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 study of the law of gross negligence in Michigan. On August 2, 1994, the Michigan Supreme Court decided Jennings v. Southwood,(2) a significant case law development in the area of gross negligence. Despite the important change this decision has made, however, major gaps in the law of gross negligence nevertheless persist in Michigan.
In Jennings v. Southwood, the Supreme Court overruled the 70-year-old landmark, Gibbard v. Cursan,(3) 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. Michigan's common law definition of gross negligence had led to more than a little confusion in the Michigan courts.
The Supreme Court in Jennings was asked to define gross negligence in the context of the Emergency Medical Services Act. The Court first rejected the Gibbard definition of gross negligence, a definition that was grounded in legal principles that were no longer good law in Michigan. But rather than fashioning its own gross negligence definition, the Court instead borrowed the definition contained in the Government Tort Liability Act (GTLA), the only statute in Michigan that defines that term. (As explained below, 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, "gross negligence" is defined as "conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results."
As a result of the Supreme Court's decision in Jennings, two statutes, the GTLA and the Emergency Medical Services Act (EMSA), now use the same statutory definition of gross negligence. The Supreme Court has rejected Michigan's outdated definition of gross negligence, but left a vacuum in its wake. Filling it will require action either by the Legislature or the courts. The Jennings decision may signal a trend in which the Michigan courts borrow the Legislature's only definition of gross negligence and makes general use of it in other gross negligence settings. For the forty other Michigan statutes that use the term "gross negligence," but which do not have a gross negligence definition, current case law leaves unsettled how to define gross negligence in contexts other than the GTLA and the EMSA.
Part III of this report traces the legal contexts in which the term "gross negligence" is and has been used in Michigan case law and statutes. Part IV examines definitions of gross negligence generally. Part V reviews definitions of gross negligence in Michigan. Part VI examines the contexts and definitions of gross negligence in other jurisdictions. Finally, Part VII considers options available to the Legislature should it decide to enact a comprehensive, uniform definition of gross negligence.
This Part examines the contexts in which the term "gross negligence" is used in Michigan, including current definitions of gross negligence, their origin, and the development and eventual demise of last clear chance as the preeminent definition of gross negligence in Michigan.
A. Statutory Contexts In Which the Term "Gross Negligence" Is Currently Used in Michigan.
Michigan statutes employ the term "gross negligence" approximately 40 times,(4) but only twice, in the Government Tort Liability Act,(5) and in the tort reform legislation enacted in 1995 P.A. 249,(6) do statutes contain their own definition of gross negligence. The Legislature has enacted at at least one statute using the term "gross negligence" nearly every year from 1974 to 1990.(7) Only five statutes that use gross negligence are more than twenty years old, and the oldest, which was passed in 1953, is only forty years old.(8)
One explanation for the Legislature's increased use of the gross negligence standard in recent years is legislative tort reform to limit the liability of certain classes of persons who would otherwise be held to an ordinary negligence standard of care.
As explained in the next section, gross negligence is most frequently used in statutes granting qualified immunity from suit to individuals and organizations engaged in governmental activities or public service. It is also used as a basis for awarding extraordinary damages, as a ground for disciplining professional licensees, and as a restriction on private organizations which seek to indemnify or release from liability their officers and directors.
1. Gross Negligence As A Statutory Exception to Immunity From Suit
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.(9)
Nearly identical language is found in statutes granting immunity from liability to the owners of land leased for hunting,(10) owners of land used without compensation for recreational purposes,(11) mass immunization personnel,(12) doctors and nurses in emergency or sports situations,(13) hospital personnel in emergency situations,(14) CPR volunteers,(15) block parents in emergency situations,(16) ski patrols in emergency situations,(17) peace officers taking mental patients into protective custody,(18) persons filing commitment petitions for mental patients,(19) and school officials administering medicine to students on a doctor's orders.(20)
A similar, but not identical, phraseology is found in provisions granting immunity from suit to firefighters dealing with hazardous waste,(21) hazardous waste cleanup volunteers,(22) government disaster relief workers,(23) and emergency medical technicians.(24) In these statutes the immunity is qualified by excluding "gross negligence or willful misconduct," instead of the "gross negligence or willful and wanton misconduct" standard found in the Ambulance and Inhalator Service Act.(25) In a similar vein, statutes granting immunity from suit to to individuals providing disaster aid,(26) pesticide users,(27) and restaurant employees trying to aid choking patrons,(28) grant immunity unless the person's conduct amounted to to "gross negligence," but do not add the phrase, "or willful and wanton misconduct."
A third variation is found in the statute granting governmental units immunity from liability when attempting to deal with a hazardous waste release,(29) unless the clean-up effort caused injury due to "gross oss negligence, including reckless, willful, or wanton misconduct, or intentional misconduct."
Special language has sometimes been used in statutes that grant immunity in contexts where financial harms, as opposed to the physical harms covered by the statutes described above, are likely to occur. While the act granting telephone companies immunity when they interrupt normal service to establish and maintain 911 service uses the common "gross negligence or willful and wanton misconduct" language,(30) and Michigan's version of the Uniform Gifts to Minors Act Act uses conventional language that waives immunity for acts that "result from bad faith, intentional wrongdoing or gross negligence,"(31) other statutes in this category use more specialized zed language. For example, two parts of the Insurance Code of 1956 speak of acts "made with gross negligence or bad faith with malice in fact," rather than the more open-textured "good faith" requirement found in other statutes,(32) while two provisions dealing with probate link "wilful fraud" and "gross negligence" as alternate bases for liability.(33)
Many of these immunity provisions, such as the Ambulance and Inhalator Service Act, also require that in order for conduct to be immune from suit it must be performed in "good faith."(34) A few statutes also provide that the class of persons who are the beneficiaries of the the particular act enjoy immunity from criminal sanctions.(35)
What is the interplay of gross negligence, reckless conduct, and wanton and wilful misconduct? Are the three terms synonymous? Gross negligence is usually considered to carry a lower threshold of mens rea than that associated with reckless misconduct, willful and wanton misconduct, willful misconduct, and intentional misconduct. Only if all these various standards of conduct have the same level of mens rea would they be synonymous as a matter of law. The Supreme Court's 1923 Gibbard decision suggested that that indeed might be the case. However, such an interpretation flouts a fundamental rule of statutory construction that all words of a statute are to be given meaning and effect. A statutory interpretation that treats these phrases as synonymous would render parts of the statute surplusage. Moreover, in 1994 in its decision in Jennings v. Southwood, the Supreme Court was 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.'"(36) but concluded that the phrases "wilful misconduct" and and "wilful and wanton misconduct" possess distinct meanings.(37) The term "wilful" requires a finding of actual intent to to harm, the Court concluded, while the term "wanton" is an intent inferred from reckless conduct.(38)
2. Other Statutory Contexts in Which Gross Negligence Is Currently Used in Michigan
a. Indemnification
While some Michigan statutes make gross negligence an exception to a general grant of immunity from suit, another group of Michigan statutes requires private organizations to include a "gross negligence exception" when they hold harmless and indemnify their officers and directors. For example, statutes regulating the formation of non-profit corporations(39) and condominium associations(40) prohibit these organizations from indemnifying directors from liability for intentional misconduct, wilful and wanton misconduct, or grossly negligent acts or omissions.(41)
b. Damage Awards and the Statute of Limitations
One Michigan statute makes gross negligence a ground for enlarging the statute of limitations for one year,(42) another makes it a ground for an award of treble damages,(43) and a third makes gross negligence a ground for an award of punitive damages, litigation costs, and the appointment of a conservator to run the violating corporation's business.(44) The verbal formulations in these statutes are as varied as as those found in the immunity area, with one provision requiring that an act be a "result of gross negligence,"(45) a second requiring that an act be done "wilfully or by gross negligence,"(46) and a third requiring that an act be "willful, intentional, or or the result of gross or wanton negligence."(47)
c. License Revocation
Michigan statutes make gross negligence either a ground for revoking a license or the basis for imposing a lesser penalty. Such statutes are found in the areas of banking,(48) optometry,(49) and residential building contracting.(50) One banking act uses the phrase "intentionally or due to to gross and wanton negligence,"(51) while another requires "dishonesty on the part of the subject person or demonstrates the subject person's gross negligence with respect to the business of the licensee or a willful disregard for the safety and soundness of the licensee."(52)
Finally, a provision in the Michigan Constitution makes "gross neglect of duty" a ground upon which the Governor may discharge public officials.(53)
B. Statutory Contexts in Which The Term "Gross Negligence" Was Formerly Used in Michigan: The Guest Passenger Statute.
The term "gross negligence" occupied center stage in Michigan's former automobile guest passenger statute.(54) The guest passenger statute was in force from 1929 until til 1975, when the Michigan Supreme Court struck it down as unconstitutional in Manistee Bank & Trust Co. v. McGowain.(55) The statute granted the host driver of an automobile immunity from suit brought by a guest passenger, except in cases of "gross negligence or wilful and wanton misconduct."(56) This extensively litigated statute had an associated standard ard jury instruction defining the phrase "gross negligence or wilful or wanton misconduct."(57) In addition, cases interpreting the phrase have been a rich "definitional source for the terms gross negligence and wilful and wanton misconduct."(58)
C. Common Law Contexts in Which the Term "Gross Negligence" Is Used in Michigan.
1. Michigan's Criminal Law
Gross negligence is the standard of culpability for two crimes in Michigan, involuntary manslaughter(59) and felonious-driving.(60) The manslaughter statute provides:
Any person who shall commit the crime of manslaughter shall be guilty of a felony punishable by imprisonment in the state prison, not more than 15 years or by fine of not more than 7,500 dollars, or both, at the discretion of the court.(61)
The definition of the crime of manslaughter in Michigan is a matter which has been left to common law development. The common law makes gross negligence one of the elements of involuntary manslaughter. In People v. Roby,(62) for example, Justice Cooley stated, "I agree that as a rule there can be no crime without criminal intent; but this is not by any means a universal rule. One may be guilty of the high crime of manslaughter when his only fault is gross negligence." More recently, the Michigan Court of Appeals stated that "to convict of involuntary manslaughter, a defendant must have been grossly negligent."(63) Both the first and second editions of the Michigan Criminal Jury Instructions state that an element of involuntary manslaughter is that the defendant committed the act causing death in "a grossly negligent manner."(64)
The felonious-driving statute provides as follows:
Every person who drives any vehicle upon a highway carelessly and heedlessly in wilful and wanton disregard of the rights or safety of others, or without due caution and circumspection and at a speed or in a manner so as to endanger or be likely endanger any person or property and thereby injuring so as to cripple any person, but not causing death, shall be guilty of the offense of felonious driving and upon conviction thereof shall be sentenced to pay a fine not exceeding 1,000 dollars or to imprisonment in the state prison not exceeding 2 years or by both fine and imprisonment in the discretion of the court.(65)
Both the courts and prosecutors have equated the italicized language with "gross negligence," and use "gross negligence" as a short-hand expression for the statute's standard of culpability.(66) Both the first and the second editions of the Michigan Criminal Jury Instructions state that an element of felonious driving is that "the defendant drove the vehicle in a grossly negligent manner."(67)
2. Michigan's Civil Law
Occasionally, a contract may use the term "gross negligence" which calls upon the courts to interpret its meaning in the context of the particular contract.(68) One case has used the term to underscore its finding that a defendant's conduct was intentional within the meaning of the Worker's Compensation statute.(69) Otherwise, while gross negligence is frequently pleaded(70) and sometimes used in the course of testimony,(71) it very rarely surfaces in nonstatutory contexts in Michigan.
D. Common Law Use of the Term "Gross Negligence" in Michigan Before the Adoption of Comparative Negligence.
Gross negligence was an important part of Michigan's contributory negligence regime(72) until the Michigan Supreme Court abolished contributory negligence in 1979 and replaced it with a pure comparative negligence regime.(73) At common law the slightest contributory negligence on the the part of a plaintiff would completely bar recovery from a tortfeasor who was negligent. However, an important exception to this rule provided that contributory negligence was not a bar to recovery from a tortfeasor who was either grossly negligent or who was guilty of wilful and wanton misconduct.(74) Gross negligence was usually defined in the Michigan cases as meaning that the tortfeasor had the last clear chance to avert the harm, while wilful and wanton misconduct was defined essentially as reckless conduct.(75) Plaintiffs could rely on either theory of recovery.
The rationale for the last clear chance doctrine as a trump card to the contributory negligence defense was that defendant's negligence, not plaintiff's contributory negligence, was the proximate cause of the plaintiff's harm. The wilful and wanton misconduct rejoinder to contributory negligence, on the other hand, was rooted in the notion that wilful and wanton misconduct, being quasi-criminal in nature, was therefore substantially different in degree from gross negligence, such that a plaintiff's contributory negligence should not relieve from liability a defendant who had behaved in a wilful or wanton manner.(76)
There are two leading approaches on defining gross negligence. The traditional approach draws from Roman Law. The prevailing approach equates gross negligence with wilful and wanton misconduct or with recklessness.
