
done with a set purpose to accomplish the results which followed the
act. It involves more than negligence; it implies malice." Id.

n128 Id. (1) Wilful means intentional. McKimmy v. Conductors


Protective Assurance Co., 253 Mich 521, 235 N.W. 242 (1931); (2)
Wilfulness transcends negligence--it is different in kind. Gibbard, 225
Mich. at 320, 491 N.W. at 401; (3) Wilful implies intention, but wilful
misconduct lies somewhere between intentional conduct and ordinary
negligence. Serra v. DeMaestri, 66 Mich. App. 171, 238 N.W.2d 568
(1975); (4) Wilful negligence is quasi-criminal and manifests an
intentional disregard to another's safety. Papjesk v. Chesapeake & O.
R.R., 14 Mich. App. 550, 166 N.W.2d 46 (1968); and (5) Wanton conduct
is conduct that amounts to wilful injury. LaCroix v. Grand Trunk W. R.R.,
379 Mich. 417, 152 N.W.2d 656 (1967).

n129 Pavlov, 195 Mich. App. at 717, 491 N.W.2d at 877. The former
allows liability when the defendant is so careless as to intend harm,
and the latter requires actual intent to be present. Id.

n130 See supra note 80 for the statutory language.

n131 See, e.g., MICH. COMP. LAWS § 300.201. The Recreational Users
Statute includes the phrase "willful and wanton." Id.

n132 446 Mich. 125, 521 N.W.2d 230 (1994).

n133 198 Mich. App. 713, 499 N.W.2d 460 (1993).

n134 Boroditsch v. Community Emergency Medical Serv., Inc., No.


134371 (Mich. Ct. App. 1993).

n135 Jennings, 446 Mich. at 142, 147, 521 N.W.2d at 238, 240.

n136 Appellant's Brief at 1, Boroditsch (No. 134371).

n137 Jennings, 446 Mich. at 143, 521 N.W.2d at 238.

n138 Appellant's Brief at 1, Boroditsch (No. 134371).

n139 Id.

n140 Id. The fire department then called Community EMS. Id.

n141 Jennings, 446 Mich. at 143, 521 N.W.2d at 238.

n142 Appellant's Brief at 2, Boroditsch (No. 134371). The defendants


maintain that when they arrived: (1) There was no blood pressure, no
pulse, and no respiration; and (2) his abdomen was fully distended. Id.
In fact, a review of their run sheet shows that they were never able to
establish a hearbeat. Id.

n143 Jennings, 446 Mich. at 143, 521 N.W.2d at 238. Essentially,


intubation involves a tube being inserted through the mouth of the
patient, past the vocal cords and into the trachea. Id. Once positioned,
a cuff on the end of the tube is inflated to secure the positioning of the
tube. Id.
n144 Id. Mrs. Boroditsch testified that during her trip to the hospital
she first noticed that her husband's stomach was distended. Id.

n145 Id.

n146 Id. at 144, 521 N.W.2d at 238.

n147 Id.

n148 Id. at 144, 521 N.W.2d at 239. The defendants responded to this
argument by stating that the plaintiff's expert did not make any
allegations as to the level of negligence for the improper placement of
the tube. Appellant's Brief at 6, Boroditsch (No. 134371).

n149 Jennings v. Southwood, 198 Mich. App. 713, 499 N.W.2d 460
(1993), vacated, 446 Mich. 125, 521 N.W.2d 230 (1994).

n150 Appellant's Brief at 2, Jennings (No. 119614) (Mich. Ct. App.


1994). The appellant's brief stated that the paramedic team responded
to an emergency request that indicated that the victim was suffering
from seizures and diabetic complications. Id. The appellee's brief
stated that the plaintiff's mother informed a paramedic on the scene
that Cindy was just having a "temper tantrum" because the mother
had just informed her that she (the mother) would have to go to jail for
three months. Appellee's Brief at 1, Jennings (No. 119614) (Mich.
1994).

n151 Appellant's Brief at 2, Jennings (No. 119614).

n152 Appellee's Brief at 2, Jennings (No. 119614). After this episode,


the paramedic was able to talk to Cindy, although she was upset and
crying. Id.

