WILLIAM R BACKUS V AMY BETH FAJNOR-STRONG
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
WILLIAM R. BACKUS,
UNPUBLISHED
June 4, 1999
Plaintiff-Appellee,
v
No. 204620
Ingham Circuit Court
LC No. 96-083227 NI
AMY BETH FAJNOR-STRONG,
Defendant-Appellee,
and
MELODY ANN KAUFFMAN,
Defendant-Appellant,
and
M & M AUTO SALES, INC., and LANSING
SCHOOL DISTRICT,
Defendants.
Before: Jansen, P.J., and Holbrook, Jr., and MacKenzie, JJ.
MacKENZIE, J. (dissenting).
I respectfully dissent. Haberl v Rose, 225 Mich App 254; 570 NW2d 664 (1997), upon
which the majority relies, is inapplicable to this case because plaintiff’s complaint did not premise
Kauffman’s alleged liability on the owners’ liability statute, MCL 257.401(1); MSA 9.2101(1).
Instead, plaintiff alleged that Kauffman violated MCL 257.638; MSA 9.2338 (improper passing), MCL
257.705; MSA 9.2405 (inadequate brakes), MCL 257.683; MSA 9.2383 (driving an unsafe vehicle),
and the common law duty to use due care. Because plaintiff did not plead a violation of the owners’
liability statute, it should not be used to abrogate Kauffman’s governmental immunity under MCL
691.1407(2); MSA 3.996(107)(2).
-1
MCL 691.1407(2); MSA 3.996(107)(2) governs individual immunity for lower-level
governmental employees, and provides that they are immune from tort liability provided that they are
acting within the scope of their authority, the governmental agency employing them is engaged in the
exercise of a governmental function, and the employees are not grossly negligent. Haberl
notwithstanding, in my opinion, this statute is controlling. MCL 691.1407(2); MSA 3.996(107)(2)
explicitly provides that governmental employees are immune from liability "[e]xcept as otherwise
provided in this section.” [Emphasis added.] Because the civil liability statute is not part of that
section, it must give way to individual immunity. Accordingly, I would hold that the trial court abused its
discretion in refusing to allow Kauffman to amend her affirmative defense, since the amendment would
not have been futile.
Even if Haberl is controlling, in which case this panel would be bound to follow it, I believe
Haberl was wrongly decided, the dissent of Judge Saad espouses the correct legal result, and is in
accord with the intent of the Legislature.
/s/ Barbara B. MacKenzie
-2
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