1. The Traditional Approach to Defining Gross Negligence
The traditional definition of gross negligence uses a three-tiered scheme of negligence: (1) slight negligence (the want of great care), (2) ordinary negligence, and (3) gross negligence (the want of even slight care). This approach has its origins in Roman law and was used primarily in the areas of bailments and automobile guest passenger statutes.(77)
The leading definition of gross negligence using this traditional approach is that of Learned Hand who stated:
Gross negligence is substantially and appreciably higher in magnitude and more culpable than ordinary negligence. Gross negligence is equivalent to the failure to exercise even a slight degree of care. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care. It is a very great negligence, or the absence of even slight diligence, or the want of even scant care. It amounts to indifference to present legal duty, and to utter forgetfulness of legal obligations so far as other persons may be affected. . . . Gross negligence is manifestly a smaller amount of watchfulness and circumspection than the circumstances require of a prudent man. But it falls short of being such reckless disregard of probable consequences as is equivalent to a wilful and intentional wrong. Ordinary and gross negligence differ in degree of inattention, while both differ in kind from wilful and intentional conduct which is or ought to be known to have a tendency to injure.(78)
This definition has come under heavy criticism from judges and scholars for causing confusion,(79) a criticism perhaps best captured by Baron Rolfe who who described gross negligence as the same thing as ordinary negligence "with the addition of a vituperative epithet."(80) The attempt to create a three-tiered negligence scheme has has been discarded in England, where it was first used at common law,(81) as well as in Illinois(82) and Kansas,(83) where this approach was experimented with in the United States.
2. The Modern Trend in Defining Gross Negligence
The prevailing approach to defining gross negligence is to place it at an intermediate level of mens rea between negligence and intentional conduct, and alternatively refers to this level of mens rea as gross negligence, willful and wanton misconduct, or recklessness. Both a federal statutory(84) and a federal regulatory(85) definition of gross negligence, and Michigan's only statutory definition of the term,(86) use this formulation. The U.S. Court of Appeals has has adopted this description of gross negligence in the context of §1983 suits.(87) In 1981, the Texas Supreme Court used a formulation of of this type to replace its previous "absence of even slight care" formulation of gross negligence.(88) This is also the formulation used in Oregon(89) and Florida.(90) As previously noted in this report, the Michigan Supreme Court has apparently rejected the view that all of these terms are fungible. In the Jennings decision, the Michigan Supreme Court went to great lengths to make clear the distinctions among gross negligence, wilful conduct, and wilful and wanton conduct.
The next Part of this report examines definitions of gross negligence in Michigan, including the common law contributory negligence cases, the guest passenger cases, the criminal law cases, and the Government Tort Liability Act's definition of gross negligence. This Part also briefly reviews the tortured history and final demise in 1994 of the "last clear chance" definition of gross negligence in Michigan.
This section analyzes the approach of Michigan's early common law cases in using gross negligence as an exception to the defense of contributory negligence in tort actions. After considering the earliest Michigan cases -- which did not use a last clear chance definition of gross negligence -- the discussion turns to an examination of the last clear chance doctrine in Michigan and how the doctrine became confused with gross negligence in Michigan. The final portion of this section examines how gross negligence was defined in the contributory negligence context beginning with Gibbard, to the demise of the contributory negligence regime in Michigan in 1979, to the overruling of Gibbard in 1994.
In 19th century common law cases in Michigan involving exceptions to the contributory negligence defense, a clear line developed between ordinary negligence and aggravated conduct. Within aggravated conduct, however, the lines between gross negligence and recklessness, on the one hand, and between gross negligence and wilful and wanton misconduct, on the other, were far less clear. Indeed, these terms were often used interchangeably.
Illustrative is Schindler v. Milwaukee, L.S. & W. Ry. Co.(91) There, the Michigan Supreme Court offered the following definition of gross negligence:
The term "gross negligence" has been used in a case decided by this Court, and has a definite meaning, when referred to as authorizing a recovery for a negligent injury, notwithstanding the contributory negligence of the plaintiff. It means the intentional failure to perform a manifest duty, in reckless disregard of the consequences, as affecting the life or property of another. It also implies a thoughtless disregard of consequences, without the exertion of any effort to avoid them.(92)
This explanation of what constitutes aggravated conduct was followed in that same opinion by a hopelessly confused description of such conduct. Besides referring to "gross negligence," at various points in the opinion the Court interchangeably described the same aggravated conduct as "gross recklessness,"(93) "wanton and reckless conduct,"(94) and "gross and wanton negligence."(95) A concurring opinion used the term "reckless negligence"(96) to mean gross negligence, and a dissenting opinion ion described the aggravated conduct variously as "gross negligence,"(97) "gross and wanton negligence,"(98) and "gross negligence and reckless conduct."(99)
In another 1891 decision, Denman v. Johnston,(100) the Court did no better than Schindler on this score. The Denman Court showed a similar lack of analytical rigor by treating gross negligence as the equivalent of a "wanton, willful, and reckless [violation of duty]," "reckless, wanton, and malicious [neglect]," a "negligent act . . . having been wantonly, willfully, recklessly, and negligent committed," and "a reckless and wanton disregard of the personal safety of [a] child."(101) Neither Schindler nor Denman mentioned last clear chance.
From 1891 to 1923 (the year the Gibbard case was decided), many cases quoted the Denman/Schindler definition of gross negligence verbatim, and adopted the same analytically fluid resolution of gross negligence cases.(102) Parallel to the Denman/Schindler line of cases, however, a , a competing line of cases was unfolding in the Supreme Court that focused on the importance of differentiating between ordinary and gross negligence in order to preserve the contributory negligence defense. In an effort to derail a threatened merger of gross negligence and ordinary negligence that might eliminate the contributory negligence defense altogether, this line of authorities rejected any gross negligence exception to the contributory negligence defense, and instead substituted the "last clear chance" doctrine. These cases reasoned that it was more consistent to use last clear chance, rather than a gross negligence exception to contributory negligence, because the "last clear chance" doctrine was merely a specific instance of the general principal of proximate cause. The reasoning went that the chain of proximate causation that was broken by the plaintiff's contributory negligence was reestablished when the defendant had the last clear chance to avoid the accident.
The following statements by the Supreme Court in LaBarge v. Pere Marquette R. Co.,(103) highlight the split within Michigan between the the Denman/Schindler line of cases and the competing last clear chance line:
Counsel in this and many other cases have apparently assumed that where negligence is extraordinary, to a comparative or superlative degree, it is proper to call it "gross," and that, when it can be so denominated, certain legal consequences result. Accordingly in this case it is said that it was extremely negligent to shunt these [train] cars down the street without a lookout on duty, . . . and justified the charge of "gross" negligence, and hence nothing that the plaintiff had done or might do after the discovery of the approaching train could be effective as a defense to the action. We think this is not the rule. The doctrine of responsibility notwithstanding discovered negligence of the plaintiff, does not apply where the plaintiff's negligence is, in the order of causation, either subsequent to, or concurrent with, that of the defendant.
A case decided the next year, Buxton v. Ainsworth,(104) further muddied already turgid doctrinal waters by making last clear chance an element of of gross negligence. Prior cases had used the last clear chance doctrine, and had even rejected the gross negligence exception in the same opinion. But none had so blurred the distinction between the two doctrines.(105) The Buxton Court stated:
[T]he instruction [given at trial] failed to direct the attention of the jury to the important element of so-called gross negligence; i.e., that before gross negligence can be made out which warrants recovery notwithstanding the precedent contributory negligence of the plaintiff, the negligence of the latter must have been discovered, or the latter must have neglected the most ordinary precaution in failing to discover it. As the charge was given to the jury, the terms "wanton," "willful," and "reckless" may have been considered as words of emphasis, and, so understood, defined the doctrine of comparative negligence, which does not obtain in this state.(106)
After re-emerging briefly in 1911 in Knickerbocker v. Detroit, G.H. & M.R. Co.,(107) last clear chance did not surface again until the landmark case of Gibbard v. Cursan(108) in 1923. In analyzing gross negligence in the context of contributory negligence, the the Gibbard Court discussed gross negligence in the following terms:
When will gross negligence of a defendant excuse contributory negligence of a plaintiff? In a case 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 the plaintiff an injury. Strictly, this is the basis of recovery in all cases of gross negligence. . . . The theory of gross negligence is that the antecedent negligence of the plaintiff only put him in a position of danger and was therefore only the remote cause of the injury, while the subsequently intervening negligence of the defendant was the proximate cause. . . . Nor can it be said that because a defendant's negligence is great, of a comparative or superlative degree, it may therefore be called "gross," and that a plaintiff's contributory negligence may, for that reason alone be excused. The rule of comparative negligence does not obtain in this State.(109)
Even though Gibbard adopted wholesale a last clear chance approach to gross negligence, the Court stated that plaintiffs could use either a defendant's gross negligence (i.e., last clear chance) or a defendant's wilful and wanton misconduct to overcome the contributory negligence defense.(110) In connection with the latter, Gibbard stated that wilful and and wanton misconduct required a showing of the following elements:
(1) Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand; (3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another.(111)
In the years after the Gibbard case, the Denman/Schindler definition of gross negligence was occasionally applied in the contributory negligence context. Sometimes this occurred without distinguishing Gibbard and last clear chance.(112) Other cases did acknowledge Gibbard's last clear chance rule, but concluded that it was only one approach available under the circumstances. For example, in 1961 in Nass v. Mossner, the Supreme Court stated:
We must not be understood as confining the doctrine of gross negligence in each case to the simple situation of subsequent negligence. Its essence is a reckless disregard of the safety of another.(113)
This view was adopted by the Court of Appeals in 1974 in McKeever v. Galesburg Speedway,(114) where the court stated that "[a]lthough Michigan courts have equated 'gross negligence' with 'subsequent negligence,' it is clear that Michigan recognized a separate doctrine of 'gross negligence'," quoting the Denman definition of gross negligence.(115)
Nevertheless, most cases followed Gibbard by requiring the subsequent negligence associated with last clear chance up until 1979 when contributory negligence was abolished in Michigan.(116)
2. The Guest Passenger Statute Cases
Many cases interpreting the guest passenger statute rejected the Gibbard definition of gross negligence, believing that the Legislature had not intended to limit the term "gross negligence" to the "last clear chance" meaning Gibbard had assigned it. Typical of these cases was Oxenger v. Ward, a 1932 guest passenger case.(117) There, the Court reviewed the Denman/Schindler progeny, as well as a number of early last clear chance cases, including Buxton.(118) Turning its attention to Gibbard, the Court stated that that hat decision "clearly defined the term 'gross negligence' as 'last clear chance.'"(119) The court concluded its analysis with these words:
It is obvious that the term "gross negligence" as used in the guest statute was not limited to subsequent negligence, discovered negligence or peril, humanitarian doctrine, last clear chance doctrine, etc., for they would not be ordinarily involved in cases brought by a guest against the owner or a driver of the car in which he was riding. The very purpose of the guest act was to absolve an owner or driver from liability for negligence except where he is guilty of wanton and willful misconduct or gross negligence. Upon examination of the meaning of the term "gross negligence," as judicially defined prior to the enactment of the guest act, and upon consideration of the statute and the correlation therein of the term with that of "wanton and wilful misconduct," we must conclude that the term "gross negligence" means such a degree of recklessness as approaches wanton and willful misconduct.(120)
Similarly, in Johnson v. Firemont Canning Co., the court relied on the Denman definition of gross negligence in the guest passenger setting.(121)
Another guest passenger statute case, Riley v. Walters, held that "[g]ross negligence is such negligence as is characterized by wantonness or willfulness."(122) Other cases have also defined gross negligence using the the Gibbard definition of wilful and wanton misconduct. Illustrative is Wieczorek v. Merskin,(123) where the court stated:
Under the law of this State, gross negligence and ordinary negligence are of different character. The former is not a higher degree of the latter, for we do not subscribe to the doctrine of comparative negligence. . . . Ordinary negligence does not signify the wantonness or wilfulness that are necessary elements of gross negligence, which, however, does include ordinary negligence combined with a wilful and wanton disregard for public safety.(124)
Wieczorek has been cited in support of the proposition that ordinary negligence, coupled with wilful and wanton misconduct, is gross negligence, regardless of subsequent negligence.(125)
The standard jury instruction for gross negligence in the guest passenger statute context provided:
The terms "gross negligence or wilful and wanton misconduct" means more than the failure to use ordinary care. These terms mean conduct which shows (actual or deliberate intention to harm) (or) (a reckless disregard for the safety of others in the face of circumstances involving a high degree of danger.)(126)
3. Criminal Law Cases
Current Michigan case law establishes gross negligence as the requisite standard of culpability for the crime of involuntary manslaughter and employs a definition of that term that is identical with Gibbard's definition of wilful and wanton misconduct. For example, one case stated:
To convict of involuntary manslaughter, a defendant must have been grossly negligent. Gross negligence requires:
- Knowledge of a situation requiring the exercise of ordinary care and diligent to avert injury to another.
- Ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand.