n153 Id. at 3. Mrs. Jennings was asked whether the paramedics should
take Cindy to the hospital. She told them no, the problem was between
her and her child and they would work it out on their own. Appellant's
Brief at 2, Jennings (No. 119614). Mrs. Jennings and Cindy's sister deny
that this conversation ever took place. Id.

n154 Jennings, 446 Mich. at 147, 521 N.W.2d at 240.

n155 Id. at 144, 521 N.W.2d at 239.

n156 225 Mich. 311, 196 N.W. 398 (1923), overruled by Jennings v.
Southwood, 446 Mich. 125, 521 N.W.2d 230 (1994).
n157 Appellant's Brief at 7, Boroditsch (No. 134371).

n158 Id. Judge Templin also specifically held that based on the
assertions of the plaintiff's expert, the only supportable claim would be
for ordinary negligence. Id.

n159 Jennings, 446 Mich. at 145, 521 N.W.2d at 239. The Boroditsch
opinion, written by the Michigan Court of Appeals, was not published.

n160 Id. at 147, 521 N.W.2d at 240. During the jury trial, the trial court
instructed the jury about gross negligence using the GTLA definition
and gave examples in the context of criminal law. Id.

n161 Appellant's Brief at 7, Jennings (No. 119614).

n162 Id.

n163 Jennings, 446 Mich. at 148, 521 N.W.2d at 240. The plaintiff failed
to plead and prove precedent negligence on the part of the victim, and
therefore failed to demonstrate gross negligence as defined in Gibbard,
which rendered the defendants immune under the EMSA. Id. The court
of appeals also held that the trial court was wrong in using criminal
examples of gross negligence, but held that these errors were
harmless in light of the plaintiff's failure to correctly plead and prove
gross negligence. Id.

n164 Id. at 128, 521 N.W.2d at 232. The Emergency Medical Services
Act is codified at MICH. COMP. LAWS ANN. § 333.20901 (West 1992).
The EMSA, in effect at the time of the alleged wrongs, controls the
disposition of these cases. Jennings, 446 Mich. at 128 n.1, 521 N.W.2d
at 232 n.1. The statute was changed slightly in 1990; however, both
versions include liability for acts or omissions constituting gross
negligence or wilful misconduct. Id.

n165 Id. Contributory negligence had been accepted in Michigan as


early as 1851. Id. at 130, 521 N.W.2d at 232 (citing Williams v.
Michigan C. R. Co., 2 Mich. 259 (1851)).

n166 Gibbard, 225 Mich. at 311, 196 N.W. at 398.

n167 Jennings, 446 Mich. at 129, 521 N.W.2d at 231-32. At the time the
court decided Gibbard, Michigan followed the rule of contributory
negligence. Id. "It is to avoid this rule and to excuse contributory
negligence of a plaintiff that the doctrine of gross negligence is usually
invoked." Id. (citing Gibbard, 225 Mich. at 319, 196 N.W. at 401). The
Gibbard court noted that such gross negligence is also called
"discovered negligence, subsequent negligence, wanton or wilful or
reckless negligence, discovered peril, last clear chance doctrine, and
the humanitarian rule." Id. (citing Gibbard, 225 Mich. at 319-20, 196
N.W. at 398).

n168 Id. The Jennings court noted that the Gibbard definition had
continued to hold a place in Michigan law despite the Michigan
Supreme Court's rejection of the practices compelling its creation. Id.

n169 405 Mich. 638, 275 N.W.2d 511 (1979).

n170 Jennings, 446 Mich. at 130, 521 N.W.2d at 233.

n171 Id. See generally Kirby v. Larson, 400 Mich. 585, 256 N.W.2d 400
(1977). Under pure comparative negligence, a plaintiff's negligence
reduces the amount of the plaintiff's recovery, allocating liability in
proportion to fault.

n172 258 Mich. 336, 241 N.W. 851 (1932).

n173 Jennings, 446 Mich. at 132, 521 N.W.2d at 233. In 1932, Michigan
proposed that if all negligence terms were called the last clear chance
doctrine, "many difficulties of the student, of the practitioner, and of
the judge, would be removed ultimately." Id. at 132 n.4, 521 N.W.2d at
233 n.4 (quoting Finkler, 258 Mich. at 340, 241 N.W. 851).

