Brewer v. Perrin

• Decision Date: 04 May 1984
• Docket Number: Docket No. 68478
• Citation: 349 N.W.2d 198,132 Mich.App. 520
• Parties: Mary F. BREWER, Administratrix of the Estate of Gary Gene Catron, Deceased, Plaintiff-Appellant, v. Robert J. PERRIN, Lt. Haber, Mark Tims and Paul Sadowski, Defendants-Appellees, and The Garrison Company, a Michigan Corporation, Nordstrom-Samson & Associates, Inc., Bery-Klei Associates, and the City of Southgate, a Michigan Municipal Corporation, Jointly and S 132 Mich.App. 520, 349 N.W.2d 198
• Court: Court of Appeal of Michigan — District of US

Page 198

349 N.W.2d 198

Mary F. BREWER, Administratrix of the Estate of Gary Gene Catron, Deceased, Plaintiff-Appellant, v. Robert J. PERRIN, Lt. Haber, Mark Tims and Paul Sadowski Defendants-Appellees and The Garrison Company, a Michigan Corporation Nordstrom-Samson & Associates, Inc., Bery-Klei Associates, and the City of Southgate, a Michigan Municipal Corporation, Jointly and S

Docket No. 68478.

132 Mich.App. 520, 349 N.W.2d 198

Court of Appeals of Michigan.

Submitted Oct. 4, 1983.

Decided March 5, 1984.

Released for Publication May 4, 1984.

[132 MICHAPP 523] Quinn & Budaj, P.C. by John P. Quinn, Detroit, for plaintiff.

James A. Kandrevas, P.C. by James A. Kandrevas, Southgate, for defendants on appeal.

Before KELLY, P.J., and HOOD and SHEPHERD, JJ.

HOOD, Judge.

In this action, plaintiff sued several defendants as the result of the death of her son, Gary Catron, who killed himself while confined at the Southgate City Jail. Plaintiff appeals as of right from a grant of summary judgment in favor of defendants Perrin, Haber, Tims and Sadowski, ¹ all of whom are employees of the Southgate Police Department.

At about 3:30 p.m., April 27, 1979, 15-year old Gary Catron came home drunk and promptly began to fight with his twin brother Terry. After [132 MICHAPP 524] Gary armed himself with a butcher knife, plaintiff, their mother, telephoned the Southgate Police for help.

When officers Tims and Sadowski arrived, Gary, having apparently given up chasing his brother around the neighborhood, was returning home. From about 25 feet, the officers saw that Gary was staggering, bleeding from the mouth (his face was stained with blood), and had a butcher knife sticking out of his back pocket. Although Gary was belligerent and uncooperative, the officers were able to take the knife from him, handcuff him, and place him in the patrol car.

Defendants concede that Tims and Sadowski not only knew that Gary was a juvenile, but also recognized him from his previous contacts with the police. The evidence, however, does not clearly show that they knew either about Gary's particular behavioral problem and history of substance abuse, or that Gary had, at the Southgate Police Department's suggestion, received psychological counseling at the Downriver Guidance Center.

After arresting Gary, the officers talked with plaintiff. She claims that the officers merely asked her whether or not she could handle Gary and that she responded that she could not. The officers then said that they would take Gary into custody and that she could pick him up in about an hour. On the other hand, defendants claim that the officers asked plaintiff what she wanted to do. (Terry was complaining that he was afraid and wanted Gary taken out of the house.) She responded by asking them to arrest Gary. One of the officers told her he would take Gary and hold him at the jail, but that since he was a juvenile, she would have to come down to the jail later.

During the ride to the Southgate Police station, [132 MICHAPP 525] Gary was screaming loudly, kicking at the metal screen which separated him from the officers, cursing them, and challenging them to a fight. He continued to struggle as he was taken from the car to the booking area. In fact, when the handcuffs were removed, Gary began striking the Formica tabletop with his fists and again offered to fight the officers.

Gary was then confined in one of the two segregated cells designated by departmental policy to accommodate juveniles. Each of the two cells in the juvenile detention area has three concrete walls and a front which consists of steel bars and crossbeams. The two cells are separated from the security corridor by a metal door. Although the two cells are equipped with a sound monitoring system, no visual contact is available from the officer's station. The officers in charge must walk down to the juvenile section to check on persons held there.

The jail is equipped with a detoxification cell; a large cell with soft surfaces, no bars and a large window which allows occupants to be easily observed from the security corridor. Although the detoxification cell was empty, the officers complied with a departmental policy that all juveniles, even if clearly intoxicated, must be housed in the juvenile detention area. Moreover, defendant Sadowski testified at his deposition that the policy required the detoxification cell to be used only for a person either unable to walk or unconscious.

Gary was still combative and belligerent when defendants Tims and Sadowski placed him in his cell. Because during most of his stay in the jail Gary was shouting and screaming so loudly that the noise disrupted the department's work, defendant Haber turned off the sound monitoring system for most of that time.

