Flones v. Dalman, Docket No. 129641

CourtCourt of Appeal of Michigan (US)
Citation502 N.W.2d 725,199 Mich.App. 396
Docket NumberDocket No. 129641
PartiesGary L. FLONES and Pamela S. Flones, Plaintiffs-Appellees, Cross-Appellants, v. Larry DALMAN, Defendant-Appellant, Cross-Appellee, and Richard Jarman and John Boggs, Defendants-Cross-Appellees.
Decision Date19 April 1993

Gray, Sowle & Iacco, P.C. by Donald N. Sowle and Loren E. Gray, Mt. Pleasant, for plaintiffs.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., and Stewart H. Freeman and Thomas R. Wheeker, Asst. Attys. Gen., for defendant.


WAHLS, Judge.

In this tort action, defendant Larry Dalman appeals as of right the order of the Ingham Circuit Court that denied his motions for judgment notwithstanding the verdict and for a new trial. Plaintiffs have cross appealed the order that denied their motion for additur and the order that granted summary disposition in favor of defendants Richard Jarman and John Boggs.

In 1985 and 1986, the Michigan State Police received complaints of homosexual activity at highway rest areas around Lansing. State Police Lieutenant Jarman assigned Sergeant Boggs to investigate. Attention soon focused on the Holt rest area, where surveillance cameras were installed pursuant to a search warrant.

On March 8, 1986, Dalman, a state trooper, was on duty in an unmarked van parked at the rest area. He observed a blue 1984 Ford Escort enter the parking lot and pull alongside a pickup truck. After twenty minutes, the Escort moved and parked alongside Dalman's van. Ten minutes later, Dalman observed the driver leave the Escort and enter the monitored rest room, where he observed the driver, now known as subject S-53, engage in an act of gross indecency with subject S-54. S-53 appeared to be bearded and balding, wearing a baseball cap and casual jacket. S-53 then left the rest room and drove off. The Law Enforcement Information Network showed that the Escort's owner was "Pamela Fox."

At trial, plaintiff Pamela Flones, nee Fox, testified that she had loaned the Escort to her brother Jonathan Fox from March 7 to March 9. According to Pamela, Dalman came to her house at 11:30 p.m. on March 9 and told her that he was investigating a hit-and-run accident involving her automobile, which he said was driven by a bearded man in a baseball cap. She told Dalman that her brother Jonathan was the driver and gave Dalman his address and description, although she could not recall where he worked or the year of his birth. She also told Dalman that her husband, plaintiff Gary Flones, could possibly fit the description of the alleged hit-and-run driver. Dalman gave Pamela his business card and asked her to give it to Jonathan so Jonathan could contact him. Pamela gave Jonathan the card, but Jonathan never called Dalman.

Four days later, Dalman returned to plaintiffs' house after 11:00 p.m. Both plaintiffs awoke and came to the door. Dalman observed Gary as he stood behind Pamela in the doorway. A brief conversation ensued, during which Dalman kept staring at Gary. Pamela told Dalman that she had given his card to Jonathan earlier that day. Dalman made no inquiries regarding Jonathan and soon left.

On the basis of his observations of subject S-53 at the rest area and of Gary at home, Dalman concluded that Gary Flones was S-53. Dalman informed Sergeant Boggs, who obtained an arrest warrant. On March 18, 1986, Gary was arrested at work as part of a large roundup of suspects in the rest area criminal activity. Amidst intense media coverage, Gary was booked at a National Guard Armory along with forty other suspects.

Pamela and her father went to the Lansing State Police Post and attempted to explain the situation to Lieutenant Jarman. Jarman instructed Detective Sergeant Brooks to investigate, who soon concluded that Jonathan Fox was subject S-53, not Gary Flones. Fox's roommate and a neighbor of plaintiffs viewed the rest area videotape and identified S-53 as Fox. After Brooks' investigation, charges against Gary were dismissed by the prosecutor.

Plaintiffs' case went to trial against Dalman on theories of negligence, false arrest and imprisonment, malicious prosecution, and loss of consortium. Defendants Jarman and Boggs had been granted summary disposition on the ground of immunity before trial. The trial court denied the same to Dalman because of a question of fact regarding his good faith. The jury found in favor of plaintiffs with regard to each theory and entered a general damage award of $375,000 for Gary's injuries and zero for Pamela's consortium claim. The parties' posttrial motions were thereafter denied.

On appeal, Dalman first claims that plaintiffs' proofs failed to show that he was not immune from tort liability under Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984). 1 Specifically, Dalman claims that no evidence was presented from which the jury could conclude that he acted in bad faith. Dalman concludes that this alleged lack of proof compels the conclusion that he is immune from liability. We disagree.

