Hickey v. Zezulka

Decision Date01 January 1992
Docket NumberDocket Nos. 86606-86608,No. 1,1
Citation439 Mich. 408,487 N.W.2d 106
Parties, 440 Mich. 1203, 76 Ed. Law Rep. 542 John Joseph HICKEY, Jr. Personal Representative of the Estate of John Joseph Hickey, III, Deceased, Plaintiff-Appellee, v. Linda ZEZULKA, Defendant-Appellant, and Richard Bernitt and Ferman Badgley, Defendants. (On Resubmission) John Joseph HICKEY, Jr., Personal Representative of the Estate of John Joseph Hickey, III, Deceased, Plaintiff-Appellee, v. MICHIGAN STATE UNIVERSITY, Defendant-Appellant. (On Resubmission) Calendar,
CourtMichigan Supreme Court

Church, Kritselis, Wyble & Robinson, P.C. by J. Richard Robinson, James T. Heos, Lansing, for plaintiff-appellee.

Jeannette A. Paskin, Paskin, Nagi & Baxter, P.C., Detroit, for defendants-appellants.

Plunkett & Cooney, P.C. by Christine D. Oldani, Detroit, for amicus curiae, Michigan Mun. League.


BRICKLEY, Justice.

The plaintiff brought these two actions after his son committed suicide in a Michigan State University Department of Public Safety holding cell. In the first action, the plaintiff sued officers Linda Zezulka, Richard Bernitt and Ferman Badgley, and the three corporations involved in the original construction of the MSU Department of Public Safety building. In the second action, the plaintiff sued Michigan State University in the Court of Claims. On August 4, 1983, the parties agreed to consolidate the two cases into one proceeding. Eventually, the corporate defendants were voluntarily dismissed from the circuit court action, and defendants Bernitt and Badgley were found not liable by a jury. The plaintiff has not appealed any issues related to these defendants. The jury returned a verdict for the plaintiff against Zezulka and the Court of Claims against MSU. Both actions were upheld by the Court of Appeals.

We must determine if a plaintiff can maintain a claim against a governmental entity and its officers for a pretrial detainee's suicide under either state law or 42 U.S.C. § 1983. While this Court's order granting leave to appeal specified eight issues for consideration, only four need resolution:

1) Whether the public building exception, M.C.L. § 691.1406; M.S.A. § 3.996(106), to governmental immunity is applicable to the claims against Michigan State University;

2) Whether the plaintiff presented sufficient evidence of deliberate indifference to support a claim under 42 U.S.C. § 1983 that Zezulka violated Hickey's civil rights;

3) Whether, relative to plaintiff's negligence claims, Zezulka's actions were discretionary-decisional, affording her the protection of state governmental immunity under Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984); and

4) Whether, relative to the plaintiff's negligence claims, the trial court erred when it failed to give Zezulka's requested standard jury instruction on comparative negligence and a requested instruction on intervening cause.

We hold that the plaintiff's claim against MSU is barred by state governmental immunity. In so holding, we find that the public building exception, M.C.L. § 691.1406; M.S.A. § 3.996(106), is inapplicable to this case. We also hold that the plaintiff presented insufficient evidence of deliberate indifference to support a claim under § 1983 and we reverse the trial court's denial of judgment notwithstanding the verdict on the civil rights claim. Further, we find that Zezulka's actions were ministerial-operational and do not afford her the protection of state governmental immunity, and that the trial court correctly refused to instruct the jury on intervening cause. Finally, the signers of this opinion would hold that the trial court also correctly refused to give an instruction on comparative fault.

We therefore reverse the decisions of the Court of Claims and the Court of Appeals applicable to MSU. We reverse the decisions of the circuit court and the Court of Appeals with regard to the plaintiff's § 1983 claim against Zezulka and direct entry of judgment for the defendant on that claim. Because a majority of the Court has found error in the failure to instruct on comparative fault, we reverse the decisions of the circuit court and the Court of Appeals with regard to the plaintiff's negligence claim and remand for a new trial limited to the issue of the plaintiff's damages.