n174 Id. at 132, 521 N.W.2d at 233. The court did not take such action
lightly, but could not continue to "inflict on our citizenry a doctrine that
makes little sense in today's jurisprudence." Id.

n175 Id.

n176 Id. at 133, 521 N.W.2d at 234. The court emphasized that when
interpreting a statutory provision, it should seek to effectuate the
legislature's intent and avoid interpretations that lead to absurd
results. Id. The court summarized the intent of the EMSA as twofold.
First, the EMSA is to provide for uniform regulation of emergency
medical service. Id. Second, it is intended to limit emergency
personnel's exposure to liability. Id. (citing Malcolm v. City of East
Detroit, 437 Mich. 132, 142, 468 N.W.2d 479, 484 (1991)).

n177 Id. (citing Finkler, 258 Mich. at 336, 241 N.W.2d at 851).

n178 Id. The legislature expressed its dissatisfaction with the lack of
statutory immunity for the ordinary negligence of emergency
personnel in the preamble to the EMSA: "An act to protect and promote
the public health; to codify, revise, consolidate, classify, and add to the
laws relating to public health; . . . to regulate occupations, facilities,
and agencies affecting the public health; . . . to provide certain
immunity from liability . . . ." Id. at 134 n.6, 521 N.W.2d at 234 n.6
(citing 1981 Mich. Pub. Acts 79).

n179 Id. at 134, 521 N.W.2d at 234. The legislature hoped that the
limited immunity proposed in the EMSA would lessen a viable
impediment from joining the profession. Id.

n180 Id. at 135, 521 N.W.2d at 235 (citing City of Lansing v. Lansing
Twp., 356 Mich. 641, 97 N.W.2d 804 (1959)).

n181 Id.

n182 Id.

n183 Id.

n184 Id. at 136, 521 N.W.2d at 235. Section 7 of the GTLA immunizes
governmental employees and volunteers from tort liability for acts
causing injury during the course of government service as long as the
conduct did not amount to gross negligence. Id. "Gross negligence" is
defined as conduct so reckless as to demonstrate a substantial lack of
concern for whether an injury resulted. Id.

n185 Id.

n186 Id.

n187 Id. The purpose of reading two statutes in pari materia is to


effectuate the intent of the legislature. Id. (citing Wayne County v.
Auditor Gen., 250 Mich. 227, 229 N.W. 911 (1930)).

n188 Id.

n189 Jennings, 446 Mich. at 137, 521 N.W.2d at 236 (citing Gibbard,
225 Mich. at 322, 196 N.W. at 401). The difference transcends
negligence and becomes one of kind. Id.

n190 414 Mich. 448, 326 N.W.2d 810 (1982). The Jennings court held
that even though Burnett acknowledged the need to clarify the
definition, it retained the standard. Jennings, 446 Mich. at 138, 521
N.W.2d at 236.
n191 Id.

n192 Id. at 138, 521 N.W.2d at 236. The court held that the two
standards were not synonymous because the words "wilful" and
"wanton" had distinct meanings. Id. at 137, 521 N.W.2d at 237.

n193 Id. at 140-41, 521 N.W.2d at 237. The court of appeals recognized
this distinction in Pavlov: "A standard that permits liability for 'wilful
and wanton conduct' is less restrictive than one that confines liability
to 'wilful conduct' alone. The former allows liability when the defendant
is so careless as to, in effect, intend harm, but the latter requires that
intent actually be present." Id. (quoting Pavlov, 195 Mich. App. at 716-
17, 491 N.W.2d at 877).

n194 Id. at 141, 521 N.W.2d at 237.

n195 Id. To construe this in any other way would defy the established
principal of statutory construction which states that statutes are to be
construed to avoid absurd results. Id. at 142 n.13, 521 N.W.2d at 238
n.13.

n196 Id. at 142, 521 N.W.2d at 237.

n197 Id. at 145, 521 N.W.2d at 239.

n198 Id. Once the supreme court rejected the Gibbard definition, the
trial court's ruling could no longer stand. Id. The question then became
whether the plaintiff's complaint alleged gross negligence as defined in
section 7 of the GTLA. Id.

n199 Id. at 146, 521 N.W.2d at 239.

