Beck v. Haik

• Decision Date: 29 July 2004
• Docket Number: No. 01-2723.,01-2723.
• Citation: 377 F.3d 624
• Parties: Galen BECK, as representative of the estate of Eugene Beck; and Sharon Beck, Plaintiffs-Appellants, v. Edward A. HAIK, individually and officially for Manistee County; and Robert C. Hornkohl, individually and officially as Director of Public Safety for City of Manistee, Defendants, Manistee County; and City of Manistee, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

377 F.3d 624

Galen BECK, as representative of the estate of Eugene Beck; and Sharon Beck, Plaintiffs-Appellants, v. Edward A. HAIK, individually and officially for Manistee County; and Robert C. Hornkohl, individually and officially as Director of Public Safety for City of Manistee, Defendants, Manistee County; and City of Manistee, Defendants-Appellees.

No. 01-2723.

United States Court of Appeals, Sixth Circuit.

Argued June 18, 2003.

Decided and Filed July 29, 2004.

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Appeal from the District Court, Robert Holmes Bell, Chief Judge.

Mark R. Bendure (argued and briefed), Bendure & Thomas, Detroit, MI, Grant W. Parsons, Parsons, Ringsmuth, Traverse City, MI, for Plaintiffs.

Joseph Nimako (argued and briefed), Cummings, McClorey, Davis & Acho, Livonia, MI, Mary Massaron Ross (argued and briefed), Plunkett & Cooney, Detroit, MI, for Defendants.

Before BOGGS, Chief Judge; GILMAN, Circuit Judge; and MARBLEY, District Judge.^*

BOGGS, Chief Judge.

The plaintiffs in this 42 U.S.C. § 1983 civil rights suit appeal from the judgment entered against them after a jury verdict for the defendants. The plaintiffs challenge the correctness of several of the district court's rulings on the admission of evidence and other trial matters, and argue that the effect of these rulings substantially prejudiced their case. Though we do not accept all of the plaintiffs' contentions, we agree that a number of errors occurred, and that these were sufficiently prejudicial to require a new trial. We therefore reverse and remand.

I

This case arose from the June 28, 1995, drowning death of Eugene Beck, who dropped from a bridge (apparently after jumping) into the Manistee River in Manistee, Michigan. The plaintiffs contend that Mr. Beck died because officials of the City and County of Manistee, pursuant to a municipal policy, prevented qualified civilian rescue divers on the scene from saving him, even though the city and county provided no meaningful alternative rescue service of their own. In an earlier, unpublished, opinion, Beck v. Haik, 234 F.3d 1267, 2000 WL 1597942 (6th Cir. Oct.17, 2000), we held that these allegations, if proven, were jointly sufficient to establish a claim under 42 U.S.C. § 1983 for violation of Beck's due process rights under the Fourteenth Amendment. 2000 WL 1597942 at *4. We upheld the district court's grant of summary judgment dismissing plaintiffs' other claims. Id. at *9.

On remand, the district court held a seven-day trial. Each element of the plaintiffs' case was significantly contested: (1) whether the defendants city and county had a policy that prevented private rescuers from assisting Mr. Beck; (2) whether the rescue services made available by the defendants were sufficiently effective to constitute a "meaningful alternative" to private rescue; and (3) whether the Becks were able to show causation, by establishing that Mr. Beck would likely have lived if private rescuers had been allowed to dive after him.

The following facts emerged at trial. In 1993, the Manistee County Sheriff's Department formed a county dive team. The sheriff's department concluded after consultation with an expert that the county was too large to permit this dive team to be held out to the public as a "rescue" team; instead, it was deemed a "recovery" team. There was evidence that this term connoted the simple recovery of bodies, rather than the rescue and resuscitation of drowning victims. For a time, the only member of the dive team was then-deputy sheriff Dale Kowalkowski, who was not formally trained or certified in dive rescue. By the time of Mr. Beck's plunge, it included several officers who were certified in diving, but not in dive rescue.