According to Ross, lower level employees are immune from tort liability when they are (1) acting during the course of their employment and acting, or reasonably believe they are acting, within the scope of their authority, (2) are acting in good faith, and (3) are performing discretionary acts. Id., pp. 633-634, 363 N.W.2d 641. A plaintiff can establish bad faith by showing malicious or intentionally unlawful conduct. Gillam v. Lloyd, 172 Mich.App. 563, 577, 432 N.W.2d 356 (1988). Whether a tortfeasor acted in good faith is a question of fact that is generally left to the jury. Id. On appeal, we will view the evidence in a light most favorable to the plaintiff and give the plaintiff the benefit of every reasonable inference. If, after viewing the evidence, reasonable people could differ with regard to a tortfeasor's good or bad faith, the question should be left to the jury. Boggerty v. Wilson, 160 Mich.App. 514, 522, 408 N.W.2d 809 (1987).

Dalman argues that "bad faith" for the purpose of immunity should be something more than the malice required to establish a claim of malicious prosecution. He argues that "actual malice" is required, i.e., that he acted corruptly, dishonestly, or with a motive other than that of performing his duty. We find this proposed definition to be too narrow. For example, the "deliberate indifference" standard of conduct necessary for liability under 42 U.S.C. § 1983 has been held to be equivalent to bad faith under Ross. See Tobias v. Phelps, 144 Mich.App. 272, 282, 375 N.W.2d 365 (1985). In this case, plaintiffs' proofs tended to show that Dalman deliberately ignored exculpatory evidence produced during his investigation of subject S-53. A jury could infer that Dalman was deliberately indifferent to Gary's liberty interest. We conclude that plaintiffs presented sufficient evidence of bad faith to avoid the bar of immunity.

Dalman next argues that Michigan does not recognize a cause of action for what he characterizes as plaintiffs' theory of "negligent investigation." We agree that plaintiffs' negligence claim should not have gone to the jury. Dalman raised this issue in his motion for a directed verdict and in his posttrial motions. The trial court appeared to believe that the expert testimony presented by plaintiffs regarding the appropriate standard of care for police officers established a duty. This holding, however, begs the question whether a duty exists, because the standard of care in a negligence action pertains to whether a duty has been breached, not to whether a duty exists. Moning v. Alfono, 400 Mich. 425, 436-437, 254 N.W.2d 759 (1977). Likewise, plaintiffs' appellate reliance on the evidence they presented regarding the appropriate standard of care is misplaced.

There can be no negligence absent a duty, and a plaintiff has the burden of showing a duty owed by a defendant to the plaintiff. The question of duty is an issue of law for the court to decide. Moning, supra, p. 437, 254 N.W.2d 759. Whether the law will impose a duty depends upon the relationship between the actor and the injured party. Moning, supra, pp. 438-439, 254 N.W.2d 759; Horn v. Arco Petroleum Co., 170 Mich.App. 390, 392, 427 N.W.2d 582 (1988).

A police officer's duty to preserve the peace is owed to the public at large, not to any one individual. Eichhorn v. Lamphere School Dist., 166 Mich.App. 527, 545, 421 N.W.2d 230 (1988); Simonds v. Tibbitts, 165 Mich.App. 480, 483, 419 N.W.2d 5 (1987). Here, defendant's duty to the public is to detect and investigate crime; no duty is owed to plaintiffs as individuals. 2 Without a duty, there can be no negligence. This conclusion is supported by policy:

The law supports the use of litigation as a social means for resolving disputes, and it encourages honest citizens to bring criminals to justice. Consequently the accuser must be given a large degree of freedom to make mistakes and misjudgments without being subjected to liability. [Prosser & Keeton, Torts (5th ed.), § 119, p. 871.] 3

Plaintiffs' remedy lies elsewhere.

Dalman next argues that because Gary was arrested pursuant to a warrant that was valid on its face, there can be no claim for false arrest or false imprisonment. Dalman claims that this is true irrespective of the presence or absence of probable cause for arrest. While an officer who merely executes a warrant that is valid on its face is protected from liability, Belt v. Ritter, 18 Mich.App. 495, 499, 171 N.W.2d 581 (1969), aff'd 385 Mich. 402, 189 N.W.2d 221 (1971), this case does not present that situation. Although Dalman took no part in the arrest, he informed Sergeant Boggs that S-53 was Gary Flones, and that information became the basis for the issuance of a warrant for the arrest of Gary Flones. Dalman did not investigate p...

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