- The omission to use such care and diligence to avert the threatened danger when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another.(127)
Another case expanded on this definition as follows:
In order to be convicted of involuntary manslaughter under these facts, the prosecution had to prove beyond a reasonable doubt (1) the existence of a legal duty; (2) that the defendant had the capacity, means, and ability to perform that duty; (3) that she wilfully neglected or refused to perform that duty; and (4) that the death . . . was the direct consequence of her failure to perform her duty. . . . Wilful neglect or gross negligence, is defined as (1) Knowledge that a situation existed requiring the exercise of ordinary care to prevent injury; (2) having the capacity, means, and ability to avoid the harm by the use of ordinary care; (3) failing to use ordinary care where it would have been apparent to an ordinary mind that harm would result from such failure.(128)
The Michigan Criminal Jury Instructions direct that gross negligence instructions be given in felonious driving and involuntary manslaughter cases.(129) In the second edition two instructions define gross oss negligence, one on "Degrees of Negligence"(130) for use in motor vehicle homicide cases, and "Gross oss Negligence"(131) to be used as appropriate. The instruction on "Degrees of of Negligence" provides:
(1) Gross negligence is an element of manslaughter with a motor vehicle; ordinary negligence is an element of negligent homicide; slight negligence is not a crime at all. Because of that, I need to tell you the differences between slight, ordinary, and gross negligence.
(2) Slight negligence means doing something that is not usually dangerous, something that only an extremely careful person would have thought could cause injury. In this case, if you find that the defendant was only slightly negligent, then you must find him not guilty.
(3) Ordinary negligence means not taking reasonable care under the circumstances as they were at the time. If someone does something that is usually dangerous, something that a sensible person would know could hurt someone, that is ordinary negligence. If the defendant did not do what a sensible person would have done under the circumstances, then that is ordinary negligence.
(4) [Give CJI2d 16.18 Gross Negligence.]
(5) The degree of negligence separates negligent homicide from manslaughter. For manslaughter, there must be gross negligence; for negligent homicide, there must be ordinary negligence. If the defendant was not negligent at all, or if he was only slightly negligent, then he is not guilty of either manslaughter or negligent homicide.
(6) The fact that an accident occurred or that someone was killed does not, by itself, mean that the defendant was negligent.(132)
The second instruction on "Gross Negligence" reads:
(1) Gross negligence means more than carelessness. It means willfully disregarding results to others that might follow from an act or failure to act. In order to find that the defendant was grossly negligent, you must find each of the following three things beyond a reasonable doubt:
(2) First, that the defendant know of the danger to another, that is, he knew there was a situation that required him to take ordinary care to avoid injuring another.
(3) Second, that the defendant could have avoided injuring another by using ordinary care.
(4) Third, that the defendant failed to use ordinary care to prevent injuring another when, to a reasonable person, it must have been apparent that the result was likely to be serious injury.(133)
The Committee on Standard Criminal Jury Instructions relies on the 1927 case of People v. Campbell, and subsequent case law upholding it, for its instruction on degrees of negligence.(134) The three-part test for Campbell's instruction on gross negligence finds support in People v. Orr, and other cases that have applied it consistently over the years.(135) An examination of the definition used by People v. Orr s it to be identical to the definition of wilful and wanton misconduct introduced five years earlier by Gibbard. The predecessor instruction in the first edition of the instructions was substantially the same.(116)
4. Definitions of Gross Negligence in Secondary Authorities
Eight opinions of the Michigan Attorney General since 1977 have mentioned the term "gross negligence."(137) In one of those opinions,(138) the Attorney General was asked to interpret the following ing statute:
[A school official] is not liable in a criminal action or for civil damages as a result of the administration [of medicine] except for an act or omission amounting to gross negligence or wilful and wanton misconduct.(139)
In response, the Attorney General offered the Denman/Schindler definition of gross negligence:
Gross negligence has been defined as an intentional failure to perform a manifest duty or a thoughtless disregard of the consequences as affecting life or property of another without the exercise of any effort to avoid them. Putt v. Grand Rapids & Indiana R. Co., 171 Mich 215; 137 NW 132 (1912).(140)
The Attorney General went on to cite Thomas v. Consumers Power Co.,(141) which applies the definition of wilful and wanton conduct set forth in Gibbard.
5. The Government Tort Liability Act's Definition of Gross Negligence
Only one statute which uses the term "gross negligence," the Government Tort Liability Act (GTLA),(142) includes its own definition of that term.(143) In response to the liability insurance crisis of the mid-1980s, the Michigan legislature enacted a package of tort reforms in 1986, including amendments to the Government Tort Liability Act (GTLA). The legislature retained most of the earlier statutory provisions for governmental immunity and liability originally enacted in 1964. In the context of this report, however, the most significant amendments to the GTLA are those found at M.C.L. § 691.1407, M.S.A. § 3.996(107). That section for the first time extended immunity to individual government officers and employees from tort liability "for injuries to persons or damages to property caused by the officer [or] employee . . . while in the course of employment . . . while acting on behalf of a governmental agency" if the officer or employee satisfies the following three-prong test:
(a) The officer [or] employee . . . is acting or reasonably believes he or she is acting within the scope of his or her authority.
(b) The governmental agency is engaged in the exercise or discharge of a governmental function.(144)
(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.(145)
As the Michigan Supreme Court observed in Dedes v. Asch,(146) "gross negligence is not defined in the [GTLA] as it was at common law. Instead, the the Legislature created a specific definition of the term in the statute itself."(147)
In marked contrast to the Burnett/Gibbard gross negligence definition, the GTLA has no last clear chance component. Typical of the cases applying the GTLA definition of gross negligence is Vermilya v. Dunham, a case where the plaintiff's eleven-year-old son was injured when a steel soccer goal was pushed over on him at school.(148) The plaintiffs sued the school and the principal, who were aware that the goals could be tipped over. The principal asked his maintenance supervisor to determine how the goals could be anchored, checked with the maintenance supervisor on his progress, made announcements in school instructing the children to stay off the goals, and disciplined students for climbing the goals.(149) On this state of the record, the court concluded that the the defendant had shown substantial concern and thus was entitled to a dismissal as a matter of law. Other cases decided under the GTLA definition are to like effect.(150)
a. The GTLA's Definition of Gross Negligence Compared with Gibbard's Definition of Wilful and Wanton Misconduct
What is the relationship, if any, between the GTLA definition of gross negligence and the Gibbard definition of wilful and wanton misconduct? Distinguishing "the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another"(151) -- the key phrase in the Gibbard definition of wilful and and wanton misconduct -- from "conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results" -- the GTLA definition -- presents an analytically thorny problem.
One commentator has suggested that in light of the similarity between the statutory definition of gross negligence and the common-law definition of willful and wanton misconduct, "cases that apply the 'willful and wanton misconduct' standard may be of some precedential value."(152) That hope seems to have been dashed, however, by the the Michigan Court of Appeals in Jamieson v. Luce-Mackinac-Alger-Schoolcraft Dist. Health Dep't,(153) where the court held that the mens rea for wanton and wilful misconduct is greater than the reckless substantial lack of concern for gross negligence, and by the Supreme Court in the Jennings decision, where the Court went to great lengths to make clear the distinctions among gross negligence, wilful conduct, and wilful and wanton conduct.
6. The Pressing Need for A Change in the Law
One commentator described the situation prior to 1994 in the following terms:
The concept of aggravated negligence is aggravating to the Michigan bench and bar. It is exasperating to the bar because the court decisions involving the concept appear to be in hopeless confusion and contradiction. It is annoying to the bench because attorneys lack basic understanding of the principals involved.(154)
Several Michigan Court of Appeals judges have discussed the undesirable state of Michigan's current common law of gross negligence. Some argued for change through legislative action. According to two panels of the Court of Appeals, "few aspects of negligence law have proven more frustrating to the courts of this state than the construction of the term 'gross negligence.'"(155) A 1970 panel stated that "[there are] many decisions on the the subject of gross negligence and wilful and wanton misconduct . . . [and] many [a]re irreconcilable."(156) A 1969 panel of the court of appeals stated:
Many of the authorities have expounded on the definition of gross negligence and some of the older cases seem to confuse more than clarify. No small amount of the confusion stems from the notion that gross negligence is higher in degree and greater in culpability than simple and ordinary negligence.(157)
In Pavlov v. Community Emergency Medical Services, Judge Kelly expressed his frustration:
[I]t is ludicrous to attempt to portray human suffering and trauma inflicted by the forces of nature or society as negligence in order to establish gross negligence as defined by case law. . . . I would be gratified to see the Legislature insert the government tort liability act definition of gross negligence in the present version of the emergency medical services act. . . . I agree with the plaintiff that the pre-Placek v. Sterling Heights . . . case law definitions of gross negligence are obsolete.(158)
Judge Neff echoed and expanded upon these comments:
In my view, the precedent negligence requirement of a gross negligence claim simply makes no sense in a comparative negligence context. I agree wholeheartedly with Judge Michael J. Kelley's concurring opinion in Pavlov that, in the context of emergency medical service, the only definition of gross negligence that makes sense is that provided by [the government tort liability act] . . . . If I were not bound by stare decisis and Administrative Order No. 1990-6, 436 Mich. lxxxiv, as extended by Administrative Order No. 1991-11, 439 Mich. cxliv, as extended by Administrative Order No. 1992-8, 441 Mich. lii, I would find that plaintiff properly pleaded the existence of gross negligence . . . . [The Supreme Court should] dispense with the obsolete and outdated definition of gross negligence set forth in Gibbard.(159)
Abandonment of the Gibbard definition of gross negligence in Michigan was clearly long overdue. The contributory negligence context in which this definition might have made sense at one time no longer existed. In the Government Tort Liability Act, the Legislature had drafted a definition that did not include last clear chance. Judges on the Court of Appeals questioned the continued use of a last clear chance approach. Commentators, including the Attorney General, had refused to state that Gibbard was still the law. The time was ripe for overruling Gibbard.
7. Gibbard Overruled
As previously noted, in 1994 the Michigan Supreme Court relieved some of the mounting pressure by expressly overruling Gibbard in Jennings v. Southwood.(160) In that case the Supreme Court observed that the major underpinnings of Gibbard had been eliminated in Michigan law. First, the adoption of a pure comparative negligence standard signaled the complete demise of both the defense of contributory negligence and the doctrine of last clear chance. Given that Gibbard's formulation of gross negligence was really the doctrine of last clear chance thinly disguised, the Court was forced to conclude that "[w]hile . . . Gibbard's gross negligence is a seventy-year-old doctrine, we must nevertheless discard it because it has outlived its usefulness."(161)
Having rejected Gibbard's definition of gross negligence, the Court next addressed the question of what the term "gross negligence or wilful misconduct" should mean in the context of the Emergency Medical Services Act (EMSA).(162) Starting with the observation that one of the major legislative purposes for the enactment of the EMSA was to limit emergency personnel's exposure to liability, the Court noted that Gibbard's definition of gross negligence failed to carry out that purpose because it permitted recovery upon a finding of ordinary negligence. Indeed, the Court observed, the Gibbard definition completely undercut the EMSA immunity provision, frustrating a primary legislative goal of encouraging persons to enter the emergency services field. Turning to the task of adopting an appropriate definition of gross negligence, the Court noted the lack of a settled gross negligence definition among the states. The Court continued:
While most jurisdictions acknowledge that gross negligence falls somewhere between ordinary negligence and an intentional act, they fail to agree on the exact definition. This renders comparison of the various standards quite cumbersome and laborious. Fortunately, such a review is unnecessary because our Legislature has already declared what type of conduct constitutes gross negligence.
The government tort liability act . . . confers varying degrees of immunity to governments, their agencies, and their agents. . . . Section 7 defines gross negligence as
conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.
[T]he GTLA and the EMSA share the common purpose of immunizing certain agents from ordinary negligence and permitting liability for gross negligence. Because the provisions have a common purpose, the terms of the provisions should be read in pari materia.
* * * *
Because these provisions should be read in pari materia, we deem it appropriate to use the definition of gross negligence as found in § 7 of the GTLA, as the standard for gross negligence under the EMSA.(163)
The Supreme Court thus cut the Gordian knot of how to define gross negligence by importing wholesale the GTLA definition of that term into the EMSA.