n200 Id.

n201 Id.

n202 Id. The trial court found that the plaintiff not only failed to allege
an intent to harm, she also did not allege the necessary indifference to
whether harm would result so as to be the equivalent that it does
occur. Id.

n203 437 Mich. 132, 468 N.W.2d 479 (1991). The Jennings court noted
that the Malcolm court ruled that the EMSA modified the GTLA.
Jennings, 446 Mich. at 149, 521 N.W.2d at 241. This modification
provided an exception to the broad grant of immunity to governmental
units. Id. Under this exception, the Malcolm court said that vicarious
liability could be imputed to the governmental unit if its agent was
grossly negligent or acted with wilful misconduct. Id. As a result, the
Jennings court affirmed the holding of the court of appeals stating that
dismissal of the defendant municipality on grounds of governmental
immunity was unfounded. Id.

n204 Id. The defendants argued that the 1990 amendment to the
EMSA, stating that subdivision (1) does not limit immunity from liability
otherwise provided by law for any of the persons listed in (1) should be
given retroactive application. Id. The Jennings court rejected that
argument and stated that the amendments were not remedial in
nature. Id.

n205 Id. at 150, 521 N.W.2d at 241.

n206 446 Mich. 125, 521 N.W.2d 230 (1994).

n207 Gibbard v. Cursan, 225 Mich. 311, 196 N.W. 398 (1923).

n208 Jennings, 446 Mich. at 140-41, 521 N.W.2d at 237.

n209 Id. at 136, 521 N.W.2d at 235 (citing MICH. COMP. LAWS ANN. §
691.140 (7) (West 1987)).

n210 Burnett v. City of Adrian, 414 Mich 448, 326 N.W.2d 810 (1982).
The Burnett court voiced the need to change the existing standard for
gross negligence but held that it had no choice other than to wait for a
more appropriate fact pattern to present itself. Burnett, 414 Mich. at
444-45, 326 N.W.2d at 811.

n211 Jennings, 446 Mich. at 137, 521 N.W.2d at 235.

n212 Id. at 130, 521 N.W.2d at 233 (citing Gibbard, 225 Mich. at 311,
196 N.W. at 398).

n213 Id. at 126, 521 N.W.2d at 233.

n214 Id. at 138, 521 N.W.2d at 236.

n215 Gibbard, 225 Mich. at 321, 196 N.W. at 401. This three part test
has been part of the substantive law of Michigan since its inception.
The three prongs of this test are: (1) Knowledge of a situation that
requires ordinary care and diligence to avoid injury; (2) The ability to
avoid the harm with ordinary care; and (3) The failure to use ordinary
care, when the resulting harm would be obvious to an objective person.
Id.
n216 See supra note 32.

n217 See, e.g., Kirby v. Larson, 400 Mich. 585, 256 N.W.2d 400 (1977);
Burnett v. City of Adrian, 414 Mich. 448, 326 N.W.2d 810 (1982);
Abraham v. Jackson, 189 Mich. App. 367, 473 N.W.2d 699 (1991);
Pavlov v. Community Emergency Medical Serv., Inc., 195 Mich. App.
711, 491 N.W.2d 874 (1992); Higgins v. Detroit Osteopathic Hosp.
Corp., 154 Mich. App. 752, 398 N.W.2d 520 (1986).

n218 Gibbard, 225 Mich. at 319, 196 N.W. at 400.

n219 Pavlov, 195 Mich. App. at 723, 491 N.W.2d at 880 (Kelly, J.,
concurring).

n220 Hickman, supra note 45, at 1096.

n221 Id.

n222 Id.

n223 Id.

n224 Id.

n225 CHESTER J. ANTIEU & MILO MECHAM, TORT LIABILITY OF


GOVERNMENT OFFICERS AND EMPLOYEES 9 (1990) (citing Gregoire v.
Biddle, 177 F.2d 579, 581 (2d Cir. 1949), cert. denied, 339 U.S. 949
(1950)). The following is an opinion by Learned Hand regarding the
policy reasons behind official immunity:
The justification for doing so is that it is impossible to know whether
the claim is well founded until the case has been tried, and that to
submit all officials, the innocent as well as the guilty, to the burden of a
trial and to the inevitable danger of its outcome, would dampen the
ardor of all but the most resolute, or the most irresponsible, in the
unflinching discharge of their duties.
Id.