After a fatal drowning accident in the Manistee River in 1993, a group of trained civilian divers formed a private rescue organization called the Manistee Search and Rescue Dive Team ("MSRDT"). The MSRDT entered into a contract to provide rescue and recovery services to the City of Manistee as needed. The members of the MSRDT carried pagers, which the city authorities could use to summon the MSRDT. A protocol developed whereby the City would page the county dive team first in case of a water emergency, and would call out the MSRDT if the county team was likely to have difficulty responding promptly. However, a city memorandum on this subject, produced at trial, included a handwritten annotation that "Sheriff Ed" would "decide" when the MSRDT would be called out — apparently a reference to then-Sheriff Edward Haik.¹

The plaintiffs presented evidence that some local officials were hostile to the MSRDT's activities. Art Krause, the founder of the MSRDT, testified that Sheriff Haik personally told him that he would be subject to arrest if he interfered with the county's operations at a water accident scene. Michael Mosack, a Michigan State Police trainee and also a member of the MSRDT, likewise testified that Haik threatened him with criminal charges if he entered the water at an accident scene. Fred LaPoint, a City of Manistee firefighter and another MSRDT member, testified that he had seen a memo from Manistee County Sheriff Edward Haik stating that all water accident scenes were to be treated as "crime scenes," and that anyone who entered such a scene without his permission would be subject to arrest. While no official copy of the alleged memo was produced at trial, several other witnesses acknowledged that they had either seen or heard of such a memo. Sergeant Douglas Cermak of the Sheriff's Department dive team testified that he had seen a "crime scene" memo, and that Haik had instructed him to take "appropriate action" if the MSRDT interfered with a county dive operation. On the other hand, the defendants presented testimony from several local township fire chiefs who worked with Sheriff Haik, and stated that they had never heard of such an "arrest policy."

Beck and another man, Mark Sander, plunged into the Manistee River at approximately 10:07 p.m. on June 28, 1995. A bystander saw their fall and immediately called 911. The county dispatcher called personnel from the Manistee Police Department, the Manistee Fire Department, and the Manistee County Sheriff's Department Dive Team (the "county dive team") to the scene.

The Manistee police arrived in time for one of the officers to see Beck disappear beneath the river's surface at 10:17 p.m. They notified both Manistee Police Chief Robert Hornkohl and the county dive team.

The city did not page the MSRDT that night. However, Michael Mosack, a member of the MSRDT who was a Michigan State Police trainee and a certified diver overheard the original 911 call reporting Beck's plunge. Mosack immediately gathered his diving equipment, put on the lower half of his wet suit, and drove to the scene. Mosack estimated that he arrived between 10:19 and 10:22 p.m., no more than five minutes after Beck went under the water. Another MSRDT diver, Gordon Cole, learned of the situation by overhearing the dispatcher's call to the fire department. Cole drove to the scene with his equipment and arrived shortly before Mosack did.

Firefighter LaPoint also responded to the call. LaPoint drove to the scene in a city rescue ambulance designated R5. However, LaPoint testified that shortly after he arrived, he received another call telling him that R5 had been "released." This, he said, implied that the accident was no longer considered a rescue scene, but was instead a body recovery scene. LaPoint left the scene shortly thereafter.

Meanwhile, a Coast Guard boat arrived on the scene at 10:27 p.m. The local Coast Guard officer, Chief Timothy Monck, would later testify in a deposition that the Guard had learned of the incident by a phone call from a private citizen.

The county dive team also responded to the call. Then-Sergeant Douglas Cermak, a member of the sheriff's department, was driving a patrol car with his partner Jim Doerning when a call from the dispatcher alerted him that Beck was in the river. Cermak proceeded to the sheriff's office, where he and Doerning gathered their diving equipment. Cermak also put on part of his wet suit. The men left the sheriff's office at 10:33 p.m. Cermak estimated that it took him only a couple of minutes to drive from the sheriff's office to the river and the scene of the accident.

At the scene, a partially suited-up member of the MSRDT — apparently Mosack — approached Cermak and asked if the county team needed help. Cermak told him that the county "had everything under control." Moreover, Mosack testified that he approached Chief Hornkohl and told him that the MSRDT was ready to attempt a rescue. He testified that Hornkohl consulted with Sheriff Haik by radio, and then instructed the divers not to enter the water. However, Hornkohl contradicted this version of events, testifying that he was never aware that MSRDT divers were on the scene. Sheriff Haik likewise denied having any such conversation with Hornkohl. Cole testified that he did not see Chief Hornkohl at the scene.

Eugene Beck's mother, Sharon Beck, eventually arrived at the scene. Firefighter LaPoint physically restrained her to prevent her from attempting to rescue Eugene herself.

Although the accident scene was quite close to the sheriff's office (about a two-minute drive), the county divers did not enter the water until 11:05 p.m., nearly one hour after Mr. Beck's plunge. Cermak and Doering held on to a tow bar attached to the sheriff's boat. The boat experienced mechanical difficulties with its lights and radio, but it proceeded into the water. The boat slowly canvassed the river, which was slightly less than 30 feet deep. The water temperature in the river, as measured by the divers' equipment, was 68 degrees. Cermak testified that this reading was an average, and that the temperature at the river bottom was likely somewhat colder.

Cermak and Doering located Beck on the floor of the...