Given that the Legislature enacted both the EMSA and the GTLA gross negligence provisions in order to broaden the scope of immunity for certain protected classes of persons, the Supreme Court's use of the GTLA definition has merit. Putting aside for the moment the wisdom of the Supreme Court's decision to use the GTLA statutory definition of gross negligence to define the same term found in the EMSA,(164) as a matter of statutory construction whatever the the Legislature intended when it first used the term "gross negligence" in the EMSA in 1981, it seems problematic to attribute to that earlier legislature the intent of a subsequent Legislature that for the first time formulated a definition of gross negligence five years later for use in a different statute. Further drawing into question the soundness of borrowing the GTLA definition of gross negligence is the Court's own statement made in an opinion handed down the same day as Jennings, Dedes v. Asch,(165) "The [GTLA] statutory definition of gross negligence was was novel. At the time of its enactment, of the thirty-four Michigan statutes that employed the term, only [the GTLA] inserted its own definition."(166)
The term "gross negligence" is used by every state in a variety of legal settings,(167) although the term is rarely defined. The term gross negligence is frequently used in Good Samaritan statutes, which grant persons aiding others in emergency situations immunity from suit based on ordinary negligence in order to encourage the rendering of aid. Thirty-two states (including Michigan), the District of Columbia, and the Virgin Islands by statute except grossly negligent assistance from the general grant of immunity in Good Samaritan statutes.(168)
Another common use of the term "gross negligence" -- now of historical interest -- was automobile guest passenger statutes which prevented non-paying guests from suing the car's driver for the driver's negligent operation of the vehicle.(169) Under these statutes, guests typically were not permitted to to sue except in cases of gross negligence, willful or wanton misconduct, recklessness, or some similarly standard of conduct below ordinary negligence.(170) Today, most of these statutes have either been repealed or or struck down as unconstitutional.(171)
1. The Contexts in Which the Term "Gross Negligence" Is Used in Federal Statutes
The term "gross negligence" is used sixty-six times in the United States Code(172) and 101 times in the Code of Federal Regulations.(173) Except for a few provisions stating that the term "gross negligence" includes reckless and intentional conduct,(174) however, the term is only defined twice in these sources.(175) As is the case in Michigan, the subject matter of these statutes includes immunity from suit,(176) personal liability of corporate officers and directors,(177) and awards of special damages for particularly serious violations of a statute.(178) One federal law makes gross negligence a ground for the the revocation of a contract or lease with the government.(179)
2. Contexts in Which the Term "Gross Negligence" Is Used in Federal Case Law
In suits against state-level units of government under 42 U.S.C. §1983 that allege violations of an individual's federally-protected civil rights, in order to overcome the government's qualified immunity it is necessary to show that the violation arose out of the government's "policy, practice, or custom," and that policy, practice, or custom evidences "deliberate indifference, gross negligence, or recklessness," rather than mere negligence, towards the individual's rights.(180)
1. Contexts in Which the Term "Gross Negligence" Is Used in Uniform Laws, Model Acts, and Restatements
The term "gross negligence" is used sparingly in the Uniform Laws. Gross negligence appears only three times in Uniform and Model Acts prepared by the National Conference of Commissioners on Uniform State Law.(181) In the two versions of the Uniform Gifts to Minors Act, gross negligence is used as an exception to the general rule that custodians of gifts to minors who are not paid for their services are not personally liable for losses as a result of their negligence.(182) In the Uniform Health Care Information Act, gross oss negligence is the basis for an award of punitive damages.(183)
Turning to the Restatements, gross negligence never appears in the text of the black letter rules contained in any Restatement, but it is used in ten different comments in various Restatements.(184) The comments to the Restatement of Contracts state that hat "'gross negligence . . . is not well defined and is avoided [here] as it is in the Restatement, Second, of Torts."(185) The comments note the use of the term gross negligence in in guest statutes,(186) as a way to counter a contributory negligence defense,(187) as grounds for punitive damages,(188) as a ground for lowering the level of causation required in a tort action,(189) as grounds for seeking indemnification,(190) as a minimum level of culpability for an individual to be liable to a trespasser or guest,(191) as conduct from which trustees cannot be relieved of of liability,(192) and as grounds for limiting extraordinary contract remedies.(193)
Gross negligence, like many legal terms that are open textured and contextual -- such as "negligence," "proximate cause," "bad faith," "foreseeable," and "reasonable" -- does not lend itself to a bright-line definition that can be applied with certainty and predictability in all cases. Nevertheless, a uniform definition of the term would serve as a foundation upon which the courts could build a body of case law that eventually could be synthesized into workable rules that could then be used in a reasonably predictable manner.
The definition of gross negligence could be made uniform by comprehensive legislation enacted through one of four statutory vehicles. First, a general definition could be enacted applicable to all statutes where the term is not already defined. Second, a less ambitious variation on the first proposal would be to enact a general definition limited to the immunity setting. (Nearly half of all Michigan statutes using the term "gross negligence" fall within the immunity category.) As noted, the Michigan Supreme Court has taken a small step in this direction inJennings v. Southwood by incorporating the GTLA definition of gross negligence into the EMSA. Third, a single bill could be introduced that would provide a definition of gross negligence for each statute that contains the term. Fourth, separate bills, each amending a single law that uses the term "gross negligence" could be introduced.
The first suggestion could be adopted by amending Chapter 8 of the Michigan Compiled Laws. This chapter contains a number of definitions of general application in Michigan law, including definitions of "annual meeting," "grantor," "grantee," "inhabitant," "insane person," "land," "real estate," "real property," "month," "year," "oath," "person," "preceding," "following," "seal," "state," "United States," "written," "in writing," "general election," and "firearm."(194) The chapter also provides rules of statutory construction for for words in the singular and plural and gender specific pronouns, and establishes the general rule that public bodies must make decisions by at least a majority. Under the second suggestion, including in Chapter 8 a definition of gross negligence limited to immunity cases might also be an option.
Two state constitutional provisions have a direct bearing on the first three suggestions. The first is the "single object" clause which provides:
No law shall embrace more than one object, which shall be expressed in its title. No bill shall be altered or amended on its passage through either house so as to change its original purpose as determined by its total content and not alone by its title.(195)
The single object clause has two requirements: first, the title of an act must match its contents; and, second, an act must have only one "object."(196) The raison d'etre for the single object clause was threefold: (1) to insure that legislators do not pass laws without knowing what the act would do, (2) to insure that the public is generally made aware of what is included in a statute, and (3) to prevent the "logrolling" of bills that might not pass if presented separately, but which might pass if "bundled" into a single legislative package.(197)
Also potentially important is the "general revision" clause, which provides:
No general revision of the laws shall be made. The legislature may provide for a compilation of the laws in force arranged without alteration, under appropriate heads and titles.(198)
Arguably, if legislation has only a single object then it cannot violate Article IV, § 36's prohibition against a general revision of the laws. While no reported cases have addressed the general revision prohibition of the Constitution, a 1955 Attorney General's Opinion(199) did address this question under a substantially similar provision of the 1908 Constitution.(200) The opinion stated that because both the School Code of of 1955(201) and the Michigan Election Law(202) did not embrace more than a single object, they did not not constitute a general revision of the laws.(203) The single object clause, on the other hand, has been the the subject of much litigation.(204)
Of the four suggestions, the introduction of a single bill that either creates a uniform definition of gross negligence applicable to all Michigan statutes, or which creates a uniform definition limited to immunity cases, or which through a single bill specifically amends all statutes using the term, might be considered multiple object legislation, as well as a general revision of the laws. On the other hand, if the focus is the subject matter of the legislation, rather than the number of statutes affected by the legislation, then arguably neither the single object clause nor the general revision clauses of the Michigan Constitution would be violated.
As desirable as a single bill approach would be, if for no reason other than efficiency and uniformity of result, actual legislative practice indicates that the fourth option -- a separate bill for each statute using the term "gross negligence" -- may be the preferred, as well as constitutional, course to pursue. For example, in the 1978, 1990, and 1991 legislative sessions, the elimination of references to abolished courts in some ten, eight, and nineteen different statutes, respectively, was accomplished through ten, eight, and nineteen separate bills, respectively.(205)
(1) An earlier draft of this study report was prepared by Professor Kent D. Syverud, University of Michigan School of Law. The final report was prepared by Professor Kevin Kennedy, Detroit College of Law at Michigan State University. Professor Kennedy wishes to acknowledge the invaluable research assistance of Russell Meyers, Class of 1998, Detroit College of Law.
(2) Jennings v. Southwood, 446 Mich. 125, 521 N.W.2d 230 (1994).
(3) 225 Mich. 311, 196 N.W. 398 (1923).
(4) M.C.L. § 29.7c, M.S.A. § 4.559(7c) (firefighters); M.C.L. § 30.407, M.S.A. § 4.824(17)(5) (director of emergency management); M.C.L. § 30.411, M.S.A. § 4.824(21) (disaster relief personnel); M.C.L. § 324.20302(2), M.S.A. § 13A.20302(2) (hazardous waste spills, volunteers); M.C.L. § 41.711a, M.S.A. § 5.160(l) (ambulance drivers, attendants, police, firefighters); M.C.L. § 125.996, M.S.A. § 19.410(36) (mobile home vendors); M.C.L. § 324.8333(8), M.S.A. § 13A.8333(8) (pesticide users); M.C.L. § 324.20127, M.S.A. § 13A.20127(6) (various classes of persons responding to hazardous waste spills); M.C.L. § 300.201, M.S.A. § 13.1485 (owners of recreational land); M.C.L. § 316.605, M.S.A. § 13.1350(605) (lessors of hunting lands); M.C.L. § 317.176, M.S.A. § 13.1482(6)(recreational trespass); M.C.L. § 330.1427b, M.S.A. § 14.800(427b) (officers taking persons into protective custody); M.C.L. § 330.1439, M.S.A. § 14.800(439) (persons filing treatment petitions under Mental Health Code); M.C.L. § 333.6508, M.S.A. § 14.15(6508) (treatment of substance abusers); M.C.L. § 333.9203, M.S.A. § 14.15(9203) (free immunizations); M.C.L. § 333.20965, M.S.A. § 14.15(20965) (providers of emergency medical services); M.C.L. § 338.981, M.S.A. § 18.86(11) (mechanical contractors); M.C.L. § 339.604, M.S.A. § 18.425(604) (violations of occupational code); M.C.L. § 339.2715, M.S.A. § 18.425(2715) (optometrists); M.C.L. § 380.1178, M.S.A. § 15.41178 (administration of medication to students); M.C.L. §§ 445.1672, .1681, .1682, M.S.A. §§ 23.1125(72), (81), (82) (disclosures of information required by law, failure to service mortgage loans); M.C.L. § 450.2209, M.S.A. § 21.197(209) (nonprofit corporation officers); M.C.L. § 484.1604, M.S.A. § 22.1467(604)(emergency telegraph/telephone operators); M.C.L. § 487.1707, M.S.A. § 23.1189(707) (officers of financial institutions); M.C.L. § 500.2124, M.S.A. § 24.12124 (automobile insurers, issuance of policies); M.C.L. § 500.2130, M.S.A. § 24.12130 (automobile insurers, exchange of information); M.C.L. § 554.455, M.S.A. § 27.3178(241.25) (custodians of minor's account); M.C.L. § 559.154, M.S.A. § 26.50(154) (officers of condominium associations); M.C.L. § 600.5839, M.S.A. § 27A.5839 (architects, engineers and contractors); M.C.L. § 691.1407, M.S.A. § 3.996(107) (governmental units, employees); M.C.L. § 691.1501, M.S.A. § 14.563 (physicians and nurses, competitive sports); M.C.L. § 691.1502, M.S.A. § 14.563(12) (medical personnel, emergency care and immunizations); M.C.L. § 691.1504, M.S.A. § 14.563(14) (CPR volunteers); M.C.L. § 691.1505, M.S.A. § 14.563(15) (block parents); M.C.L. § 691.1507, M.S.A. § 14.563(17) (ski patrols); M.C.L. § 691.1522, M.S.A. § 14.16(102) (restaurant employees); M.C.L. § 700.173, M.S.A. § 27.5173 (personal representatives of estate); M.C.L. § 700.553, M.S.A. § 27.5553 (fiduciaries).See also MICH. CONST. art. V, § 10 (gross neglect of duty a ground for the governor to discharge officials).
(5) M.C.L. § 691.1407, M.S.A. § 3.996(107). This section was added in 1986.
(6) M.C.L. § 600.2945(d).
(7) See notes 8-52, infra.
(8) The term "gross negligence" was added to the following statutes in the year noted. M.C.L. § 41.711a, M.S.A. § 5.160(1)(1967) (a Good Samaritan act); M.C.L. § 300.201, M.S.A. § 13.1485 (1953) (liability of owners for recreational uses of their land); M.C.L. § 691.1501, M.S.A. § 14.563 (1963) (a Good Samaritan act); M.C.L. § 380.1178, M.S.A. § 15.41178 (liability of teachers administering medication to students; the Act was passed in 1971 as a codification of prior law); M.C.L. § 554.455, M.S.A. § 27.3178(241.25) (1960) (liability of custodians of gifts to minors). See also M.C.L. § 559.154, M.S.A. § 26.50(154) (liability of condominium association officers; passed in 1978 as a recodification of prior section M.C.L. § 559.13).
(9) M.C.L. § 41.711a, M.S.A. § 5.160(1)(emphasis added). This section was added in 1967.
(10) M.C.L. § 316.605, M.S.A. § 13.1350(605) ("A cause of action shall not arise for injuries to persons . . . unless the injuries were caused by the gross negligence or willful and wanton misconduct of the owner, tenant, or lessee"). This section was added in 1986.
(11) M.C.L. § 300.201, M.S.A. § 13.1485 ("No cause of action shall arise for injuries to any person. . . unless the injuries were caused by the gross negligence or wilful and wanton misconduct of the owner, tenant or lessee"). This Act was passed 1953; the section was amended in 1964 to include motor cycling and snowmobiling to the list of recreation uses, and again in 1987 to include u-pick farms.
M.C.L. § 317.176, M.S.A. § 13.1482(6) ("No cause of action shall arise for injuries to any person . . . unless the injuries were caused by the gross negligence or wilful and wanton misconduct of the owner, his lessee or agent"). This Act was passed in 1976.
(12) M.C.L. § 333.9203, M.S.A. § 14.15(9203) ("[A mass immunization official] is not liable to any person for civil damages as a result of an act or omission . . . except for gross negligence or wilful and wanton misconduct"). This Act was passed as a codification of prior law in 1978.
