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Tull v. WTF8/30/2005
d of death or injury if the injury occurred within a highway right-of-way, if there was emergency lighting activated at the scene, and if the firefighter or police officer was engaged in emergency medical services, accessing a fire hydrant, traffic control, motorist assistance, or a traffic stop for a possible violation of law.
(2) This section shall not be construed to affect a right, remedy, procedure, or limitation of action that is otherwise provided by statute or common law.
In sum, subsection 1 permits a safety officer to recover damages for injuries arising from the "normal, inherent, and foreseeable risks" of the safety professions, provided the injuries arise from a person's grossly negligent, wanton, wilful, or intentional conduct (subsection 1(a)), or from ordinary negligence, as long as other enumerated conditions are satisfied (subsection 1(c)).
At issue is how subsection 2 affects plaintiff's right to sue under the dramshop act where defendant called plaintiff to the scene to subdue an allegedly intoxicated person, and the intoxicated person injured plaintiff in the course of resisting arrest. Defendant argues that plaintiff's claim does not fall within subsection 1(c)(i), because it was defendant's act in calling the police that resulted in plaintiff's presence at the place where the injury occurred, and the injury was not independent of defendant's actions in serving alcohol and calling the police. Plaintiff argues that, because a dramshop action is a statutory action, and not a common-law negligence action, it is preserved under subsection 2, notwithstanding the limitations set forth in subsection 1. The trial court agreed with defendant that plaintiff's interpretation of the statute is erroneous because it would cause subsection 2 to "swallow" subsection 1.
II. Standard of Review
Whether the statutory "firefighters' rule" precludes plaintiff's dramshop action is a question of statutory interpretation. In reviewing a statute, this Court examines the language of the statute to determine whether ambiguity exists. Western Michigan Univ Bd of Control v Michigan, 455 Mich 531, 538; 565 NW2d 828 (1997). If the language is unambiguous, judicial construction is precluded and the statute is enforced as written. Id. If the statute is ambiguous, this Court's goal is to effectuate the Legislature's intent through a reasonable construction, considering the purpose of the statute and the object sought to be accomplished. The Mable Cleary Trust v The Edward-Marlah Muzyl Trust, 262 Mich App 485, 496; 686 NW2d 770 (2004). Provisions of a statute that could be in conflict must, if possible, be read harmoniously. Nowell v Titan Ins Co, 466 Mich 478, 482; 648 NW2d 157 (2002). In reviewing the statute's language, every word should be given meaning, and this Court should avoid a construction that would render any part of the statute surplusage or nugatory. Bageris v Brandon Twp, 264 Mich App 156, 162; 691 NW2d 459 (2004).
III. Analysis
We agree with plaintiff's interpretation of MCL 600.2967. Subsection 2 states that " his section shall not be construed to affect a right, remedy, procedure, or limitation of action that is otherwise provided by statute or common law." (Emphasis added.) The plain, unambiguous language of the statute states that it does not affect rights and remedies available under other statutes or the common law. In plaintiff's situation, this means that the limitations prescribed in subsection 1 with respect to negligence and intentional tort actions do not affect plaintiff's statutory dramshop action, because that is an action "otherwise provided by statute." The word otherwise establishes a demarcation between th
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