Southfield, Mich. —March 1, 2018— A. Vince Colella, a civil rights and personal injury attorney at Moss & Colella, P.C., has spent years seeking to ease the far-reaching protections offered to employees and entities covered by government immunity. With proposed Michigan Senate Bill SB-0877, introduced on Feb. 27 and seeking to eliminate government immunity protections in cases involving sexual assault, Colella is hopeful, but doubtful.
“This is an interesting proposal for what has become an archaic protection of government,” Colella said. “Under the government immunity statute, the state and any of its political subdivisions (city, village, town, school district, court, public college, etc.) are immune from civil liability. However, there are exceptions: (1) the failure to maintain and repair highways, (2) the negligent operation of government-owned vehicles, (3) dangerous or defective conditions in public buildings, (4) the performance of proprietary functions, and (5) the ownership or operation of a government hospital. Michigan SB – 877 would provide for an additional exception, “sexual misconduct while in the course and scope of employment while acting on behalf of the government agency.””
Although it’s not completely clear what the legislative intent is, Colella explained that wording of Section 2 of the bill presumably imposes vicarious liability on the state and its political subdivisions for the sexual misconduct of its employees. Should the bill become law, a victim would no longer have to establish that a government agency was “the” proximate cause of an injury as required under a gross negligence cause of action. Rather, the victim would merely have to show that the agency was “a” proximate cause of the injury resulting from the sexual misconduct. Further, the language of the legislation calls for the law to be retroactive. Under section 3, “[sexual mis]conduct that occurred after December 31, 1992” would not be immune from civil liability. Colella says that’s where one of the biggest challenges arises.
“Should SB-0877, along with SB-0872, which extends the statute of limitations to 30 years for criminal sexual conduct, be universally adopted in both criminal and civil cases, it could open the flood gates to a tidal wave of litigation – including hundreds of cases against Michigan State University for the conduct of Larry Nassar,” Colella said.
While in favor of the government immunity legislation, Colella is doubtful it will pass.
“The legislation is laudable, but SB-0877 exposes the state and its political subdivisions to incredible economic exposure” Colella said. “Lawsuits arising out of sexual misconduct are predicated on the intentional acts of the persons perpetrating the crimes. Nearly all insurance policies, including those covering the local cities, schools, municipal corporations, and agencies, exclude “intentional acts,” meaning judgments arising from this legislation would likely not be insured. I think when the legislature researches the impact of this bill, it will be scrapped. The State of Michigan and its governmental units would be vulnerable to monetary exposure of epic proportion.”
Interestingly, Colella is currently working on a high profile case where he has been successful in arguing against government immunity. In Nov. 2017, the Michigan Supreme Court declined to grant governmental immunity to a Mid-Michigan public school teacher in the governmental gross negligence case, Bellinger v Kram. The Michigan Supreme Court decision means the Michigan Court of Appeals ruling from May 2017, allowing the firm to proceed with a lawsuit on behalf of the student, stands.
The Michigan Court of Appeals decision, in denying governmental immunity to the teacher, found there was substantial evidence from which a jury could find in favor of the student, including testimony from the student that she was pressured to use the saw by her shop class teacher, that she had requested assistance from the teacher but had been rejected, and that the teacher had advised her that the saw guards were optional and only necessary for insurance inspections. A jury trial in Bellinger v Kram is expected to take place in spring 2018.
About Moss & Colella
Established in 1997, Moss & Colella represents the victims of personal injury, civil rights violations, discrimination and wrongful death. The firm is recognized as a leader in complex tort litigation, including excess and deadly force, jail death, sexual abuse and harassment, auto and truck accidents, and other serious injury and wrongful death claims. To learn more about the firm and its diverse areas of practice, visit the Moss & Colella website.