(13) M.C.L. § 691.1501, M.S.A. § 14.563 ("[Doctors and nurses] shall not be liable for civil damages as a result of acts or omissions . . . in rendering emergency care except acts or omissions amounting to gross negligence or willful and wanton misconduct"). This Act was passed 1963. This section was amended in 1964, adding the term "professional" to the definition of nurse, and again in 1987, adding sports situations.
(14) M.C.L. § 691.1502, M.S.A. § 14.563(12)("[Hospital personnel] shall not be liable for civil damages as a result of acts or omissions . . . in rendering emergency care except acts or omissions amounting to gross negligence or willful and wanton misconduct"). This section was added in 1975.
(15) M.C.L. § 691.1504, M.S.A. § 14.563(14)("[CPR volunteers] shall not be liable for civil damages as a result of an act or omission in rendering cardiopulmonary resuscitation, except an act or omission amounting to gross negligence or willful and wanton misconduct"). This section was added in 1986.
(16) M.C.L. § 691.1505, M.S.A. § 14.563(15)("[Block parents] shall not be liable for civil damages as a resulting from an act or omission in the rendering of that assistance except an act or omission amounting to gross negligence or willful and wanton misconduct"). This section was added in 1985.
(17) M.C.L. § 691.1507, M.S.A. § 14.563(17)("[Ski patrol members] shall not be liable for civil damages as a result of acts or omissions . . . in rendering the emergency care except acts or omissions amounting to gross negligence or willful and wanton misconduct"). This section was added in 1987.
(18) M.C.L. § 330.1472b, M.S.A. § 14.800(427b)(A peace officer . . . is not civilly liable . . . [unless he or she] engages in behavior involving gross negligence or wilful and wanton misconduct"). This section was added in 1978.
(19) M.C.L. § 330.1439, M.S.A. § 14.800(439)("A cause of action shall not be cognizable in a court of this state against a [petitioner] . . . unless the petition is filed as the result of an act or omission amounting to gross negligence or willful and wanton misconduct"). This section was added in 1986.
(20) M.C.L. § 380.1178, M.S.A. § 15.41178("[A school official] is not liable in a criminal action or for civil damages as a result of the administration [of medicine] except for an act or omission amounting to gross negligence or wilful and wanton misconduct"). This Act was passed as a codification of prior law in 1971; this section was amended in 1978 to include officials other than teachers.
(21) M.C.L. § 29.7c, M.S.A. § 4.559(7c)("[Firefighters] shall not be liable in a civil action for damages as a result of an act or omission by the person arising out of and in the course of the person's good faith rendering of that assistance unless the person's act or omission was the result of that person's gross negligence or wilful misconduct"). This section was added in 1984.
(22) M.C.L. § 324.20302(2), M.S.A. § 13A.20302(2)("[Hazardous waste volunteers] shall not be liable in a civil action for damages resulting from an act or omission arising out of and in the course of the volunteer's good faith rendering of that assistance. [This immunity] shall not apply to a volunteer whose act or omission was the result of the volunteer's gross negligence or willful misconduct"). The predecessor section (M.C.L. § 30.432, M.S.A. § 13.31(72)) was added in 1990, and was repealed and reenacted in 1994 as part of the Natural Resources and Environmental Protection Act, 1994 P.A. 451.
(23) M.C.L. § 30.411, M.S.A. § 4.824(21) ("Disaster relief workers], except in cases of willful misconduct, gross negligence, or bad faith .. shall not be liable for the death of or injury to persons, or for damage to property"). This Act was passed in 1976; this section was amended in 1990 to correct spelling and grammatical errors.
(24) M.C.L. § 333.20965, M.S.A. § 14.15(20965)("Unless an act or omission is the result of gross negligence or willful misconduct, the acts or omissions of [emergency medical technicians] do not impose liability . . . "). This section was added in 1990.
(25) M.C.L. § 41.711a, M.S.A. § 5.160(1). This section was added in 1967.
(26) M.C.L. § 30.407, M.S.A. § 4.824(17)("The director may issue a directive relieve the donor or supplier of voluntary or private assistance from liability for other than gross negligence in the performance of the service"). This Act was passed in 1976; this section was amended in 1990 to accommodate an administrative re-organization.
(27) M.C.L. § 324.8333(8), M.S.A. § 13A.8333(8)("A civil cause of action shall not arise for injuries to any person or property if [a pesticide user] was not grossly negligence, and [used the pesticides in compliance with the act]"). The predecessor section (M.C.L. § 286.576, M.S.A. § 12.340(26)) was added in 1988, and was repealed and reenacted in 1994 as part of the Natural Resources and Environmental Protection Act, 1994 P.A. 451.
(28) M.C.L. § 691.1522, M.S.A. § 14.16(102)("[A restaurant employee] shall not be liable for civil damages . . . unless the employee . . . was grossly negligence in his or her actions"). This Act was passed in 1978.
(29) M.C.L. § 324.20127(6), M.S.A. § 13A.20127(6)("This subsection shall not preclude liability for costs or damages as a result of gross negligence, including reckless, willful, or wanton misconduct, or intentional misconduct"). The predecessor section (M.C.L. § 299.612a, M.S.A. § 13.32(12a)) was added in 1990, and was repealed and reenacted as part of the Natural Resources and Environmental Protection Act, 1994 P.A. 451.
(30) M.C.L. § 484.1604, M.S.A. § 22.1467(605)("[A telephone company] shall not be liable for civil damages to any person as a result of an act or omission [necessary to comply with the statute] unless the act or omission amounts to gross negligence or willful and wanton misconduct"). This Act was passed in 1986.
(31) M.C.L. § 554.455, M.S.A. § 27.3178(241.25)("A custodian not compensated for his services is not liable for losses to the custodial property unless they result from his bad faith, intentional wrongdoing or gross negligence or from his failure to maintain the standard of prudence in investing the custodial property provided in this act"). This Act was passed in 1960.
(32) M.C.L. § 500.2130, M.S.A. § 24.12130 ("There shall be no civil liability on the part of, and a cause of action of any nature shall not arise against . . . [various individuals involved with the act] for acts or omissions, other than acts made with gross negligence or in bad faith with malice in fact, related to the exchange of claim information"). This section was added in 1979.
M.C.L. § 500.2124, M.S.A. § 24.12124("[Immunity from liability for furnishing requested information] shall not apply if a statement made is shown to have been made with gross negligence or in bad faith with malice in fact . . ."). This section was added in 1979.
(33) M.C.L. § 700.173, M.S.A. § 27.5172 ("After the final distribution of an intestate or testate estate, a will or another will if one is admitted to probate, shall not be admitted to probate, except if the personal representative or an interested party commits wilful fraud or gross negligence"). This Act was passed in 1978.
M.C.L. § 700.553, M.S.A. § 27.5553 ("When a fiduciary continues the business of a decedent or ward, the fiduciary . . . shall not be personally liable . . .[except for] his or her wilful fraud, gross negligence, or other wilful misconduct"). This Act was passed in 1978; this section was amended in 1979 to include creditors of continued businesses in the definition of creditor.
(34) See M.C.L. § 29.7c, M.S.A. § 4.559(7c)(firefighters); M.C.L. § 324.20302(2), M.S.A. § 13A.20302(2)(hazardous waste spill volunteers); M.C.L. § 41.711a, M.S.A. § 5.160(l)(ambulance and inhalator service); M.C.L. § 330.1439, M.S.A. § 14.800(439)(persons filing mental health commitment petitions); M.C.L. § 380.1178, M.S.A. § 15.41178 (school officials dispensing medicine); M.C.L. § 691.1501, M.S.A. § 14.563 (doctors and nurses in emergency and sports situations); M.C.L. § 691.1502, M.S.A. § 14.563(12) (hospital personnel); M.C.L. § 691.1504, M.S.A. § 14.563(14) (CPR volunteers); M.C.L. § 691.1522, M.S.A. § 14.16(102) (restaurant employees). See also M.C.L. § 30.411, M.S.A. § 4.824(21) (no liability "except in cases of willful misconduct, gross negligence, or bad faith"); M.C.L. § 554.455, M.S.A. § 27.3178(241.25) (no liability except for "bad faith, intentional wrongdoing or gross negligence"); M.C.L. § 500.2130, .2124, M.S.A. § 24.12130, .12124 (acts "made with gross negligence or in bad faith with malice in fact").
For examples of statutes with no good faith qualification, see M.C.L. § 30.407, M.S.A. § 4.824(17) (disaster assistance donors); M.C.L. § 324.8333(8), M.S.A. § 13A.8333(8) (pesticide users); M.C.L. § 324.20127(6), M.S.A. § 13A.20127(6) (governments and persons responding to hazardous waste releases); M.C.L. § 300.201, M.S.A. § 13.1485 (recreational users of land); M.C.L. § 316.605, M.S.A. § 13.1350(605) (hunters); M.C.L. § 317.176; M.S.A. § 13.1482(6) (recreational trespassers); M.C.L. § 333.6508, M.S.A. § 14.15(6508) (law enforcement officers); M.C.L. § 333.9203, M.S.A. § 14.15(9203) (mass immunization officials); M.C.L. § 333.20965, M.S.A. § 14.15(20965) (emergency medical technicians).
(35) See, e.g., M.C.L. § 333.6510, M.S.A. § 14.15(6510) (law enforcement officers placing persons in protective custody); M.C.L. § 380.1178, M.S.A. § 15.41178 (school officials administering medication).
(36) Jennings, 446 Mich. at 141.
(37) Jennings, 446 Mich. at 139.
(38) 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.
(39) M.C.L. § 450.2209, M.S.A. § 21.197(209)(A charter provision freeing directors from personal liability "shall not eliminate or limit the liability of a director for any of the following: . . . (ii) Acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of the law. . . . (vi) An act or omission that is grossly negligent"). This Act was passed in 1982; this section was amended in 1987 to deal with tax exempt corporations.
(40) M.C.L. § 559.154, M.S.A. § 26.50(154) ("The bylaws [of a condominium association] shall provide an indemnification clause . . . [but] shall exclude indemnification for wilful and wanton misconduct and for gross negligence"). This Act was passed in 1978 as a recodification of prior section M.C.L. § 559.13; this section was amended in 1982 to conform with property tax laws and make grammatical corrections.
(41) M.C.L. § 450.2209, M.S.A. § 21.197(209); M.C.L. § 559.154, M.S.A. § 26.50(154).
(42) M.C.L. § 600.5839, M.S.A. § 27A.5839 ("[The statute of limitations in actions arising from improvements to real property shall be six years] or 1 year after the defect is discovered or should have been discovered provided that the defect . . . is the result of gross negligence on the part of the contractor or licensed architect or professional engineer. However, no such action shall be maintained more than 10 years after the time of occupancy of the completed improvement . . ."). This section was added in 1967, and was amended to add the pertinent part in 1986.
(43) M.C.L. § 125.996, M.S.A. § 19.410(36) ("A manufacturer or dealer [of mobile homes] who knows or should have known that an alleged defect is covered by the warranty provided by this act and who willfully by gross negligence refuses or fails to take appropriate corrective action may be liable for treble damages"). This Act was passed in 1974.
(44) M.C.L. §§ 445.1680, .1681, M.S.A. §§ 23.1125(80), (81) ("[Any person bringing an action under this act may] recover actual damages resulting from a violation of this act, or $250.00, whichever is greater, together with reasonable attorney fees and the costs of bringing the action. . . . [I]f the licensee or registrant establishes by a preponderance of the evidence that the failure to comply with the act was not willful, intentional, or the result of gross or wanton negligence, the amount recovered . . . shall not exceed actual damages. . . . [I]f the commissioner determines that a licensee or registrant is, intentionally or as a result of gross or wanton negligence, not servicing mortgage loans in accordance with the terms of this act or the terms of the servicing contracts, the commissioner may appoint a conservator . . ."). This Act was passed in 1987.
(45) M.C.L. § 600.5839, M.S.A. § 27A.5839.
(46) M.C.L. § 125.996, M.S.A. § 19.410(36).
(47) M.C.L. § 445.1680, .1681, M.S.A. § 23.1125(80), (81).
(48) M.C.L. § 445.1672, M.S.A. § 23.1125(72) ("It shall be a violation of this act if a licensee or registrant [under the Mortgage Brokers, Lenders, and Servicers Lending Act] . . . (c) Intentionally or due to gross or wanton negligence, repeatedly fails to provide borrowers material disclosures of information as required by state or federal law"). This Act was passed in 1987.
M.C.L. § 487.1707, M.S.A. § 23.1189(707) ("The commissioner may issue an order removing a subject person of a license [under the Michigan Business and Industrial Development Corporation Act] if . . . (c) The act, violation, or breach of fiduciary duty either involves dishonesty on the part of the subject person or demonstrates the subject person's gross negligence with respect to the business of the licensee or a willful disregard for the safety and soundness of the licensee"). This Act was passed in 1986.
(49) M.C.L. § 339.2715, M.S.A. § 18.425(2713) ("An ocularist or apprentice shall not do any of the following: (a) commit an act of gross negligence in the practice of ocularism . . . "). This section was added in 1983.
(50) M.C.L. § 338.981, M.S.A. § 18.86(11)("The department may investigate the activities of a licensee [under the Forbes Mechanical Contractors Act] if the board finds that any of the following grounds exist: . . . (c) An act of gross negligence . . ."). This Act was passed in 1984.
