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Tull v. WTF8/30/2005
FOR PUBLICATION
Before: Neff, P.J., and Smolenski and Talbot, JJ.
Plaintiff appeals by leave granted from the trial court's order of summary disposition in favor of defendant WTF. The trial court's order was based on its finding that plaintiff's claim under the dramshop act was precluded by the "firefighters' rule," MCL 600.2967. We reverse.
I. Facts and Procedural History
Plaintiff is a Genesee Township police officer. WTF operates the J.J. Shakers bar in Genesee Township. On February 2-3, 2001, employees at the bar allegedly continued to serve alcohol to Ricky Joe Rolland, a patron at J.J. Shakers, after he became visibly intoxicated. Rolland became abusive and threatening to the patrons and employees in the bar, and got into a fight with another patron. The bar's manager notified the Genesee Township police. The police arrested Rolland and placed him in the back seat of a patrol car, but he remained combative and aggressive. Plaintiff and another officer feared that Rolland would injure himself or damage the patrol car, so they decided to remove him from the car and shackle his legs. As the officers were shackling his legs, Rolland kicked plaintiff repeatedly in the knee, injuring him.
Plaintiff seeks relief under the dramshop act, MCL 436.1801, which provides, in pertinent part:
(3) Except as otherwise provided in this section, an individual who suffers damage or who is personally injured by a minor or visibly intoxicated person by reason of the unlawful selling, giving, or furnishing of alcoholic liquor to the minor or visibly intoxicated person, if the unlawful sale is proven to be a proximate cause of the damage, injury, or death, or the spouse, child, parent, or guardian of that individual, shall have a right of action in his or her name against the person who by selling, giving, or furnishing the alcoholic liquor has caused or contributed to the intoxication of the person or who has caused or contributed to the damage, injury, or death. In an action pursuant to this section, the plaintiff shall have the right to recover actual damages in a sum of not less than $50.00 in each case in which the court or jury determines that intoxication was a proximate cause of the damage, injury, or death.
(10) This section provides the exclusive remedy for money damages against a licensee arising out of the selling, giving, or furnishing of alcoholic liquor.
(11) Except as otherwise provided for under this section and section 815, a civil action under subsection (3) against a retail licensee shall be subject to the revised judicature act of 1961, 1961 PA 236, MCL 600.101 to 600.9947.
At issue is whether, or in what circumstances, the "firefighters' rule" of the Revised Judicature Act, MCL 600.2967, precludes plaintiff, a safety officer, from recovery under the dramshop act when he was injured by the allegedly intoxicated person who was served alcohol by defendant. This issue raises a question of first impression.
Before the Legislature enacted the statutory "firefighters' rule" pursuant to 1998 PA 389, Michigan recognized the common-law "fireman's rule," which precluded a firefighter or police officer from recovering damages from a private party for negligence that required the safety officer's assistance at the scene. See Kreski v. Modern Wholesale Electric Supply Co, 429 Mich 347, 367-368; 415 NW2d 178 (1987). The firefighters' rule generally waives the duty of care that third parties owe safety officers. Roberts v Vaughn, 459 Mich 282, 285; 587 NW2d 249 (1998). Michigan courts recognized several exceptions to the firefighters' rule, for example, when a safety officer alleged wrongdoin
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