Governmental immunity is a provision in the law created, in part, to protect government officials from claims against them arising from the performance of their official duties. The motivating force was to allow public officials to focus on the faithful discharge of their duties without being distracted by a constant concern about litigation. In other words, the purpose was to allow them to concentrate on the business at hand and make the necessary, sometimes tough decisions demanded of governing officials without the threat of potential lawsuits hanging over their head.

However, because immunity deprives a claimant of a remedy for injury caused by government officials, it's usually narrowly construed and sparingly applied. The question of whether a fire chief was entitled to the protection of governmental immunity arose recently in a Michigan case.

On Sept. 15, 2001, Paul Grahovac, a volunteer emergency medical technician for Alger County, Mich., responded to an accident in Munising Township. While Grahovac was assisting an accident victim, the brakes failed on a fire truck owned by Munising Township, allowing it to strike Grahovac and kill him. The personal representative of Grahovac's estate sued several parties seeking compensation for Grahovac's death, including Chief Harold Anderson of the Munising Township Volunteer Fire Department.

The personal representative alleged that Anderson was grossly negligent in failing to ensure that the fire truck was properly inspected and maintained. Anderson moved for summary judgment (an order of the court dismissing the case against him), alleging that he was entitled to absolute governmental immunity under a Michigan law, which provided in part:

“A judge, legislator, and the elective or highest appointive executive official of all levels of government are immune from tort liability for injuries to persons or damages to property if he or she is acting within the scope of his or her judicial, legislative or executive authority.”

He argued that as chief of the fire department, he was the highest official of a level of government.

The trial court denied Anderson's motion, concluding that he was not the highest-elected or highest-appointed executive official of Munising Township. The trial court ruled that the highest executive officer of a department within a township was not absolutely immune under the Michigan statute, because the township supervisor who hired the fire chief was actually the highest-elected or highest- appointed executive official in the level of government within which the fire department was organized, that being the township.

Anderson then appealed this ruling to the State of Michigan Court of Appeals in Grahovac, of the Estate of Grahovac v. Munising Township, et al., No. 248352, Court of Appeals of Michigan (2004). That court also considered the question of whether a volunteer fire chief, acting in the scope of his or her executive authority, is the highest-appointed executive official of a “level of government” under Michigan law. Interestingly enough, Michigan law obligates the township board of a township — not the fire chief — to “care (for) and manage the motor vehicles, apparatus, equipment, property, and buildings pertaining to the police and fire departments….”

The first step in the appellate court's analysis was to determine whether a township fire department is a “level of government.” In enumerating the attributes of a level of government, the court examined whether the entity in question shares aspects of governance with other political subdivisions, such as the power to levy taxes, the power to make decisions having a wide effect on members of the community or the power of eminent domain. Other considerations included employing the concept of “broad-based jurisdiction or extensive authority similar to that of a judge or legislator.”

The appellate court agreed with the trial court that it could find no basis to conclude that Anderson was the highest-elected or -appointed executive official in a level of government. Furthermore, the township was unable to present any evidence that Anderson had any powers of governance. For instance, he didn't have the power to levy taxes, to make decisions having a wide effect on members of the community or the power of eminent domain. Neither did he have broadly based jurisdiction or the extensive authority similar to that of a judge or legislator.

The court went on to note that the Michigan legislature had specifically granted those powers to the township board or other government agencies. For example, the township board had the power to levy taxes. Public utilities had the power of eminent domain in certain instances. The state highway commissioner and the county road commission had the power of eminent domain for highways and streets. The power to make decisions having a wide effect on the community and the power to legislate had been granted to the township board.

The court concluded that it could find no proof that a township fire department had legislative powers or shared in the attributes of other political subdivisions. Rather, a township fire department was at the complete disposal of the township board and could neither exist nor act without the board's authorization. For these reasons, the court concluded that Anderson was not the highest-appointed or -elected official in a level of government and consequently was not entitled to be protected by the grant of absolute governmental immunity that he claimed.

The court went on to note that its conclusion was in accord with the purpose behind absolute immunity and recognized the reasons for granting some government officials absolute immunity while bestowing others with only qualified immunity. Quoting from an earlier Michigan case, the court observed:

“It is assumed through the broad grant of immunity to certain public employees that these officials, and therefore their governmental agencies, will not be intimidated nor timid in the discharge of their public duties. Although absolute immunity may be necessary for unfettered governmental decision-making, courts have been reluctant, understandably, to extend its protection beyond select public employees who are delegated policy-making powers.

“The policy which only provides a limited immunity to lower-level executive officials, unlike the justifications for absolute immunity, reflects a recognition that official immunity should not shield malicious or intentionally unlawful behavior when the actor is not engaged in broad, essential governmental decision-making. Holding these public servants liable does not hamper or intimidate them in the faithful discharge of their duties since they are responding to established administrative guidelines, regulations and informal policy.”

The court went on to state that where the township board, rather than Anderson, has been legislatively charged with broad, essential governmental decision-making, it is the township board, rather than Anderson, that requires the broad protection of absolute immunity. In the present case, the defense had produced nothing from which the court could conclude that Anderson was engaged in the broad, essential governmental decision-making necessary to invoke the absolute immunity protections provided under Michigan law.

The court emphasized that the test for qualifying for absolute governmental immunity is not whether someone is the highest executive of a department. Rather, the test is if the person is the highest-appointed or -elected executive of a level of government. Anderson could not meet this test.

Lastly, Anderson argued that he was entitled to absolute immunity because several earlier Michigan cases had found that certain police chiefs were so protected. The court disagreed with this argument, saying that in those cases, the executive official at issue was the city chief of police, and Michigan city charters specifically granted powers to the police chief above and beyond those granted by the legislature. However, cities and townships are governed by different statutory schemes. Because Anderson headed a township fire department, the legislative provisions governing townships controlled. The court said that there was no basis under Michigan law to conclude that the Munising Township Volunteer Fire Department was a level of government.

Grahovac's personal representative also raised the argument that Anderson was not entitled to absolute immunity because he was a volunteer fire chief and therefore he enjoyed only part-time employment status. Notably, the court rejected this argument, observing that the plain language of the statute did not limit absolute immunity to either paid or full-time positions. The court specifically emphasized that its holding that Anderson was not absolutely immune from tort liability wasn't premised on his volunteer or part-time employment status, but rather on the fact that he was not the highest-elected or -appointed executive official of a level of government.

The final result, then, was not a finding that Anderson had been grossly negligent, or that he had even been guilty of ordinary negligence. Rather, it was the court's conclusion that he was not entitled to claim absolute immunity, and therefore the Grahovac estate was allowed to proceed to trial to attempt to prove the validity of its claim against him. Following are some lessons learned from Anderson's experience:

• As fire chiefs, we often think of ourselves as at the top of the food chain. However, we are still only the head of a department and not of a level of government.
• Immunity is generally not favored in the law, and it isn't unusual to find courts applying it narrowly.
• Even in those instances where we are entitled to immunity, we must constantly guard against this protection causing us to become complacent.

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Philip C. Stittleburg, MIFireE, is a Wisconsin attorney who has been chief of the La Farge (Wis.) Fire Department since 1977. He has been legal counsel for the Wisconsin State Fire Fighters Association, legal counsel and Wisconsin director for the National Volunteer Fire Council Inc., president of the NVFC Foundation, and current NVFC chair. Stittleburg sits on the NFPA board of directors and has served on the committee for NFPA 1500, Fire Department Occupational Safety and Health Program.