(51) M.C.L. § 445.1672, M.S.A. § 23.1125(72).
(52) M.C.L. § 487.1707, M.S.A. § 23.1189(707).
(53) MICH. CONST. art. 5, § 10. The section provides:
The governor shall have power and it shall be his duty to inquire into the condition and administration of any public office and the acts of any public officer, elective or appointive. He may remove or suspend from office for gross neglect of duty or for corrupt conduct in office, or for any other misfeasance or malfeasance therein, any elective or appointive state officer, except legislative or judicial, and shall report the reasons for such removal or suspension to the legislature [emphasis added].
(54) Formerly codified at M.C.L. § 257.401.
(55) 394 Mich. 655, 232 N.W.2d 636 (1975).
(56) Formerly codified at M.C.L. § 2567.401, M.S.A. § 9.2101. Cases interpreting the statute can be found from as early as 1938 to as late as 1970. See Sargeson v. Yarabek, 24 Mich. App. 557, 180 N.W.2d 474 (1970); Thayer v. Thayer, 286 Mich. 273, 282 N.W. 145 (1938). The law provided that "no person, transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death, or loss, in case of accident, unless such accident shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator . . . ." M.C.L. § 257.401, M.S.A. § 9.2101.
(57) Former SJI 14.03 provided that in cases arising under the automobile guest statute "[t]he terms 'gross negligence or wilful and wanton misconduct' mean more than the failure to use ordinary care. These terms mean conduct which shows (actual or deliberate intention to harm) (or) (a reckless disregard for the safety of others in the face of circumstances involving a high degree of danger."
(58) Nationwide Mut. Fire Ins. v. Detroit Edison, 95 Mich. App. 62, 289 N.W.2d 879, 881 (1980).
(59) M.C.L. § 750.321, M.S.A. § 28.553.
(60) M.C.L. § 752.191, M.S.A. § 28.661.
(61) M.C.L. § 750.321, M.S.A. § 28.553.
(62) 52 Mich. 577, 579, 18 N.W. 365, 366 (1884).
(63) People v. Zak, 184 Mich. App. 1, 457 N.W.2d 59, 62 (1990), quoting People v. Sealy, 136 Mich. App. 168, 172-173, 356 N.W.2d 614 (1984). People v. Sealy in turn cited Wayne County Prosecutor v. Recorder's Court Judge, 117 Mich. App. 442, 446, 324 N.W.2d 43 (1982), and People v. Ogg, 25 Mich. App. 372, 386, 182 N.W.2d 570 (1970), in support of the proposition that gross negligence is required to convict of involuntary manslaughter.
(64) CJI2d 16.10; CJI 16:4:03 (1977).
(65) M.C.L. § 752.191, M.S.A. § 28.661 (emphasis added).
(66) See, e.g., People v. Sherman, 188 Mich. App. 91, 469 N.W.2d 19, 20 (1991).
(67) CJI2d 15.10; CJI 15:5:01 (1977).
(68) See National Mut. Fire Ins. Co. v. Detroit Edison Co., 95 Mich. App. 62, 289 N.W.2d 879, 880-882 (1980).
(69) McNees v. Cedar Springs Stamping Co., 184 Mich. App. 101, 457 N.W.2d 68, 70 (1990). The court stated, "This, if proved, is not mere negligence or even gross negligence. It is wilfully forcing an employee to work in the face of a known and certain danger with respect to the specific machine that caused the accident."
(70) See, e.g., Group Ins. Co. v. Czopek, 440 Mich. 590, 489 N.W.2d 444, 454 n. 14 (1992); Gruett v. Total Petroleum, 182 Mich. App. 301, 451 N.W.2d 608, 609 (1989).
(71) See, e.g., Rouch v. Enquirer & News of Battle Creek, 184 Mich. App. 19, 457 N.W.2d 74, 83 (1990) (court's use of the term); People v. Crawford, 187 Mich. App. 344, 467 N.W.2d 818, 823 (1991) (quoting a prosecutor who used the term).
(72) See, e.g., Gibbard v. Cursan, 225 Mich. 311, 196 N.W. 398 (1923).
(73) See Placek v. Sterling Heights, 405 Mich. 638, 275 N.W.2d 511 (1979)(adopting pure comparative negligence). See also Callesen v. Grand Trunk W. Ry. Co., 175 Mich. App. 252, 437 N.W.2d 372 (1989); Petrove v. Grand Trunk W. Ry. Co., 437 Mich. 31, 464 N.W.2d 711 (1991) (rejecting the last clear chance doctrine).
(74) See, e.g., Gibbard v. Cursan, 225 Mich. 311, 319, 332-333, 196 N.W. 398 (1923).
(75) See, e.g., Hoag v. Paul C. Chapman & Sons, Inc., 62 Mich. App. 290, 233 N.W.2d 530, 535 (1975), quoting Gibbard v. Cursan, 225 Mich. 311, 322, 196 N.W. 398 (1923).
(76) See, e.g., Gibbard v. Cursan, 225 Mich. 311, 319, 320-321, 196 N.W. 398 (1923).
(77) WILLIAM PROSSER & W. PAGE KEETON, HANDBOOK ON THE LAW OF TORTS §34, at 215 (5th ed. 1984)[hereinafter PROSSER & KEETON].
(78) Conway v. O'Brien, 111 F.2d 611 (2d Cir. 1940).
(79) PROSSER & KEETON, supra note 77, at §34.
(80) Wilson v. Brett, 11 M. & W. 113, 152 Eng. Rep. 737 (1843).
(81) Grill v. General Iron Screw Collier Co., 1866, L.R. 1 C.P. 600.
(82) City of Lanark v. Dougherty, 38 N.E. 892 (Ill. 1894).
(83) Atchison, Topeka & Santa Fe Ry. v. Henry, 45 P. 576 (Kan. 1896).
(84) Model Good Samaritan Food Donation Act, 42 U.S.C. § 12672(b)(7) (West 1993) (defining gross negligence as "voluntary and conscious conduct by a person with knowledge (at the time of the conduct) that the conduct is likely to be harmful to the health or well being of another person").
(85) Copyright Regulations, 19 C.F.R. Part 171, App. B (1993)(defining a violation as grossly negligent "if it results from an act or acts (of commission or omission) done with actual knowledge of or wanton disregard for the offender's obligations under the statute").
(86) M.C.L. § 691.1407, M.S.A. § 3.996 (107)(2)(c)(gross negligence is "conduct so reckless as to demonstrate lack of concern for whether an injury results").
(87) Nishiyama v. Dickson County, 814 F.2d 277, 282 (6th Cir. 1987)(gross negligence is where a person "intentionally does something unreasonable with disregard to a known risk or a risk so obvious that he must be assumed to have been aware of it, and of a magnitude such that it is highly probable that harm will follow").
(88) Burk Royalty Co. v. Walls, 616 S.W.2d 911 (Tex. 1981)(gross negligence requires a "conscious indifference" by the defendant to the plaintiff's rights, welfare, and safety).
(89) Ryan v. Foster & Marshall, Inc., 556 F.2d 460, 464 (9th Cir. 1977)(gross negligence in Oregon is characterized by conscious indifference to or reckless disregard of the right's of others).
(90) Glaab v. Caudill, 236 So.2d 180, 183-185 (Fla. App. 1970) ("Gross negligence is that act or omission which a reasonable, prudent man would know would probably and most likely result in injury to another. . . . It presupposes the existence of circumstances which together constitute an 'imminent' or 'clear and present' danger amounting to more than the usual peril").
(91) Schindler v. Milwaukee, L.S. & W. Ry. Co., 87 Mich. 400, 49 N.W. 670 (1891).
(92) Schindler, 49 N.W. at 674.
(93) Id., 49 N.W. at 672.
(94) Id., 49 N.W. at 673, 674.
(95) Id., 49 N.W. at 674.
(96) Id., 49 N.W. at 676.
(97) Id., 49 N.W. at 676.
(98) Id., 49 N.W. at 677.
(99) Id., 49 N.W. at 677.
(100) 85 Mich. 387, 48 N.W. 565 (1891).
(101) Id., 48 N.W. at 567.
(102) See, e.g., Frost v. Milwaukee & N.R. R. Co., 96 Mich. 470, 56 N.W. 19, 22 (1893); Putt v. Grand Rapids & I. Ry. Co., 171 Mich. 215, 137 N.W. 132, 136 (1912); Good Roads Const. Co. v. Port Huron, St. C. & M. C. Ry. Co., 173 Mich. 1, 138 N.W. 320, 324-325 (1912); Wexel v. Grand Rapids & I. Ry. Co., 157 N.W. 15, 17 (1916); Vought v. Michigan United Traction Co., 160 N.W. 631, 634 (1916); Simon v. Detroit United Ry., 162 N.W. 1012, 1012 (1917).
(103) 134 Mich. 139, 145-46, 95 N.W. 1073, 1075 (1903).
(104) 138 Mich. 532, 101 N.W. 817 (1904).
(105) See Richter v. Harper, 95 Mich. 225, 54 N.W. 768, 769 (1893) (applying the e last clear chance doctrine and rejecting a gross negligence exception); LaBarge v. Pere Marquette R. Co., 134 Mich. 139, 85 N.W. 1073, 1075 (1903) (applying the last clear chance doctrine and rejecting a gross negligence exception).
(106) Buxton v. Ainsworth, 138 Mich. 532, 537, 101 N.W. 817, 818 (1904).
(107) 157 Mich. 596, 133 N.W. 504 (1911).
(108) Gibbard v. Cursan, 225 Mich. 311, 196 N.W. 398 (1923).
(109) 225 Mich. at 319-20 (emphasis in original, citations omitted).
(110) 225 Mich. at 320-21, 332-333.
(111) 225 Mich. at 322.
(112) See, e.g., Patton v. Grand Trunk W. Ry. Co., 236 Mich. 173, 210 N.W. 309, 311 (1926); Graves v. Dachille, 43 N.W.2d 64, 68 (Mich. 1950).
(113) 363 Mich. 128, 108 N.W.2d 881, 883 (1961).
(114) 57 Mich. App. 59, 225 N.W.2d 184 (1974).
(115) McKeever, 225 N.W.2d at 186.
(116) See, e.g., Union Trust Co. v. Detroit, G.H. & M. Ry., 239 Mich. 97, 214 N.W. 166, 167-168 (1927); Finkler v. Zimmer, 258 Mich. 336, 241 N.W. 851, 852 (1932); Agrenowitz v. Levine, 298 Mich. 18, 20-21, 298 N.W. 388 (1941); Conant v. Bosworth, 332 Mich. 51, 55, 50 N.W.2d 842, 845 (1952); Richardson v. Grezeszak, 358 Mich. 205, 208, 219, 99 N.W.2d 648, 650, 655 (1959); Shumko v. Center, 363 Mich. 504, 511-12, 109 N.W.2d 854, 857-58 (1961); LaCroix v. Grand Trunk Western R.R. Co., 379 Mich. 417, 152 N.W.2d 656 (1967); Zeni v. Anderson 56 Mich. App. 283, 224 N.W.2d 310 (1974); Hoag v. Paul C. Chapman & Sons, Inc., 62 Mich. App. 290, 233 N.W.2d 530, 536 (1975).
(117) 256 Mich. 499, 240 N.W. 55 (1932).
(118) Oxenger, 240 N.W. at 56-57.
(119) Id., 240 N.W. at 57.
(120) Id., 240 N.W. at 57.
(121) 270 Mich. 524, 259 N.W. 660, 662 (1935).
(122) 277 Mich. 620, 270 N.W. 160 (1936).
(123) 308 Mich. 145, 13 N.W.2d 239 (1944).
(124) Wieczorek, 13 N.W.2d at 240.
(125) See, e.g., McKeever v. Galesburg Speedway, 57 Mich. App. 59, 225 N.W.2d 184, 186 (1974).
(126) SJI 14.03.
(127) People v. Zak, 184 Mich. App. 1, 457 N.W.2d 59, 62 (1990), quoting People v. Sealy, 136 Mich. App. 168, 172-173, 356 N.W.2d 614 (1984). The case quoted cited Wayne Court Prosecutor v. Recorder's Court Judge, 117 Mich. App. 442, 446; 324 N.W.2d 43 (1982) and People v. Ogg, 26 Mich. App. 372, 386; 182 N.W.2d 570 (1970), in support of the proposition that gross negligence is required to convict of involuntary manslaughter, and People v. Orr, 243 Mich. 300, 307, 220 N.W.2d 777 (1928), and CJI 16:4:08 in support of the definition of gross negligence used.
(128) People v. Moye, 194 Mich. App. 373, 487 N.W.2d 777, 778-779 (1992).
(129) CJI2d 15.10, CSJ 15:5:01 (felonious driving); CJI2d 16.10, CSJ2d 16.12, 16.13, CJI 16:4:03, 16:4:04, 16:4:07, 16:4:08 (involuntary manslaughter).
(130) CJI2d 16.17.
(131) CJI2d 16.18.
(132) CJI2d 16.17.
(133) CSJ2d 16.18.
(134) People v. Campbell, 237 Mich. 424, 429, 212 N.W. 97 (1927), which stated in pertinent part, "Ordinary negligence is based on the fact that one ought to have known the results of his acts; while gross negligence rests on the assumption that he did know but was recklessly or wantonly indifferent to the results."
