Harris v. Kelly, 156

Decision Date04 June 1974
Docket NumberNo. 156,156
Citation218 N.W.2d 360,63 Wis.2d 664
PartiesNaomi HARRIS, Appellant, v. James O. KELLY et al., Respondents, Stephen Gnas et al., Defendants.
CourtWisconsin Supreme Court

Stafford, Rosenbaum, Rieser & Hansen, Brian E. Butler, Madison, for appellant.

Foley & Lardner, Milwaukee, for respondents.


The action is for false imprisonment and abuse of process. Following the filing of affidavits and counter-affidavits, the defendants' motion for summary judgment was granted, and the complaint was dismissed. Judgment was granted because the trial judge concluded that no material facts were in dispute and the facts as undisputed indicated that, as a matter of law, the plaintiff was unable to prove facts sufficient to sustain either of her causes of action.

It is the complaint of Naomi Harris that, on June 10, 1969, she went to the office of the Milwaukee Medical Society to ask that the death of her husband be investigated. She contends, however, that persons employed by the Society refused to help her and, to get rid of her, called the police and induced the officer to commit her for observation under sec. 51.04(1), Stats. The conduct of the employees of the Medical Society, it is contended, resulted in her false imprisonment, which was accomplished by abuse of process.

On the basis of affidavits filed and arguments before the court, the trial judge found that there were no material facts in dispute that required a trial.

The undisputed facts show that on June 10, 1969, Naomi Harris went to the office of Michael McManus at the Medical Society to discuss the Society's failure to investigate the death of her husband, a doctor. She remained in his office from 11:15 a.m. to 2:15 p.m. McManus was with her except from 12:30 p.m. to 1:30 p.m., when he attended a meeting. When McManus reported to Kelly, then Executive Secretary of the Medical Society, that Naomi Harris was making it impossible for him to proceed with his normal work and she was refusing to leave, Kelly suggested calling the police. Kelly called the police, told them there was an emotionally upset woman on the premises disrupting the orderly affairs of the office, and requested police assistance in escorting her from the premises. Two police officers arrived at about 2:15 p.m., talked briefly with McManus, and then spent some time alone with Naomi Harris, after which they took her by ambulance to Milwaukee County Hospital, Mental Health Division. She was kept at the hospital one day against her will and released.

The police took Naomi Harris to the hospital for temporary confinement pursuant to sec. 51.04(1), Stats., which provides in part:

'The sheriff or any other police officer may take into temporary custody any person who is violent or who threatens violence and who appears irresponsible and dangerous . . .. This is an emergency provision intended for the protection of persons and property. Such person may be kept in custody until regular proceedings are instituted to cope with the case, but not exceeding 5 days.'

There is only one material fact, found to be undisputed by Judge Moser, that the plaintiff contends is disputed.

On the basis of the affidavits in this case, mainly depositions, the trial judge found:

'12. On the sole basis of his own observation and independent of any representation or information received from the dispatcher or from the defendant McManus or any employee of the defendant Medical Society, Patrolman Gnas decided to have the plaintiff temporarily detained under authority of the emergency provisions of s. 51.04 Wis.Stat. (1969).'

This finding goes to the heart of the plaintiff's case. In her suit against the Medical Society and its employees, Naomi Harris contends that they are liable for false imprisonment because they requested or induced the police to confine her to the hospital.

In respect to the tort of false imprisonment, Prosser, Law of Torts (4th ed., hornbook series, 1971), sec. 11, p. 47, states:

'One who participates in an unlawful arrest, or procures or instigates the making of one without proper authority, will be liable for the consequences; but the defendant must have taken some active part in bringing about the unlawful arrest itself, by some 'affirmative direction, persuasion, request or voluntary participation.' There is no liability for merely giving information to legal authorities, who are left entirely free to use their own judgment . . ..'

Hence, if Finding 12 is undisputed, the plaintiff cannot recover. The gist of Patrolmen Gnas' statement, to paraphrase Prosser, tends to prove conclusively that the police made their own judgment in respect to Naomi Harris' commitment, and the Medical Society's employees merely furnished information. In addition, the defendants argue that the undisputed facts are sufficient to show a prima facie compliance with the standards stated in Maniaci v. Marquette University (1971), 50 Wis.2d 287, 295, 184 N.W.2d 168, in respect to the use of sec. 51.04, Stats.

The facts asserted in the affidavits, insofar as they are material to Officer Gnas' testimony, show that, after Naomi Harris was in his office about three or four hours, McManus reported to Kelly that he wanted to proceed with his normal work, but she refused to leave. Kelly called the police and told them there was a woman on the premises disrupting the orderly affairs of the office, she had been there about four hours, she was emotionally upset and they had tried to calm her down, she refused to leave, and Kelly requested police assistance in escorting her from the premises. McManus said Kelly did not advise the police that Naomi Haris was a mental problem.

The policeman taking Kelly's call recorded the 'MO' code, standing for mental observation. A Milwaukee policeman said the code might by used if the the caller used words like 'mentally disturbed,' 'mentally irrational,' or 'mentally deranged.' The code might also be used if the caller described bizarre conduct or dress by a person.

In the instant case the 'MO' code was apparently relayed to Officer Gnas when he was assigned to respond to Kelly's call. Gnas deposed that, although an officer may receive an 'MO' dispatch, he will not assume it actually is an 'MO' until he arrives at the scene and makes his own decision. This is so because the police get calls describing an 'MO' situation and it may be...

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