JEANNE OMELENCHUK V CITY OF WARREN
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Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice
Justices
Maura D. Cor rigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
Opinion
____________________________________________________________________________________________________________________________
FILED JULY 9, 2002
JEANNE and KRISTIN OMELENCHUK,
Co-Personal Representatives of
the Estate of George Omelenchuk,
Plaintiffs-Appellees,
v
No. 117252
THE CITY OF WARREN, and the
WARREN FIRE DEPARTMENT,
Defendants-Appellants.
___________________________________
BEFORE THE ENTIRE BENCH
CAVANAGH, J.
Plaintiffs allege that their decedent died as the result
of gross negligence by employees of defendant, the city of
Warren.
The circuit court granted summary disposition on the
basis of governmental immunity.
MCR 2.116(C)(7).
The Court
of Appeals reversed, but this Court reinstates the judgment of
the circuit court because the controlling statutes plainly
provide immunity to defendant, the city of Warren.
I
Two years ago, when this case was before us in connection
with a separate issue, we stated the facts. Omelenchuk v City
of Warren, 461 Mich 567, 568-570; 609 NW2d 177 (2000).
On February 13, 1994, a man named George
Omelenchuk suffered a heart attack at work.[1] The
person who found him lying on the floor called the
Warren Fire Department, which sent two trucks.
Emergency personnel at the scene included two
firefighters, three paramedics, and an emergency
medical technician.
Resuscitation efforts included insertion of an
endotracheal tube.
The defendants say that all
three paramedics checked to make sure the tube was
properly placed.
However, when Mr. Omelenchuk
arrived at the hospital, the tube was found to be
in his esophagus, rather than his trachea.
Mr. Omelenchuk was transported to a hospital
that was located across the street from his place
of business.
In the emergency room, further
efforts were made to save his life. However, these
were unsuccessful, and he was declared dead.
The day after Mr. Omelenchuk died, plaintiffs
Jeanne Omelenchuk and Kristin Omelenchuk were named
co-personal representatives of the estate.[2]
* * *
1
In the earlier appeal, as now, we were examining an
untried case. As we did two years ago, we take the facts as
presented in plaintiffs’ complaint, though we have also
examined other pleadings in the record for the purpose of
providing a factual narrative.
2
As we noted in our first opinion, “[t]he plaintiffs’
complaint identifies Jeanne Omelenchuk as the decedent’s
widow. However, the defendants dispute that assertion on the
basis of a 1992 judgment of divorce. Kristin Omelenchuk is
the daughter of George and Jeanne Omelenchuk.”
[461 Mich
569.]
2
[T]he plaintiffs filed suit against the city
of Warren and the Warren Fire Department on
July 19, 1996.
In March 1997, the defendants moved for
summary disposition. MCR 2.116(C)(7). The motion
listed several grounds, including governmental
immunity and the statute of limitations.
At the motion hearing, defense counsel argued
that the defendants were immune because there was
no showing that the emergency personnel had been
grossly negligent and because the city could not be
held vicariously liable.[3]
In presenting these
arguments,
counsel
cited
MCL
333.20965
and
691.1407. Without explaining the precise statutory
basis of its ruling, the circuit court granted
summary disposition “[o]n the basis of governmental
immunity.”
The plaintiffs appealed.
affirmed,[4] but not on the
Instead, the Court concluded
complaint had not been timely
The Court of Appeals
basis of immunity.
that the plaintiffs’
filed.
We vacated the judgment of the Court of Appeals, finding
that plaintiffs had timely filed their complaint.
We also
remanded the case to the Court of Appeals for consideration of
the immunity issue, which had formed the basis of the circuit
court’s decision to grant summary disposition.
461 Mich 571
577. On remand, the Court of Appeals reversed the judgment of
the circuit court because “defendants failed to produce any
3
It is agreed that the fire department is not a separate
entity from which plaintiffs can recover. Any recovery would
be from the city of Warren.
4
Unpublished opinion per curiam, issued April 6, 1999
(Docket No. 204098).
3
documentary evidence to establish that the conduct of the
responding paramedics did not constitute gross negligence.”
Slip op at 1.5
We granted defendants’ application for leave to appeal.
II
We review questions of statutory interpretation de novo.
Cardinal Mooney High Sch v Mich High Sch Athletic Ass’n, 437
Mich 75, 80; 467 NW2d 21 (1991).
III
A
The issue presented in this case is one of statutory
interpretation.
interpretation
Therefore, we must apply familiar statutory
principles
that
were
recently
restated
in
Wickens v Oakwood Healthcare System, 465 Mich 53, 60; 631 NW2d
686 (2001):
The paramount rule of statutory interpretation
is that we are to effect the intent of the
Legislature. Tryc v Mich Veterans’ Facility, 451
Mich 129, 135; 545 NW2d 642 (1996). To do so, we
begin with the statute’s language.
If the
statute’s language is clear and unambiguous, we
assume that the Legislature intended its plain
meaning, and we enforce the statute as written.
People v Stone, 463 Mich 558, 562; 621 NW2d 702
(2001). In reviewing the statute’s language, every
word should be given meaning, and we should avoid a
construction that would render any part of the
statute surplusage or nugatory. Altman v Meridian
Twp, 439 Mich 623, 635; 487 NW2d 155 (1992).
5
Unpublished memorandum opinion, issued June 23, 2000
(Docket No. 204098).
4
In this case, a plain reading of the emergency medical
services act (EMSA), MCL 333.20965, requires a conclusion that
defendant, the city of Warren, is entitled to a grant of
summary disposition on the basis of governmental immunity.
