McCaw v. T & L Operations, Inc.

White, J.

(dissenting). I do not address plaintiffs’ argument that the fireman’s rule is generally inapplicable to statutory actions under the dramshop act, MCL 436.22; MSA 18.993, because that question was decided adversely to plaintiffs in this Court’s initial opinion and the Supreme Court’s remand to this Court was solely for the purpose of reconsidering the case in light of Gibbons v Caraway and Mariin v Fleur, Inc, 455 Mich 314; 565 NW2d 663 (1997).

In Gibbons, the Supreme Court discussed its previous decisions applying the fireman’s rule and reaffirmed the Court’s recognition in Woods v City of Warren, 439 Mich 186; 482 NW2d 696 (1992), that the rule generally applies to injuries derived from the negligence causing the safety officer’s presence and also to those stemming from the normal risks of the profession, but is to be applied “flexibly as circumstances require []” to “flexibly address the different fact patterns as they are presented,” recognizing “individual exceptions in appropriate situations” when the “fundamental policy rationale is inapplicable.” Gibbons, at 322-323 (citations omitted). Applying these principles to the instant case, I would hold that the policy rationales are inapplicable and affirm.

The dramshop violation was unrelated to the reason plaintiff Daniel McCaw (plaintiff) was on the scene. Plaintiff was not called to the scene by a bar owner seeking assistance in dealing with a disorderly patron, called regarding a disturbance created by an intoxicated person, or called to the scene of an accident involving a drunk driver. Rather, he was called to investigate a stabbing involving two persons other than Williams. Thus, the aspect of the policy rationale that seeks to encourage citizens to call safety officers for assistance without regard to their own negligence is not implicated, and the prong of the test that focuses on injuries derived from the negligence requiring the officer’s presence is inapplicable because defendant’s “negligence” (statutory violation) was unrelated to plaintiff’s presence. Additionally, except in the most general sense, being assaulted by Williams was not a normal, inherent, and foreseeable risk. Williams’ intoxication was peripheral to plaintiff’s performance of his duties.

Further, the aspect of the policy rationale for the fireman’s rule that recognizes that safety officers are trained at taxpayer expense to handle dangerous situations and are compensated at taxpayer expense to deal with hazards created by taxpayer negligence, and therefore shields citizens from damage claims for injuries sustained by officers as a result of carelessness or ordinary negligence encountered as a normal risk of the profession, Gibbons, at 321 (Cavanagh, J.), 331 (Boyle, J), is inapplicable to the instant situation where the risk of injury from the acts of persons served in violation of the dramshop act is specifically addressed by a legislative scheme that requires that the dramshop owner maintain security for liability under the dramshop act.¹ The dramshop owner is not in the same position as the citizen whose ordinary negligence causes injury to the officer.

I would affirm.

1 I recognize that the same argument might be made regarding automobile .accidents involving officers on the basis of the legislative requirements for security under the no-fault act. However, in such cases a different aspect of the policy favoring application of the fireman’s rule is operative because, as observed by Justice Boyle in Gibbons, the situation that required the officer’s presence often creates the added risk that a third party unrelated to the situation will be distracted or inattentive and negligently cause rqjury to an officer at the scene. Gibbons, at 331 (Boyle, J.). In such cases, the third-party driver may be excused from liability to the officer at the scene in the line of duty where that very situation provides the occasion for the third party’s negligence. The instant case presents a different fact pattern. Defendant’s violation of the dramshop act was wholly independent of, preceded, and was in no way caused by the situation that led to plaintiffs presence on the scene in the exercise of his duties as an officer.