Gazette v. City of Pontiac

• Decision Date: 14 July 1995
• Docket Number: Docket No. 170857
• Citation: 536 N.W.2d 854,212 Mich.App. 162
• Parties: , 7 NDLR P 182 Cheriee GAZETTE, Individually and as Personal Representative of the Estate of Pamela Kay Bandy, Plaintiff-Appellant, v. CITY OF PONTIAC, Pontiac Police Department, Raymond Sain and Gary D. Bass, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 854

536 N.W.2d 854

212 Mich.App. 162, 7 NDLR P 182

Cheriee GAZETTE, Individually and as Personal Representative of the Estate of Pamela Kay Bandy, Plaintiff-Appellant, v. CITY OF PONTIAC, Pontiac Police Department, Raymond Sain and Gary D. Bass, Defendants-Appellees.

Docket No. 170857.

Court of Appeals of Michigan.

Submitted April 4, 1995, at Detroit.

Decided July 14, 1995, at 9:20 a.m.

Released for Publication Sept. 15, 1995.

Dib & Fagan, P.C. by Barry S. Fagan, Detroit, for plaintiff.

Cummings, McClorey, Davis & Acho, P.C. by Marcia L. Howe, Livonia, for defendants.

Before MARK J. CAVANAGH, P.J., and JANSEN and KOLENDA, ^* JJ.

MARK J. CAVANAGH, Presiding Judge.

Plaintiff, Cheriee Gazette, individually and as personal representative of the estate of Pamela Kay Bandy, appeals as of right from an order granting defendants' motion for summary disposition pursuant to MCR 2.116(C)(8). We affirm.

On September 18, 1990, Bandy left her home around 8:30 a.m. intending to get her car washed at the Perry Car Wash in Pontiac. When Bandy did not return home after a reasonable time had passed, plaintiff, Bandy's daughter, became concerned. Plaintiff and other members of the family contacted defendant Pontiac Police Department. Plaintiff gave the police a description of Bandy's white 1981 Cadillac Fleetwood, which had an unusual mark on the driver's door. Plaintiff also requested that the police investigate the Perry Car Wash, and she provided them with Bandy's bank account numbers so that they could inquire into whether unauthorized withdrawals had been made.

During the course of her conversation with the police, plaintiff mentioned that Bandy was an alcoholic and had recently been released from a rehabilitation program. Plaintiff informed the police that Bandy did not normally disappear for extended periods. Nevertheless, according to plaintiff, the police stated that they were familiar with Bandy, that Bandy was most likely on a drinking binge, and that she would eventually reappear. Plaintiff claims that the police informed her that they had investigated the car wash, had checked Bandy's bank accounts, and had discovered no evidence of wrongdoing, although apparently, in fact, they had done neither.

On September 24, 1990, the Waterford Township police pulled over a white 1981 Cadillac Fleetwood for a routine traffic violation. After discovering that the driver, Robert Hogan, had an outstanding bench warrant, the police searched the car and discovered Bandy's body in the trunk. Estimates placed the time of death at between twelve and thirty-six hours before the body was found. The cause of death was determined to be a combination of starvation, dehydration, and methanol poisoning from consumption of windshield washer fluid that had been stored in the trunk. Bandy had been physically and sexually assaulted.

Hogan was an employee of the Perry Car Wash. Between September 18 and September 24, Hogan had driven Bandy's Cadillac around Pontiac. During the time that Bandy was missing, unauthorized withdrawals were made from her bank accounts.

On September 23, 1992, plaintiff filed a complaint in the Oakland Circuit Court, alleging violations of the Michigan Constitution, the Handicappers' Civil Rights Act (HCRA), M.C.L. § 37.1101 et seq.; M.S.A. § 3.550(101) et seq., the Civil Rights Act, M.C.L. § 37.2101 et seq.; M.S.A. § 3.548(101) et seq., and negligence. The complaint also raised federal claims pursuant to 42 U.S.C. § 1983 and § 794 of the Rehabilitation Act, 29 U.S.C. § 794. The case was removed to the federal district court. On April 12, 1993, Judge Horace Gilmore granted defendants' motion for summary judgment of plaintiff's federal claims and remanded the case to the circuit court. ¹

On July 16, 1993, defendants moved for summary disposition pursuant to MCR 2.116(C)(8). The trial court noted that the police owe a duty to the general public and that the police owe a duty to a specific individual only if a special relationship has been formed. The trial court ruled that plaintiff had not shown that a special relationship existed between Bandy and defendants. The trial court also rejected plaintiff's argument that defendants failed to provide public services to Bandy because she was an alcoholic and thereby violated the HCRA and the Civil Rights Act. The trial court granted defendants' motion for summary disposition in an order entered on September 28, 1993.