The first subsection of the EMSA, MCL 333.20965(1)(f),
provides that an “authoritative governmental unit,” in this
case defendant, the city of Warren, is immune from suit on the
basis of the acts of its emergency medical services workers in
treating a patient “[u]nless the act or omission is the result
of gross negligence or wilful misconduct . . . .”6
Stated
affirmatively, this means that the city can be sued under this
provision if the plaintiff can prove the city’s emergency
medical workers were grossly negligent in treating a patient.
Yet, this ability to sue is subsequently narrowed by MCL
333.20965(4).
This section of the statute states:
Subsections (1) and (3) do not limit immunity
from liability otherwise provided by law for any of
the persons listed in subsections (1) and (3).
Because MCL 691.1407(1), which is part of the act commonly
described as the governmental tort liability act (GTLA),
provides that a governmental entity, including of course
defendant, the city of Warren, is “immune from tort liability
if the governmental agency is engaged in the exercise or
6
That is the language of 1990 PA 179 (in effect at the
time of these events). The same phrase is found in 1997 PA
78, 1999 PA 199, and 2000 PA 375.
5
discharge of a governmental function,”7 MCL 333.20965(4) means
that the city of Warren is immune in the discharge of a
governmental function.8
B
Notwithstanding the clarity that this analysis of the
statute yields about its meaning, plaintiffs effectively ask
us to depart from applying the plain language of the statute
on
the
ground
that
the
Legislature’s
inclusion
of
any
governmental entity by use of the phrase an “authoritative
governmental unit” in MCL 333.20965(1) is rendered pointless
if MCL 333.20965(4) means that such a governmental entity will
always be immune from suit under the GTLA anyway.
Thus, they
argue, to avoid making the statute a futile exercise, or
7
That is the current language of the statute, as enacted
in 1999 PA 241 and 2000 PA 318. Throughout this opinion, we
will discuss the case in terms of the current statutory
language. The version enacted in 1986 PA 175 was in effect at
the time of these events; it and 1996 PA 143 include a
stylistic difference that does not affect the present issue.
8
While the plain language of the statute is dispositive,
we note that the history underlying the adoption of MCL
333.20965(4) supports the conclusion that it was adopted by
the Legislature to make clear that MCL 333.20965 does not take
away any immunity enjoyed by a governmental entity under the
GTLA. In construing a predecessor version of the EMSA that
did not include language like that of MCL 333.20965(4), this
Court in Malcolm v East Detroit, 437 Mich 132; 468 NW2d 479
(1991), affirmed the decision of the Court of Appeals in that
case that the prior version of the EMSA created an exception
to governmental immunity in cases of gross negligence or
wilful misconduct in the provision of emergency medical
services.
6
nullity, we should ignore MCL 333.20965(4) so as to leave MCL
333.20965(1) with meaning.
In other words, plaintiffs would
have us hold that an authoritative governmental unit, such as
defendant, the city of Warren, can be sued under the EMSA in
cases of gross negligence by its emergency medical services
workers, notwithstanding the immunity shield set forward in
the same statute.
We disagree that such an approach to the statute is
proper.
While plaintiffs are correct to the extent that we
should strive to prevent any part of a statute from being a
nullity, a thorough review of the statute at issue leads to
the conclusion that the reading occasioned by the plain
meaning analysis does not produce a nullity and, thus, this
principle is not implicated in this case.
No portion of the
EMSA need be ignored to give the entire legislative enactment
a coherent meaning.
As we noted in Malcolm at 141, n 9, the Legislature added
language to the EMSA substantially the same as the present MCL
333.20965(4)
in
providing
that
the
EMSA
did
not
limit
liability otherwise provided by law, shortly after the Court
of Appeals issued its opinion in Malcolm.
Clearly, the
purpose of adding this language was to make clear that the
EMSA did not remove the immunity of a governmental entity
under the GTLA.
7
When read carefully, it is apparent that immunity under
the GTLA for municipalities or other governmental entities is
only given if they are engaged “in the exercise or discharge
of a governmental function.” MCL 691.1407(1). Implicit then,
and later made explicit in MCL 691.1413, is that the GTLA does
not give immunity if the governmental function is proprietary.
Thus, to particularize this principle, if a governmental
agency provides emergency medical services as part of its
governmental functions, it has immunity, but, if it does so as
part of a proprietary function, it does not.
Thus, when one
understands that this act outlines with precision when suit
can be brought against governments providing emergency medical
services, it is clear that there is no nullity effected in the
Legislature’s handling of this issue.
This approach brings
harmony to both MCL 333.20965(1) and (4), as well as the GTLA,
MCL
691.1407(1),
and
makes
clear
that
they
are
not
in
conflict.
In the present case, it is beyond reasonable dispute, and
thus we take judicial notice, that the relevant activity of
the city’s fire department was part of its discharge of its
governmental
function.
functions,
and
not
part
of
any
proprietary
Accordingly, the city is immune from suit.
IV
The
plain
language
of
MCL
8
333.20965(4)
compels
the
conclusion that defendant is entitled to the governmental
immunity granted in MCL 691.1407(1).
the
judgment
of
the
Court
of
Accordingly, we reverse
Appeals
and
reinstate
the
judgment of the circuit court, MCR 7.302(F)(1).
CORRIGAN , C.J., and WEAVER , KELLY , TAYLOR , YOUNG , and MARKMAN ,
JJ., concurred with CAVANAGH , J.
9
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