I. Introduction.

As part of its statutory charge to examine the common law and statutes of the state and its current judicial decisions, the Michigan Law Revision Commission undertook a two-year study of the law of gross negligence in Michigan. The Commission published a special report in the summer of 1996 that was distributed to interested members of the Michigan legal community for their comments and suggestions.

A major impetus for the Commission's examination of this subject was a 1994 Michigan Supreme Court decision, Jennings v. Southwood.(1) The Supreme Court in Jennings v. Southwood was asked to define gross negligence in the context of the Emergency Medical Services Act. In Jennings, the Michigan Supreme Court overruled the 70-year-old landmark, Gibbard v. Cursan,(2) which had defined gross negligence in a way that was both anachronistic and unique to Michigan. Gibbard and its progeny defined gross negligence to mean that the negligent individual had the last clear chance to avert the harm. Even though Michigan had adopted a pure comparative negligence standard of conduct in 1979 and had abolished the "last clear chance" doctrine in common law tort actions, Michigan retained the "last clear chance" definition of gross negligence, an obvious holdover from the days of contributory negligence.

Rather than fashioning its own gross negligence definition, the Court in Jennings instead borrowed the definition contained in the Government Tort Liability Act (GTLA), one of only two statutes in Michigan that defines that term, the other being 1995 P.A. 249, M.C.L. § 600.2945(d).(3) As explained in the Report that immediately follows the Commission's recommendation, the GTLA extends immunity from suit to government employees, unless their conduct is grossly negligent and "the proximate cause" of the plaintiff's injuries. Under the GTLA(4) and M.C.L. § 600.2945(d), "gross negligence" is defined as "conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results."

II. The Term "Gross Negligence" In Michigan Statutes.

As a result of the Supreme Court's decision in Jennings and of recent statutory developments, three statutes -- the GTLA, the Emergency Medical Services Act, and the 1995 product liability legislation -- use the same statutory definition of gross negligence. Forty other Michigan statutes, however, also use the term "gross negligence," but do not have a gross negligence definition. The term "gross negligence" is most frequently used in Michigan in statutes granting qualified immunity from suit to individuals and organizations engaged in governmental activities or public service. In statutes that grant immunity from suit to specific persons and organizations for acts committed in the line of duty, immunity is usually qualified as not extending to acts that are grossly negligent. Typical is the qualified immunity from liability in the Ambulance and Inhalator Service Act which provides:

Any municipal or private ambulance driver or attendant or policeman or fireman engaged in emergency first aid service, who, in good faith renders emergency care at the scene of an emergency, shall not be liable for any civil damages as a result of acts or omissions in rendering the emergency care, except acts or omissions constituting gross negligence or wilful and wanton misconduct.(5)

Nearly identical language is found in statutes granting immunity from liability to the owners of land leased for hunting, owners of land used without compensation for recreational purposes, mass immunization personnel, doctors and nurses in emergency or sports situations, hospital

personnel in emergency situations, CPR volunteers, block parents in emergency situations, ski patrols in emergency situations, peace officers taking mental patients into protective custody, persons filing commitment petitions for mental patients, and school officials administering medicine to students on a doctor's orders.

A similar, but not identical, phraseology is found in statutes granting immunity from suit to firefighters, hazardous waste cleanup volunteers, government disaster relief workers, and emergency medical technicians. In these statutes the immunity is qualified by excluding conduct that constitutes "gross negligence or willful misconduct," instead of the "gross negligence or willful and wanton misconduct" standard found in the Ambulance and Inhalator Service Act. These statutes can be found in the attached Report.

III. Defining "Willful And/Or Wanton Misconduct".

In Jennings v. Southwood, the Supreme Court was also asked to interpret the term "wilful misconduct" contained in the EMSA. The Court noted in passing that "it is unfortunate that the judiciary and the Legislature have used the phrase 'wilful and wanton misconduct,' as opposed to 'wilful or wanton misconduct.'"(6) but concluded that the phrases "wilful misconduct" and "wilful and wanton misconduct" possess distinct meanings.(7) The term "wilful" requires a finding of actual intent to harm, the Court concluded, while the term "wanton" is an intent inferred from reckless conduct.(8)

IV. Proposals For Legislative Reform.

The upshot of these case law and statutory developments is that the law is unsettled as to defining gross negligence in contexts other than the GTLA, the EMSA, and product liability. Case law and statute also have created a knot of legal standards for culpability, with formulations ranging from gross negligence or willful misconduct, or gross negligence or willful or wanton misconduct, or gross negligence or willful and wanton misconduct. The Commission considered several suggestions, all of which were variations on the theme of enacting a statutory definition of gross negligence.

One suggestion was to enact a statutory definition of gross negligence that would be applicable solely to immunity statutes. Nearly one-half of all the statutes using the term "gross negligence" are of the immunity type. Under this proposal, the GTLA's definition of gross negligence -- "conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results" -- would become the uniform definition for all immunity-type statutes.

A second suggestion was to enact a uniform definition of gross negligence that would be applicable to all statutes using the term "gross negligence." Again, the GTLA's definition of "gross negligence" would be the model.