n226 Id. at 10.

n227 MICH. COMP. LAWS ANN. § 333.20965 (West 1990). The statute
states in pertinent part:
(1) Unless an act or omission is the result of gross negligence or willful
misconduct, the acts or omissions of a medical first responder,
emergency medical technician, emergency medical technician
specialist, paramedic, or medical director of a medical control authority
or his or her designee while providing services to a patient outside a
hospital, or in a hospital before transferring patient care to hospital
personnel, that are consistent with the individual's licensure or
additional training required by the local medical control authority do
not impose liability in the treatment of a patient . . . .
Id.

n228 405 Mich. 638, 275 N.W.2d 511 (1979).

n229 Burnett, 414 Mich. at 448, 326 N.W.2d at 810. The Michigan
Supreme Court held that no actionable claim for gross negligence was
made out in the plaintiffs' pleadings because there was no allegation of
the defendant's subsequent negligence. Id. at 453, 326 N.W.2d at 811
(citing Gibbard, 225 Mich. at 311, 196 N.W. at 398). The court also held
that the plaintiffs made out a valid case for wilful and wanton
misconduct under Gibbard. Id.

n230 Byrd, III, supra note 9, at 1396. The use of tests to identify
"reckless behavior" masks the court's analysis in the same way as
"proximate cause" language has. Id.

n231 Id.

n232 Id. Even if the actor knew how unreasonable the conduct was, the
court still needs to examine the degree of risk to ascertain if the
conduct is culpable enough to be called "gross." Id.

n233 Id. at 1398. There are few cases where an actor who is not
"conscious," but is doing something highly unreasonable, avoids
liability under a "recklessness" theory because he does not display a
"reckless" state of mind. Id. at 1399.

n234 Id. at 1400. The problems which face courts that are attempting
to apply a gross negligence statute are eased when the legislature
indicates that ordinary negligence is not sufficient under a particular
statute, but that some form of aggravated misconduct is required,
regardless of the word assigned to it. Id.

n235 Id. at 1399.

n236 414 Mich. 448, 326 N.W.2d 810 (1982).

n237 Burnett, 414 Mich. at 455, 326 N.W.2d at 812. In other words,
according to Gibbard, "wilful misconduct" is not a high degree of
carelessness. Id.
n238 Id.

n239 Byrd, III, supra note 9, at 1397.

n240 Jennings, 446 Mich. at 141, 521 N.W.2d at 237.

n241 Id.

n242 Id. at 133, 521 N.W.2d at 234.

n243 MICH. CONST. art. III, § 7 (1963). "The common law and the
statute laws now in force, not repugnant to this constitution, shall
remain in force until they expire by their own limitation, or are
changed, amended or repealed." Id.

n244 Jennings, 446 Mich. at 134, 521 N.W.2d at 234.

n245 ANTIEU & MECHAM, supra note 225, at 9-17.

n246 Hickman, supra note 45, at 1073.

n247 ANTIEU & MECHAM, supra note 225, at 16-17.

n248 Hickman, supra note 45, at 1074.

n249 Jennings, 446 Mich. at 138-39, 521 N.W.2d at 236.

n250 Id. at 138, 521 N.W.2d at 236 (citing Burnett, 414 Mich. at 448,
326 N.W.2d at 810).

n251 Id. at 149, 521 N.W.2d at 240-41 (citing Malcolm, 437 Mich. at
132, 468 N.W.2d at 479).

n252 Id. The GTLA defines gross negligence as "conduct so reckless as


to demonstrate a substantial lack of concern for whether an injury
results." MICH. COMP. LAWS ANN. § 691.1407(2)(c) (West 1987).

n253 Jennings, 446 Mich. at 149, 521 N.W.2d at 240-41.

n254 Appellee's Brief at 22, Boroditsch (No. 134371).

n255 Jennings, 446 Mich. at 133-34, 521 N.W.2d at 234. The Gibbard
gross negligence definition permitted liability on a finding of ordinary
negligence. Id.
n256 Byrd, III, supra note 9, at 1400. The problems which a trial court
and the finder of fact would face in attempting to apply a general
negligence statute are lessened when the courts realize that the
legislature has indicated that ordinary negligence is not sufficient
under a particular statute, but that some form of aggravated
misconduct will be required. Id.

