M Civ JI 14.10 Gross Negligence - Definition

Gross negligence means conduct or a failure to act that is so reckless that it demonstrates a substantial lack of concern for whether an injury will result.

Note on Use

This instruction may be used in cases arising under the government tort liability act, MCL 691.1407(2)(c), if gross negligence is an issue for the jury in the case. Tallman v Markstrom, 180 Mich App 141; 446 NW2d 618 (1989); Vermilya v Dunham, 195 Mich App 79; 489 NW2d 496 (1992).

This instruction may also be used in cases arising under the statutes limiting the liability of certain governmental units to gross negligence in regard to off-road recreational vehicles, MCL 324.81131, and snowmobiles, MCL 324.82124, and the statutes making the insurance commissioner and his or her representatives immune from civil liability for conduct not amounting to gross negligence, MCL 500.214. All of these statutes contain the definition of gross negligence from the government tort liability act.

This instruction may be combined with the definitions of wanton, M Civ JI 14.11, and willful, M Civ JI 14.12, misconduct, if appropriate. M Civ JI 14.20, Emergency Medical Services Act—Explanation, and M Civ JI 14.21, Emergency Medical Services Act—Burden of Proof, provide a model for such instructions.

The committee takes no position on the application of this instruction in a context other than the statutes discussed in this use note and comment.

Comment

The definition of gross negligence in M Civ JI 14.10 comes from the government tort liability act. MCL 691.1407(2)(c). Jennings v Southwood, 446 Mich 125; 521 NW2d 230 (1994), adopted this definition as the standard for gross negligence under the Emergency Medical Services Act. In adopting this definition, Jennings discarded the common-law definition of gross negligence (also called last clear chance, subsequent negligence, etc.) as both outdated in a comparative negligence system and inconsistent with the legislative intent to shield emergency medical services workers from liability for ordinary negligence. The “last clear chance” formulation of gross negligence had been applied in cases involving both the Emergency Medical Services Act and the recreational use statute. Burnett v City of Adrian, 414 Mich 448; 326 NW2d 810 (1982).

The committee notes that the term gross negligence is used but not defined in other statutes that share the purpose of immunizing against liability for ordinary negligence. The threshold for liability in most of these statutes is gross negligence, but many add willful and wanton misconduct, bad faith conduct, or other terms without defining them.

The following statutes dealing with health and medical assistance uniformly limit liability to “gross negligence or willful and wanton misconduct” (sometimes adding “good faith conduct”):

· specific medical personnel who render medical care at the scene of an emergency or perform physical examinations or emergency care in competitive sports situations, MCL 691.1501

· specific medical personnel who are not under a duty to respond but do respond to life-threatening emergencies in hospitals or medical care facilities, MCL 691.1502

· block parent volunteers who aid minors in emergencies, MCL 691.1505

· registered members of national ski patrol systems who provide emergency care, MCL 691.1507

· municipal or private ambulance drivers or attendants, or police officers or firefighters who provide first aid at the scene of emergencies, MCL 41.711a

· school administrators, teachers, or other designated school employees who administer medication to pupils with written permission, MCL 380.1178

· health personnel who participate in free immunization programs, MCL 333.9203

· persons who voluntarily render cardiopulmonary resuscitation or use an automated external defibrillator, MCL 691.1504

· peace officers who are involved in mental illness admissions, MCL 330.1427b

· persons who file petitions to have others treated or committed for mental illness, MCL 330.1439

· peace officers, staff of approved service programs, and certain others who deal with apparently incapacitated substance abusers, MCL 330.1282.

There is also a statute that protects members of the state health planning council or employees of that office from criminal or civil liability except for “wanton and willful misconduct.” MCL 325.2021.

Several statutes provide partial immunity in disaster relief or other emergency situations. The emergency management act limits the liability of various disaster relief workers as well as of landowners who provide shelter, MCL 30.411, and allows for a directive limiting the liability of suppliers of voluntary or private assistance, MCL 30.407. Similar statutes provide partial immunity for volunteers in hazardous spill remedial actions. MCL 324.20302. The environmental response act sets limitations on costs and damages resulting from the release or the threat of release of hazardous substances, MCL 324.20131, and limits liability in response activities MCL 324.20126. Another statute limits liability for civil damages for those who provide emergency telephone services, MCL 484.1604 (repealed effective December 31, 2006, see 1999 PA 79).

Three statutes give landowners, lessees, and tenants partial immunity; all set the threshold at “gross negligence or willful and wanton misconduct.” The recreational use act limits the liability of landowners, tenants, or lessees for injury to persons (usually gratuitous users) on the property for outdoor recreation or agricultural, fishing, or hunting purposes. MCL 324.73301. The recreational trespass act limits the liability of owners, tenants, or lessees for injury to persons on the land with consent for recreational or trapping use who have not paid valuable consideration. MCL 324.73107. Another statute protects landowners who lease their land for habitat development and hunter access. MCL 324.43556.

Finally, two sections of the Insurance Code protect various persons from liability for statements made concerning insureds or applicants for insurance, MCL 500.2124, or acts or omissions relating to the exchange of claim information, MCL 500.2130, unless there is gross negligence or bad faith with malice in fact.

History

M Civ JI 14.10 was added September 1995.