On appeal, an order granting or denying a motion for summary disposition is reviewed de novo. Markillie v. Livingston Bd. of Co. Road Comm'rs, 210 Mich.App. 16, 18, 532 N.W.2d 878 (1995). A motion for summary disposition brought pursuant to MCR 2.116(C)(8) tests the legal sufficiency of the plaintiff's complaint and should be granted only if the claims are so clearly unenforceable as a matter of law that no factual development could possibly justify recovery. Rogalski v. Tavernier, 208 Mich.App. 302, 304, 527 N.W.2d 73 (1995).

I

Plaintiff first contends that the trial court erred in granting defendants' motion for summary disposition of plaintiff's claim under the HCRA. Plaintiff claims that defendants failed to provide Bandy a public service because she was an alcoholic. Plaintiff argues that because Bandy's alcoholism was unrelated to her ability to utilize and benefit from police protection, plaintiff presented a valid claim under the HCRA.

Article 3 of the HCRA prohibits the denial of access to public accommodations or public services because of a handicap. In order to establish a prima facie case of discrimination under Article 3, a plaintiff must allege that (1) he is "handicapped" as defined in the statute, (2) the handicap is unrelated to his ability to utilize and benefit from a place of public accommodation or public service, and (3) he has been discriminated against in one of the ways set forth in the statute. M.C.L. § 37.1103(e)(i)(B); M.S.A. § 3.550(103)(e)(i)(B); M.C.L. § 37.1302; M.S.A. § 3.550(302); Miller v. Detroit, 185 Mich.App. 789, 792, 462 N.W.2d 856 (1990).

As a preliminary matter, we must determine whether alcoholism is a handicap under Article 3 of the HCRA. We therefore look to the language of the statute. When interpreting a statute, we are obligated to determine and give effect to the intent of the Legislature. In construing a statute, we must give the language a valid and reasonable construction that gives effect to all its parts. Wright v. Vos Steel Co., 205 Mich.App. 679, 684, 517 N.W.2d 880 (1994).

Under the HCRA,

"handicap" means 1 or more of the following:

(i) A determinable physical or mental characteristic of an individual, which may result from disease, injury, congenital condition of birth, or functional disorder, if the characteristic:

* * * * * *

(B) For purposes of article 3, is unrelated to the individual's ability to utilize and benefit from a place of public accommodation or public service. [MCL 37.1103(e); MSA 3.550(103)(e).]

The HCRA expressly excludes alcoholism as a handicap with respect to employment discrimination under Article 2 where the condition prevents the employee from performing his duties. M.C.L. § 37.1103(f)(ii); M.S.A. § 3.550(103)(f)(ii). The omission of a provision in one part of a statute that is included in another part should be construed as intentional. See Farrington v. Total Petroleum, Inc., 442 Mich. 201, 210, 501 N.W.2d 76 (1993). Thus, we conclude that the Legislature intended that alcoholism be considered a handicap for the purposes of the ban on discrimination in the provision of public accommodations and public services under Article 3 of the HCRA.

Next we consider whether a police department is a "public service" under the HCRA. The statute defines a "public service" as

a public facility, department, agency, board, or commission, owned, operated, or managed by or on behalf of this state or a subdivision of this state, a county, city, village, township, or independent or regional district in this state, or a tax exempt private agency established to provide service to the public. [M.C.L. § 37.1301(b); M.S.A. § 3.550(301)(b).]

Defendant Pontiac Police Department is clearly a public service under the HCRA.

Nevertheless, the facts of this case, as alleged by plaintiff, do not support a finding that defendants refused to assist Bandy because of her alcoholism. Defendants merely knew that Bandy was missing for unknown reasons; they had no actual knowledge that she was in danger. The police officers, relying on their experience with Bandy, considered it likely that Bandy had gone off on a drinking binge. While, with the advantage of hindsight, it is clear that the officers were tragically wrong, we do not find a violation of the HCRA. The HCRA was not intended to modify the general rule that police officers are entitled to discretion in the performance of their duties. See Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 659-660, 363 N.W.2d 641 (1984). Because plaintiff does not claim that defendants were aware of Bandy's peril and nonetheless declined to help her because she was an alcoholic, we find that the trial court correctly granted defendants' motion for summary disposition of plaintiff's claim under HCRA.

II

Plaintiff next argues that the trial court erred in finding that defendants did not owe a duty to Bandy. A prima facie case of negligence requires proof of four elements: (1) a duty owed to the plaintiff by the defendant; (2) a breach of that duty; (3) causation; and (4) damages. Schneider v. Nectarine Ballroom, Inc. (On Remand), 204 Mich.App. 1, 4, 514 N.W.2d 486 (1994). The question whether a duty exists is one of law for the court's resolution. In a negligence action, summary disposition properly is granted pursuant to MCR 2.116(C)(8) if it is determined as a matter of law that the defendant owed no duty to the plaintiff. Schneider, supra.

Under the public-duty doctrine, a public official, such as a police officer, is regarded as...