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Tull v. WTF8/30/2005
rought a common-law action for ordinary negligence and the negligent person were someone whose act or omission resulted plaintiff's presence at the scene. Because the statutory firefighters' rule superseded the common-law rule that governed the controversy in McCaw, the independent negligence issue that this Court addressed in McCaw is not dispositive, notwithstanding any factual similarities or differences between the instant case and McCaw.
Defendant also argues that public policy favors interpreting the statute to impose the restrictions set forth in subsection 1 on dramshop actions; otherwise, the fear of liability will discourage bar owners from calling the police to deal with unruly, drunken patrons. When interpreting a statute, however, "our function is not to redetermine the Legislature's choice or to independently assess what would be the most fair or just or best public policy." Hanson v Mecosta Co Bd of Rd Comm'rs, 465 Mich 492, 504; 638 NW2d 396 (2002). Rather, " he wisdom of a statute is for the determination of the Legislature and the law must be enforced as written." Shelby Charter Twp v Papesh, ___ Mich App ___; ___ NW2d ___ (2005). Furthermore, defendant's argument fails to appreciate that the specter of liability to injured safety officers might actually serve as an incentive to avoid violating the dramshop act. As this Court's duty is to consider policy, rather than create it, we are bound to uphold MCL 600.2967 as drafted by the Legislature.
IV. Conclusion
Because plaintiff's dramshop action is a right or remedy "otherwise provided by statute," the trial court erroneously applied "the firefighters' rule," MCL 600.2967, to bar plaintiff's claim under the dramshop act, MCL 436.1801.
Reversed and remanded for proceedings not inconsistent with this opinion. We do not retain jurisdiction.
Michael J. Talbot, Janet T. Neff.
I concur in result only.
Michael R. Smolenski
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