n257 Jennings, 446 Mich. at 136, 521 N.W.2d at 235. The GTLA confers
various degrees of immunity to governments, their agencies, and their
agents. Section 7 immunizes government employees and volunteers
from tort liability for acts causing injury during the course of
government service, so long as the conduct did not amount to gross
negligence. MICH. COMP. LAWS § 691.1407 (1993). The GTLA defines
gross negligence as "conduct so reckless as to demonstrate a
substantial lack of concern for whether an injury results." Id.

n258 Jennings, 446 Mich. at 135, 521 N.W.2d at 235. The court held
that imposition of the Gibbard gross negligence standard failed to
promote participation in the EMS field, and was therefore contrary to
legislative intent. Id.

n259 Id. See, e.g., Burnett, 414 Mich. at 448, 326 N.W.2d at 810;
Malcolm, 437 Mich. at 132, 468 N.W.2d at 479.

n260 Burnett, 414 Mich. at 456, 326 N.W.2d at 812. The majority held
that it did not find the language of the three-prong test of Gibbard a
satisfactory standard to be used for identifying wilful and wanton
misconduct. Id. The Burnett court held that they did not find it a true
synopsis of the test as it was created, but held that it would wait until a
fully developed factual record arose to address the issue. Id.

n261 Jennings, 446 Mich. at 138, 521 N.W.2d at 236.

n262 Id.

n263 Id.

n264 Appellee's Brief at 12, Boroditsch (No. 134371). In the context of


the EMSA, the Gibbard standard would result in potential liability in
virtually every emergency medical situation. This is shown by the
following hypothetical:
Hypothetically, let us assume that an EMS unit receives a call to go to
the scene of an automobile accident where there is a serious injury.
The driver of the ambulance erroneously drives a longer route to arrive
at the scene. By the time the ambulance reaches the accident scene,
the injured person has died. Under the Gibbard test of wilful and
wanton misconduct, the driver of the ambulance is liable. The driver of
the ambulance knew that an accident had occurred and that he had to
get to the accident scene quickly. He certainly had the ability to avoid
the injury by driving the correct route. Finally, he did not drive the
correct route, even though he knew or should have known that failing
to get to the accident scene quickly is "likely" to prove disastrous.
Id.

n265 Negligence - Emergency Telephone Service Enabling Act, MICH. L.


WEEKLY, (No. 17860) Oct. 31, 1994, at 14A. The plaintiff was having
domestic problems and requested an unlisted phone number. Id. As a
result of this, there was a delay in the installation of a 911 service. Id.
Despite informing the telephone company of her domestic situation,
her 911 service was routed through the regular channels. Id. When she
attempted to contact the police shortly after installation of the new
phone number, her call was not received correctly, and she was
severely injured. Id.

n266 Id. The Michigan Court of Appeals held that Ms. Szpara could not
initially complain about her phone service because she had impliedly
agreed to it through her governmental representative. Id. As such, she
could not assert that Michigan Bell Telephone owed her a special duty
to provide more rapid service. Id.

n267 Id.

n268 Id. The Jennings court had adopted the definition of gross
negligence found in the GTLA. Id.

n269 Id. The court held that in applying the new standard (conduct so
reckless as to demonstrate a substantial lack of concern for whether
injury results) to the case at hand, the defendant's actions did not rise
to the level of gross negligence or "wilful and wanton misconduct"
necessary to sustain the action. Id.

n270 446 Mich. 125, 521 N.W.2d 230 (1994).

n271 Jennings, 446 Mich. at 137, 521 N.W.2d at 235.

n272 Id. at 131, 521 N.W.2d at 233.

n273 225 Mich. 311, 196 N.W.2d 398 (1923), overruled by Jennings,
446 Mich. at 125, 521 N.W.2d at 230.
n274 Jennings, 446 Mich. at 131, 521 N.W.2d at 233 (citing Gibbard,
225 Mich. at 131, 196 N.W. at 233; MICH. COMP. LAWS ANN. §
691.1407).

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