[132 MICHAPP 526] During the 1 1/2 hours that Gary remained alive in his cell, defendant Haber walked past his cell only once. Gary appeared to be sleeping then (5 p.m.).

About 15 to 30 minutes later, Gary was found to have hanged himself. The suicide had consumed enough time for Gary to rip up his shirt, tie a part of it over the crossbeam and attempt to hang himself, fail because the knot gave, and use a second knot to successfully hang himself. He was pronounced dead on arrival at Wyandotte General Hospital.

Eventually, plaintiff sued. Her complaint contained five allegations: (1) architect's and builder's malpractice, (2) the city's liability for a defective building, (3) false arrest and false imprisonment, (4) assault and battery, and (5) deprival of Gary's constitutional rights in violation of 42 U.S.C. Sec. 1983. The trial court, however, dismissed the last three of these counts, ruling that no material questions of fact existed. Defendants Perrin, Haber, Tims, and Sadowski were therefore dismissed from the suit.

Plaintiff first argues that the trial court erred in granting summary judgment on the false arrest and false imprisonment counts. Summary judgment under GCR 1963, 117.2(3) is inappropriate if a "genuine issue of fact is created when the affidavits, pleadings, depositions, admissions and documentary evidence, viewed in the light most favorable to the party opposing the motion, might permit inferences contrary to the facts as asserted by the movant". Opdyke Investment Co. v. Norris Grain Co., 413 Mich. 354, 360, 320 N.W.2d 836 (1982). However, if the undisputed facts allow only one reasonable interpretation, the question becomes a legal one. Hammitt v. Straley, 338 Mich. 587, 597, [132 MICHAPP 527] 61 N.W.2d 641 (1953); Leisure v. Hicks, 336 Mich. 148, 57 N.W.2d 473 (1953).

In order to prevail on this count, plaintiff must show that the arrest was not legal, i.e., without probable cause, Lewis v. Farmer Jack Division, Inc., 415 Mich. 212, 218, fn. 2, 327 N.W.2d 893 (1982); Filer v. Smith, 102 Mich. 98, 60 N.W. 297 (1894). Probable cause to arrest is determined by whether or not the "facts available to the police at the moment of arrest would have justified a fair-minded person of average intelligence and judgment in believing that [the arrestee] had committed a felony". People v. Goeckerman, 126 Mich.App. 517, 521, 337 N.W.2d 557 (1983). See also Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); 1 Wharton's Criminal Procedure (12th ed.), Sec. 51, pp. 144-145.

Based on the undisputed facts, we can only conclude that defendants did have probable cause to arrest Gary. His mother had earlier telephoned them saying that Gary was assaulting his brother with a knife. When Tims and Sadowski saw him, he was staggering, bleeding, and carrying the knife. Even though Gary was a juvenile, the police had probable cause to arrest him for felonious assault. M.C.L. Sec. 750.82; M.S.A. Sec. 28.277. Whether or not Gary could actually have been convicted is irrelevant because actual innocence is not an element of the tort of false arrest. Lewis, supra, 415 Mich. 218, fn. 1, 327 N.W.2d 893.

Plaintiff also claims that the trial court erroneously granted summary judgment on the assault and battery count. GCR 1963, 117.2(1). Specifically, plaintiff had alleged that, during the arrest, defendants intentionally and nonconsensually touched Gary. Defendants counter by claiming that they are not liable because of governmental immunity.

[132 MICHAPP 528] Plaintiff is alleging an intentional tort. 2 Michigan Law and Practice, Assault and Battery, Sec. 2, p. 529; Prosser, Torts (3d ed), Sec. 10, p. 40. As a general rule, intentional torts are not protected by governmental immunity: "[A]n intentional tort [is] not in the exercise or discharge of a governmental function." Lockaby v. Wayne County, 406 Mich. 65, 77, 276 N.W.2d 1 (1979). See also Armstead v. Jackson, 121 Mich.App. 239, 328 N.W.2d 541 (1981); Shunk v. Michigan, 97 Mich.App. 626, 296 N.W.2d 129 (1980). But at times, the government finds it necessary to do things that would normally be called intentional torts:

"A tort is a civil wrong and conduct which is wrong within one setting can be permissible within another. For example, a police officer may not intentionally strike a citizen peacefully walking down the street, but his duty may require the police officer to intentionally strike another citizen to prevent him from murdering a third peaceful citizen." Lockaby, supra, 406 Mich. 82, 276 N.W.2d 1 (Williams, J., concurring.)

Governmental actions which would normally constitute intentional torts are protected by governmental immunity if those actions are justified. Conversely, if the actions are not justified, they are not protected by governmental immunity. Smith v. Michigan, 122 Mich.App. 340, 344-346, 333 N.W.2d 50 (1983). Specifically, a police officer may use reasonable force when making an arrest. Firestone v. Rice, 71 Mich. 377, 38 N.W. 885 (1888); 35 CJS, False Imprisonment, Sec. 25, pp. 657-660. Therefore, " 'the measure of necessary force is that which an ordinarily prudent and intelligent person, with the knowledge and in the...