(135) See People v. Orr, 243 Mich. 300, 307, 220 N.W. 777 (1928); People v. Retelle, 173 Mich. App. 196, 199, 433 N.W.2d 401 (1988).
(136) CJI 16:4:05 provides:
(1) Gross negligence means more than carelessness. It means wilful, wanton, and reckless disregard of the consequences which might follow from a failure to act and indifference to the rights of others. (2) In order to find that the defendant was guilty of gross negligence, you must find beyond a reasonable doubts: (3) First, that the defendant knew of the danger to another, that is, that this was a situation requiring ordinary care and diligence to avoid injuring another. (4) Second, that the defendant had the ability to avoid harm to another by exercise of such ordinary care. (5) Third, that the defendant failed to use such care and diligence to prevent the threatened danger when, to the ordinary mind, it must have been apparent that the result was likely to cause serious harm to another.
(137) Op. Att'y Gen. 6760, 1993 Mich. AG LEXIS 18 (1993) (addressing M.C.L. §338.981, M.S.A. §18.86(11), mechanical contractors)); Op. Att'y Gen. 6579, 1989 Mich. AG LEXIS 23 (1989) (addressing M.C.L. §691.1407, M.S.A. §3.996(107), government units, employees); Op. Att'y Gen. 6569, 1989 Mich. AG LEXIS 23 (1989)(addressing M.C.L. §691.1407, M.S.A. §3.996(107), government units, employees); Op. Att'y Gen. 6476, 1987 Mich. AG LEXIS 9 (1987)(addressing M.C.L. §380.1178, M.S.A. §15.41178, administration of medicine to students); Op. Att'y Gen. 6362, 1985-1986 Op. Att'y Gen. Mich. 284 (1986)(addressing M.C.L. §691.1505, M.S.A. §14.563(15), block parents); Op. Att'y Gen. 5741, 1979-1980 Op. Att'y Gen. Mich. 883 (1980)(addressing M.C.L. §30.411, M.S.A. §4.824(21) as passed in 1976); Op. Att'y Gen. 5679, 1979-1980 Op. Att'y Gen. Mich. 709 (1980)(addressing M.C.L. §380.1178, M.S.A. §15.41178, administration of medicine to students); Op. Att'y Gen. 6362, 1977-1978 Op. Att'y Gen. Mich. 689 (1978)(addressing common law of liability of governments towards volunteers).
(138) Op. Att'y Gen. 5679, 1979-1980 Op. Att'y Gen. Mich. 709, 1980 Mich. AG LEXIS 154 (1980)(addressing M.C.L. §380.1178, M.S.A. §15.41178, administration of medicine to students).
(139) M.C.L. § 380.1178; M.S.A. § 15.41178.
(140) Op. Att'y Gen. 5679, 1979-1980 Op. Att'y Gen. Mich. 709, 1980 Mich. AG LEXIS 154 at *13 (1980).
(141)58 Mich. App. 486, 500-501, 228 N.W.2d 786 (1975).
(142)M.C.L. § 691.1407, M.S.A. § 3.996(107).
(143) The general subject of governmental tort immunity in general is beyond the scope of this study. For a thorough treatment of that subject, see RONALD E. BAYLOR, GOVERNMENTAL IMMUNITY IN MICHIGAN (Institute of Continuing Legal Education 1995)[hereinafter BAYLOR].
(144) The Legislature for the first time defined the term "governmental function" in 1986 as "an activity which is expressly or impliedly mandated or authorized by constitution, statute, local charter or ordinance, or other law." M.C.L. § 691.1401(f), M.S.A. § 3.996(101)(f). The Legislature thus substituted a statutory definition for the common-law definition provided by the Michigan Supreme Court two years earlier in Ross v. Consumers Power Co., 420 Mich. 567, 363 N.W.2d 641 (1984). The Legislature also rejected the Ross "discretionary/ministerial" test by adding that statutory immunity is conferred "without regard to the discretionary or ministerial nature of the conduct in question." M.C.L. § 691.1407(2), M.S.A. § 3.996(107)(2).
The broad definition adopted by the Legislature is just as sweeping as the one formulated by the Supreme Court in Ross. Negative evidence of the breadth of the definition is found in the dearth of cases in which a successful challenge to conduct as being outside a governmental function has been made. See, e.g., Adam v. Sylvan Glynn Golf Course, 197 Mich. App. 95, 494 N.W.2d 791 (1992)(plaintiff's argument that cross-country skiing is not a governmental function rejected); BAYLOR, supra note 143, at 3-7.
(145) M.C.L. § 691.1407)2)(a)-(c), M.S.A. § 3.996(107)(2)(a)-(c).
(146) 446 Mich. 99, 521 N.W.2d 488 (1994).
(147) Dedes v. Asch, 446 Mich. 99, 109, 521 N.W.2d 488 (1994). In Dedes, the Court held that the definite article "the" before "proximate cause" did not provide governmental tort immunity in cases where the government employee was a proximate cause of the plaintiff's injuries.
(148) 195 Mich. App. 79, 489 N.W.2d 496, 498 (1992).
(149) Vermilya, 489 N.W.2d at 499.
(150) See, e.g., Reese v. County of Wayne, 193 Mich. App. 215, 483 N.W.2d 671 (1992)(county has no duty to remove snow and ice from the roads, but any actions taken to increase the dangerousness of the road would constitute gross negligence); Tallman v. Markstrom, 180 Mich. App. 141, 446 N.W.2d 618 (1989)(allegations of a failure to take any safety precautions in a high school woodshop class where power tools were used could be basis for jury finding of gross negligence since omissions as well as positive acts can constitute gross negligence).
(151) Gibbard v. Cursan, 225 Mich. 311, 322, 196 N.W. 398 (1923).
(152) BAYLOR, supra note 143, § 5.11, at 5-16.
(153) 198 Mich. App. 103, 497 N.W.2d 551 (1993).
(154) Grant H. Morris, Gross Negligence in Michigan -- How Gross Is It?, 16 WAYNE L. REV. 457 (1970).
(155) Pavlov v. Community Emergency Medical Service, Inc., 195 Mich. App. 711, 718, 491 N.W.2d 874 (1992); Jennings v. Southwood, 198 Mich. App. 713 (1993).
(156) Sargeson v. Yarabek, 24 Mich. App. 577., 180 N.W.2d 474, 476 (1970).
(157)Id.
(158) Pavlov v. Community Emergency Medical Service, Inc., 195 Mich. App. 711, 724, 491 N.W.2d 874 (1992)(Kelly, J., concurring).
(159) Jennings v. Southwood, 198 Mich. App. 713 (1993). Administrative Order No. 1990-6, 436 Mich. lxxxiv, referred to by Judge Neff provides in part that:
A panel of the Court of Appeals must follow the rule of law established by a prior published decision of the Court of Appeals issued on or after November 1, 1990. The prior published decision remains controlling authority unless reversed or modified by the Supreme Court or a special panel of the Court of Appeals [with twelve judges and the Chief Judge who rehear the case] as described infra.
(160) 446 Mich. 125, 521 N.W.2d 230 (1994).
(161) Jennings, 446 Mich. at 132.
(162) M.C.L. § 333.20965(1), M.S.A. § 14.15(20965)(1).
(163) Id., 446 Mich. at 136-37 (footnotes omitted).
(164) Elsewhere in the Jennings opinion, the Court took a different tack when confronted with the issue of defining "wilful misconduct." "When a statute fails to define a term, we will construe it 'according to its common and approved usage . . . .'" 446 Mich. at 139.
(165) 446 Mich. 99, 521 N.W.2d 488 (1994).
(166) Id., 446 Mich. at 110 n.9.
(167) For example, for a list of states which use the term "gross negligence" in the context of Good Samaritan statutes, see Frank J. Helminski, Note, Good Samaritan Statutes: Time For Uniformity, 27 WAYNE L. REV. 217, 252-267 (1980). Each of the seventeen states which does not use gross negligence in a Good Samaritan statute does use it in some other context. See, e.g., ALA. CODE § 6-5-332.1 (granting immunity to persons assisting or advising as to mitigation of effects of discharge of hazardous waste; Alabama uses the term 22 times in its statutes); COLO. REV. STAT. ANN. § 2-2-403 (West) (indemnifying members of the legislature; Colorado uses the term 28 times in its statutes); COLO. CONST. art. 27, § 6 (personal liability of Great Outdoors Colorado Trust Fund; the only constitutional usage of the term found in the research for this report); FLA. STAT. ANN. § 61.14 (West) (liability of banks for making payments pursuant to child support order; Florida uses the term 45 times in its statutes); GA. CODE ANN. § 10-1-784 (dealer liability under Motor Vehicle Warranty Act; Georgia uses the term 35 times in its statutes); ILL. REV. STAT. ch. 20, para. 405/64.1 (Grounds for excluding state employees from future coverage under state employee's auto insurance plan; Illinois uses the term 38 times in its statutes); IOWA CODE ANN. § 2C.20 (West) (liability of state ombudsman; Iowa uses the term 29 times in its statutes); MASS. GEN. LAWS ANN. ch. 21, § 27 (West) (liability of hazardous waste cleanup volunteers; Massachusetts uses the term 47 times in its statutes); MINN. STAT. ANN. § 18.78 (West) (liability of state officials for trespass while enforcing Noxious Weed Law; Minnesota uses the term 24 times in its statutes); MISS. CODE ANN. § 1717-57 (liability of hazardous waste cleanup officials; Mississippi uses the term 26 times in its statutes); NEB. REV. STAT. § 1-137 (grounds for disciplining accountants; Nebraska uses the term 32 times in its statutes); N.J. STAT. ANN. § 2A:18-61.1 (West) (gross negligence in allowing damages to premises is lawful ground for evicting tenant; New Jersey uses the term 43 times in its statutes); OHIO REV. CODE § 13111.011 (Page) (liability of banks making payments for a mechanic's lien; Ohio uses the term 13 times in its statutes); OR. REV. STAT. § 30.115 (guest statutes for aircraft and watercraft; Oregon uses the term 57 times in its statutes); TEX. CODE ANN. AGRIC. CODE § 143.103 (West) (immunity from liability for cars striking animals; Texas uses the term 64 times in its statutes); UTAH CODE ANN. § 2-4-11 (court costs in suits against airport zoning board of adjustments allowed only in cases of board's gross negligence; Utah uses the term 24 times in its statutes); W. VA. CODE § 6-3-la (liability of sheriff for acts of "reserve" deputies; West Virginia uses the term 32 times in its statutes); WIS. STAT. ANN. § 50.05 (West) (personal liability of receivers of licensed residential facilities placed in receivership; Wisconsin uses the term 16 times in its statutes).
(168) See Frank J. Helminski, Note, Good Samaritan Statutes: Time For Uniformity, 27 WAYNE L. REV. 217, 252-267 (1980). The author notes that gross negligence is used in Good Samaritan statutes in Alaska, Arizona, Arkansas, California, Connecticut, Delaware, Hawaii, Idaho, Indiana, Kansas, Louisiana, Maine, Maryland, Michigan, Missouri, Montana, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Vermont, Virginia, Washington, Wyoming. Of these states, 19 (as well as the Virgin Islands), have Good Samaritan statutes which use the terms gross negligence and willful and wanton misconduct in conjunction with each other: California, Connecticut, Delaware, Hawaii, Indiana, Kansas, Maine, Michigan, Missouri, Montana, New Hampshire, North Carolina, North Dakota, Oklahoma, Rhode Island, South Carolina, South Dakota, Virginia, Washington, while the remaining 13 states and the District of Columbia use the term by itself. Three other states use the term willful and wanton conduct alone: Illinois, Ohio, Texas. The term gross negligence is also used in the Good Samaritan statutes of the Canadian provinces of Alberta, British Columbia, Newfoundland, and Saskatchewan. At least nine of the states that do not use the term gross negligence in their Good Samaritan statutes (which every state and all but two Canadian provinces have) do so because they grant absolute immunity to Good Samaritans rather than because they are using another term in place of the term gross negligence: Alabama, Colorado, Georgia, Massachusetts, Nebraska, New Jersey, Utah, West Virginia, Wisconsin.
Helminski's Note overlooked one of Kentucky's Good Samaritan statutes, KY. REV. STAT. ANN. § 39.433. This statute grants immunity to state employees or agents in disasters or emergency situations except in cases of gross negligence. This means that, in all, 33 states and the District of Columbia have Good Samaritan statutes which use the term gross negligence.
(169) PROSSER & KEETON, supra note 77, § 34, at 215.
(170) Id. at 215.
(171) Id. at 216-217.