A third suggestion, made by Commissioner George Ward, was to amend all the statutes that used the alternative formulation of "gross negligence, or wilful or wanton misconduct," and substitute this with three levels of culpability: ordinary negligence, gross negligence, and intentional conduct, with the GTLA definition for gross negligence. Mr. Ward further suggested the following two refinements. First, when conduct is intentional, but performed pursuant to a claim of privilege, such as by a police officer, the conduct amounts to gross negligence only if there is no basis for a good faith belief in the existence of the privilege or if the circumstances indicate that the actor intentionally exceeded the limits of the privilege.(9) Second, in all other cases, conduct shall be deemed to be "so reckless as to demonstrate a substantial lack of concern for whether an injury results" when the mental attitude accompanying the conduct amounts to conscious indifference to the rights, welfare, and safety of others. Such a mental attitude can be inferred from an intentional failure to perform a manifest duty imposed to protect others from serious injury (i.e., from a showing that the actor knew about a serious peril to another, but his acts or omissions demonstrate that he did not care.(10)

At the Commission's September 23, 1996 meeting, Mr. Bruce Timmons, Legal Counsel, House Republican Office, informed the Commission that the GTLA definition of "gross negligence" is in fact not a definition for "gross negligence," but rather is closer to a definition of reckless misconduct that was adapted from the Restatement (Second) of Torts. The Restatement notes, however, that "[i]n the construction of statutes which specifically refer to gross negligence, that phrase is sometimes construed as equivalent to reckless disregard."(11) The Restatement also notes that reckless misconduct is synonymous with "wanton or willful misconduct."(12) The Restatement distinguishes reckless misconduct from intentional wrongdoing in that "[w]hile an act to be reckless must be intended by the actor, the actor does not intend to cause the harm which results from it."(13)

Mr. Timmons informed the Commission that at the time the 1986 amendments to the GTLA were drafted, groups representing state employees urged the Legislature to adopt a definition of gross negligence that would be most protective of public employees, which the Legislature did in M.C.L. § 691.1407(2)(c), M.S.A. § 3.996(107)(2)(c).

Thus, the present definition of "gross negligence" in the GTLA and in 1995 P.A. 249 traces its pedigree to the Restatement (Second) of Tort's definition of recklessness.

V. Recommendation.

To eliminate the confusion created by the many statutes that use an undefined standard of culpability based alternatively on gross negligence, willful misconduct, willful and/or wanton misconduct, or reckless conduct, the Michigan Law Revision Commission makes the following recommendations to the Legislature:

1. Enact a uniform definition for all these terms in Chapter 8 of the Michigan Compiled Laws, to provide:

As used in the statutes of this state, the term or terms "gross negligence," "willful misconduct," "willful or wanton misconduct, "willful and wanton misconduct," or "reckless misconduct" means conduct so reckless as to demonstrate a substantial lack of concern for whether injury results.

The Commission fully recognizes that the definition being recommended is based on an adaptation of a definition of reckless misconduct found in the Restatement (Second) of Torts. Nevertheless, gross negligence has been construed as being synonymous with reckless misconduct, and reckless misconduct has been construed as being synonymous with wanton or willful misconduct.(14) Accordingly, since the recommended definition covers not only acts that are grossly negligent, but also misconduct that is willful, wanton, or reckless, the Commission believes that the proposed definition is an appropriate one under the circumstances.

In addition, the enactment of a uniform definition will bring a much needed measure of predictability to an area of the law that is currently in a state of confusion.

(1) Jennings v. Southwood, 446 Mich. 125, 521 N.W.2d 230 (1994).

(2) 225 Mich. 311, 196 N.W. 398 (1923).

(3) In 1995, the Legislature enacted 1995 P.A. 249, dealing with, among other things, product liability and joint and several liability in personal injury actions, the Legislature enacted the following definition of "gross negligence":

"Gross negligence" means conduct so reckless as to demonstrate a substantial lack of concern for whether injury results.

1995 P.A. 249, section 1, codified at M.C.L. § 600.2945(d). This definition, of course, tracks verbatim the GTLA's definition of gross negligence, bringing to three the number of statutes that use the same definition of gross negligence.

(4) M.C.L. § 691.1407(2)(c), M.S.A. § 3.996(107)(2)(c), provides:

(c) The officer's [or] employee's . . . conduct does not amount to gross negligence that is the proximate cause of the injury or damage. As used in this subdivision, "gross negligence" means conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.

(5) M.C.L. § 41.711a, M.S.A. § 5.160(1)(emphasis added). This section was added in 1967.

(6) Jennings, 446 Mich. at 141.

(7) Jennings, 446 Mich. at 139.

(8) Id., 446 Mich. at 141. Compare Ill. Ann. Stat. § 10/1-210, which defines "willful and wanton conduct" as follows:

"Willful and wanton conduct" as used in this [Governmental Employees Tort] Act means a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property.

(9) Compare Anderson v. Creighton, 483 U.S. 635 (1987).

(10) See, e.g., Burk Royalty Co. v. Walls, 616 S.W.2d 911 (Tex. 1981); Fox v. Oklahoma Memorial Hospital, 774 P.2d 461 (Okla. 1989).

(11) RESTATEMENT (SECOND) OF TORTS § 82, cmt. e. The comment states that "reckless disregard overrides the contributory negligence defense, permits punitive damages, results in a looser application of causation principals, and is the only situation in which gratuitous licensees or trespassers can recover. Readers are referred to §500-§503 of the text for a discussion of reckless disregard."

(12) RESTATEMENT (SECOND) OF TORTS, § 282, cmt. e.

(13) Id. § 500 cmt. f.

(14) The District of Columbia defines "gross negligence" as "wilful intent to injure" or "a reckless or wanton disregard of the rights of another . . . ." D.C. Code § 4-162.

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