(172) 5 U.S.C. § 8321 (federal employee retirement system officers); 5 U.S.C. § 8505 (payments to state unemployment funds); 7 U.S.C. § 87b (violations of grain standards); 7 U.S.C. § 1314e (tobacco marketing quotas); 7 U.S.C. § 1596 (violation of seed regulations); 10 U.S.C. §§ 1074a, 1084 (military medical and dental care eligibility); 10 U.S.C. § 2350e (NATO AWACS officers); 12 U.S.C. § 209 (national bank immunity from liability); 12 U.S.C. § 1749bbb-12 (housing loan intermediary banks and agents); 12 U.S.C. § 1787 (federal credit union insurance); 12 U.S.C. § 1821 (FDIC officers); 12 U.S.C. §§ 1829b, 1955 (bank record keeping); 12 U.S.C. § 4621 (conservators of government-sponsored banks); 15 U.S.C. § 80a-17 (investment company officers); 15 U.S.C. § 1607 (consumer credit cost disclosures); 15 U.S.C. § 2053 (Consumer Products Safety Commission members); 16 U.S.C. § 583j-2 (Forest Foundation officers); 16 U.S.C. § 142le (responses to whale beachings); 16 U.S.C. § 3703 (officers of National Fish and Wildlife Foundation); 17 U.S.C. § 106A (copyright attribution); 18 U.S.C. § 793, App. 4 § 2M3.4 (criminal gathering, transmitting or losing of defense information); 19 U.S.C. §§ 1584, 1592, 1594, 1621 (customs fraud and inaccuracies); 19 U.S.C. § 2112 (negotiations over nontariff trade barriers); 19 U.S.C. § 2314 (customs officers); 20 U.S.C. § 1082 (Federal Family Education Loan Program officers); 20 U.S.C. § 5509 (National Environmental Education and Training Foundation officers); 25 U.S.C. § 450m (grounds for not granting contracts with Indian tribes); 26 U.S.C. § 7431 (IRS privacy violations); 29 U.S.C. § 1574 (job training partnership act corruption); 30 U.S.C. § 1235 (state mining reclamation programs); 33 U.S.C. §§ 1321, 2703, 2704, 2712 (oil and hazardous waste liability); 36 U.S.C. § 5203 (National Fallen Firefighter's Foundation officers); 37 U.S.C. §§ 204, 206, 310, 403 (military pay); 40 U.S.C. § 333 (construction industry safety); 42 U.S.C. §§ 1395h, 1395u (private administrators of Medicare payments); 42 U.S.C. § 3796a (police officer death benefits); 42 U.S.C. § 4082 (flood insurance company officers); 42 U.S.C. §§ 9607, 9619 (hazardous waste liability); 42 U.S.C. § 12672 (charity food donors); 43 U.S.C. § 1334 (off-shore oil drilling leases); 43 U.S.C. § 1653 (Alaska pipeline liability); 45 U.S.C. §§ 6, 12, 13, 34, 43, 64a, 438 (railroad safety); 46 U.S.C. §§ 2302, 4705 (negligent operation of ships and barges); 49 U.S.C. § 521 (penalties under special Dep't of Transportation authority); 49 U.S.C. App. § 26 (railroad safety).
(173) 7 C.F.R. § 723.216 (tobacco quota transfers); 7 C.F.R. §§ 906.61, 907.89, 908.89, 911.70, 915.70, 916.70, 920.69, 921.70, 922.70, 923.70, 924.70, 925.68, 928.70, 929.75, 931.70, 948.90, 955.85, 958.86, 959.90, 965-90, 966.90, 971.90, 979.90, 985.68, 987.77, 1036.119, 1049.119, 1065.119, 1207.365, 1207.546, 1240.124 (agricultural marketing service committee members); 10 C.F.R. § 10.11 (criteria for granting nuclear information top secret clearances); 10 C.F.R. § 791.36 (grounds for withdrawal of electric car R&D loan guarantees); 12 C.F.R. § 204.7 (failure to maintain banking reserves); 12 C.F.R. § 265.11 (delegation of authority to Federal Reserve Banks); 13 C.F.R. § 121.1305 (self-certification of small business status); 17 C.F.R. § 230.461 (SEC effective dates of rules); 19 C.F.R. §§ 122.175, 162.73, 162.77, Pt. 171 (App. B) (customs violation penalties); 20 C.F.R. § 360.25 (R.R. Retirement Board privacy violations); 20 C.F.R. § 652.8 (state employment service administration standards); 23 C.F.R. §§ 360.25, 652.8 (granting and monitoring highway construction contracts); 24 C.F.R. §§ 905.140, 967.308 (certification of HUD projects and officials); 25 C.F.R. § 271.74 (contracts with Indian tribes); 25 C.F.R. § 276.15 (grants to Indian tribes); 26 C.F.R. § 1.401-12 (IRS employee benefit trust qualifications); 26 C.F.R. § 301.7701-2 (IRS association standards); 27 C.F.R. § 194.111 (violations of liquor regulations); 28 C.F.R. § 32.6 (death and disability benefits for police officers); 30 C.F.R. §§ 250.10, 282.13 (grounds for suspending off-shore oil drilling); 31 C.F.R. § 560.701 (transactions with Iranian assets), 32 C.F.R. Pt. 155 (App. A) (defense industry security clearances); 32 C.F.R. §§ 536.40, 537.22 (claims involving the U.S. in under the Uniform Code of Military Justice); 32 C.F.R. §§ 644.86, 644.225 (military real estate law); 32 C.F.R. § 757.18 (claims against the Navy); 33 C.F.R. § 25.705 (Coast Guard claims not payable); 37 C.F.R. § 1.765 (discovery rules in patent hearings); 38 C.F.R. § 21.4202 (VA vocational rehabilitation and education overcharges); 40 C.F.R. Pt. 35, Subpt. E, App. C-1 (consulting engineering agreements); 40 C.F.R. §§ 123.27, 501.17 (requirements for state environmental enforcement authority); 40 C.F.R. § 761.135 (enforcement of PCB regulations); 42 C.F.R. §§ 36.115, 36.233 (Indian health grants and contracts); 43 C.F.R. § 29.3 (Alaska pipeline liability fund officers); 46 C.F.R. §§ 35.01-30, 167.65-3, 185.17-1 (negligent operation of ships); 46 C.F.R. pt. 315 § 2, Pt. 318 § 8 (agreements with and compensation of agents of Dep't of Transportation); 48 C.F.R. PHS § 352.280-4 (Contracts with Indian tribes); 49 C.F.R. Pt. 209 (App. A), §§213.15, 214.5, 215.7, 216.7, 217.5, 218.l9, 219.9, 220.7, 221.7, 223.7, 225.29, 228.21, 229.7, 230.0, 231.0, 232.0, 233.11, 234.15, 235.9, 236.0, 240.11 (railroad safety).
(174) See, e.g., 12 U.S.C. § 209 ("[Conservators] shall not be liable [for their acts and omissions]. . . unless such acts or omissions constitute gross negligence, including any similar conduct or any form of similar conduct, or any form of intentional tortious conduct, as determined by a court"); 12 U.S.C. §§ 1787, 1821 ("gross negligence including intentional torts"); 30 U.S.C. § 1235 ("For the purpose of the previous sentence, reckless, willful or wanton misconduct shall constitute gross negligence.").
(175) 42 U.S.C. § 12672 (Model Good Samaritan Food Donation Act)("The term 'gross negligence' means voluntary and conscious conduct by a person with knowledge (at the time of the conduct) that the conduct is likely to be harmful to the health or well-being of another person. . . . The term 'intentional misconduct' means conduct by a person with knowledge (at the time of the conduct) that the conduct is harmful to the health or well-being of another person. [Emphasis added]").
19 C.F.R. Pt. 171, App. B. (Customs violations) ("A violation is determined to be grossly negligent if it results from an act or acts (of commission or omission) done with actual knowledge of or wanton disregard for the relevant facts and with indifference to or disregard for the offender's obligations under the statute.")
(176) See, e.g., 12 U.S.C. § 209 (national banks).
(177) See, e.g., 36 U.S.C. § 5203 (National Fallen Firefighter's Foundation officers).
(178) See, e.g., 19 C.F.R. §§ 122.175, 162.73, 162.77, Pt. 171 (App. B) (customs violations penalties).
(179) See, e.g., 43 U.S.C. § 13334 (off-shore oil drilling leases); 25 C.F.R. § 271.74 (contracts with Indian tribes).
(180)See, e.g., Hill v. Saginaw, 155 Mich. App. 161, 71, 399 N.W.2d 398 (1986).
(181) UNIFORM GIFTS TO MINORS ACT § 5 (1966 Revised Act); UNIFORM GIFTS TO MINORS ACT § 5 (1956 Act); UNIFORM HEALTH CARE INFORMATION ACT § 8-103 (1985 Act).
(182) "A custodian not compensated for his services is not liable for loses to the custodial property unless they result from his bad faith, intentional wrongdoing or gross negligence or from his failure to maintain the standard of prudence in investing the custodial property provided in this act." UNIFORM GIFTS TO MINORS ACT § 5 (1966 Revised Act); UNIFORM GIFTS TO MINORS ACT § 5 (1956 Act).
(183) "If the court determines that there is a violation of this [Act], the aggrieved person is entitled to recover damages for pecuniary losses. . . and, in addition, if the violation results from willful or grossly negligent conduct, the aggrieved person may recover not in excess of [$5,000], exclusive of any pecuniary loss." UNIFORM HEALTH CARE INFORMATION ACT § 8-103 (1985 Act).
(184) RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 7, cmt. f; § 159, cmt. b (liability for gross negligence is determined by guest statute at site of accident but relationship of parties when guest statute is applied is determined by domicile of persons involved); RESTATEMENT (SECOND) OF AGENCY § 242, cmt. c (master sometimes liable to unauthorized guests of servant for servant's negligence and sometimes only for servant's gross negligence); RESTATEMENT (SECOND) OF AGENCY § 347, cmt. b (landowners and hosts liable to guests only in cases of gross negligence but servant's knowledge not master's pertinent to determining if an act was grossly negligence); RESTATEMENT (SECOND) OF CONTRACTS § 157, cmt. a ("Although the critical degree of fault [necessary to prevent a party to a contract who has made a serious unilateral mistake from seeking relief on other grounds] is sometimes described as 'gross' negligence, that term is not well defined and is avoided in this Section as it is in the Restatement (Second) of Torts. Instead, the rule is stated in terms of good faith and fair dealing"); Restatement (Second) of Torts § 82, cmt. e ("In the construction of statutes which specifically refer to gross negligence, that phrase is sometimes construed as equivalent to reckless disregard." 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"); Restatement (Second) of Torts § 886B, cmt. k ("[One] type of situation in which indemnity has sometimes been sought is that in which the two parties are guilty of different types of tortious conduct. . . . Thus, if one party is negligent, the other may have been guilty of intentional misconduct or reckless misconduct or gross negligence. (This may provide grounds for indemnification although the states differ)."); Restatement (Second) of Trusts § 222, cmt. a ("[I]f by the terms of the trust it is provided that the trustee shall not be liable except for his wilful default or gross negligence, although he is not liable for mere negligence, he is liable if he intentionally does or omits to do an act which he knows to be a breach of trust or if he act or omits to act with reckless indifference as to the interest of the beneficiary"); Restatement (Third) of Trusts § 228, cmts. f & g ("Where a trust document permitted a trustee discretion in investing but did not explicitly exculpate the trustee from liability, it did [not] have the effect of providing that [the trustee] would be liable only for gross negligence or recklessness").
(185) RESTATEMENT (SECOND) OF CONTRACTS § 157, cmt. a.
(186) RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 156, cmt. f; § 159, cmt. b.
(187) RESTATEMENT (SECOND) OF TORTS § 282, cmt. e.
(188) Id.
(189) Id.
(190) RESTATEMENT (SECOND) OF TORTS § 886b, cmt. k.
(191) RESTATEMENT (SECOND) OF TORTS § 282, cmt. 6; RESTATEMENT (SECOND) OF AGENCY § 242, cmt. c (master sometimes liable to unauthorized guests of servant for servant's negligence and sometimes only for servant's gross negligence); RESTATEMENT (SECOND) OF AGENCY § 347, cmt. b.
(192) RESTATEMENT (SECOND) OF TRUSTS § 222, cmt. a; RESTATEMENT (THIRD) OF TRUSTS § 228, cmts. f & g.
(193) RESTATEMENT (SECOND) OF CONTRACTS § 157, cmt. a.
(194) M.C.L. §§ 8.3, 8.3w (1993).
(195) MICH. CONST. art. 4, § 24.
(196) See People v. Trupiano, 97 Mich. App. 416, 296 N.W.2d 49 (1980).
(197) See, e.g., People v. Carey, 382 Mich. 285, 170 N.W.2d 232 (1969); Hildebrand v. Revco Discount Drug Centers, 137 Mich. App. 1, 357 N.W.2d 778 (1984).
(198) MICH. CONST. art. 4, § 36.
(199) Op. Att'y Gen. 2330, 1955-1956 Op. Att'y Gen. Mich. 680 (1955).
(200) MICH. CONST. of 1908. art. 5, § 40.
(201) M.C.L. § 340.1 (1955), repealed and replaced by comparable provisions at M.C.L. § 380.1 (1993).
(202) M.C.L. § 168.1 (1955).
(203) Op. Att'y Gen. 2330, 1955-1956 Op. Att'y Gen. Mich. 680 (1955).
(204) MICH. CONST. art. 4, § 24 (1963), and its predecessors, MICH. CONST. of 1908, art. 5, §§ 21, 22, and MICH. CONST. of 1850, art. 4, §§ 20, 25, have been considered in more than 250 reported cases and in at least a dozen opinions of the Attorney General.
(205) See 1994 ANNUAL REPORT, MICHIGAN LAW REVISION COMMISSION N 199, 202-03.