On October 3, 1982, between 1:00 a.m. and 2:00 a.m., Hickey was observed driving erratically on Harrison Road in East Lansing, Michigan. Zezulka, an officer of the MSU Department of Public Safety (DPS), stopped Hickey, administered a number of field sobriety tests, and eventually placed him under arrest for driving under the influence of intoxicating liquor, M.C.L. § 257.625a; M.S.A. § 9.2325(1). Zezulka then transported Hickey to the East Lansing Police Department (ELPD) for Breathalyzer tests. Both Zezulka and ELPD Sergeant Louis Muhn observed that Hickey appeared to be in a good mood and appeared to have a generally positive demeanor. While at the ELPD, Sergeant Muhn asked Hickey for some general background information, which was necessary for the Breathalyzer tests, and observed Hickey for at least twenty minutes prior to Zezulka's departure with Hickey.

Zezulka then requested that she be allowed to transport Hickey to the Ingham County Jail. However, Zezulka's superior denied the request because he was concerned about manpower shortages while she was gone. Zezulka complied with her superior's order and took Hickey to the DPS for processing and photographing. After processing Hickey, Zezulka placed him in a holding cell at about 3:20 a.m. Zezulka did not remove any of Hickey's personal articles or clothing, including his belt, even though the DPS had a written policy to remove personal articles from prisoners. The policy stated:

"[N]o prisoner shall be left unattended unless he is first searched and secured in a segregation room. All offensive and defensive weapons or other objects which could harm an officer, the prisoner or other prisoners shall be removed and properly secured."

However, Zezulka did advise Hickey that he would soon be taken to the Ingham County Jail.

The Court of Appeals described the holding cell in which Zezulka placed Hickey as "a nine to ten foot high ceiling and a concrete bench along one side. Above the [stone] bench was a heater with a metal mesh that was supported by four metal brackets which extended one to two inches from the wall," 177 Mich.App. 606, 610, 443 N.W.2d 180 (1989), and ran along the upper portion of the wall. The door to the holding cell was solid metal and had a 10 X 10 inch window that officers used to view any detainees. A desk officer monitored any sounds coming from the area through a microphone located in the cell.

After placing Hickey in the holding cell, Zezulka went about her other duties. Although the DPS also had a policy stating that the officer who brings a detainee into the department is responsible to check on the detainee, Zezulka did not check on Hickey until she went to take him to the Ingham County Jail at 3:57 a.m., approximately thirty-seven minutes after she initially placed him in the holding cell.

Upon entering the cell, Zezulka saw Hickey hanging by a noose fashioned from his belt and socks. Hickey had hanged himself from one of the four metal brackets that attached the heating unit to the wall. Despite efforts to revive Hickey, he was pronounced dead on arrival at Sparrow Hospital in Lansing, Michigan.

On November 1, 1982, John Joseph Hickey, Sr., filed a complaint in the Ingham Circuit Court as the personal representative of the John Joseph Hickey, Jr., estate against Zezulka and the other defendants. For the purposes of this appeal, the plaintiff's complaint alleged negligence, gross negligence, and intentional and grossly negligent acts in violation of Hickey's civil rights under 42 U.S.C. § 1983. On June 9, 1983, the plaintiff also commenced a lawsuit in the Court of Claims against MSU, claiming that the holding cell where Hickey hanged himself was in a dangerous or defective condition and that MSU violated Hickey's civil rights.

MSU and Zezulka filed answers and amended answers to the plaintiff's complaint, claiming state governmental immunity as a defense. However, Zezulka's pleading did not include an affirmative defense of qualified immunity to the plaintiff's 42 U.S.C. § 1983 claim. Zezulka did not allege that defense until filing a subsequent motion for summary disposition.

In an opinion dated May 10, 1985, the trial court held that Hickey had sufficiently pleaded a cause of action under the public building exception, M.C.L. § 691.1406; M.S.A. § 3.996(106), to avoid MSU's governmental immunity. The trial court also held that Zezulka's failure to remove Hickey's belt was a ministerial act not entitled to lower-level governmental immunity under Ross, supra. Finally, the trial court held that although no valid claim existed under the Eighth Amendment of the United States Constitution against MSU or the individual defendants, a claim under 42 U.S.C. § 1983 for violating Hickey's Fourteenth Amendment rights had been sufficiently pleaded against Zezulka. The trial court did not discuss Zezulka's claims of qualified immunity.

The claims against Zezulka and the other individual defendants were tried by a jury. During the trial, witnesses gave testimony about suicides, the effects of intoxication, and the effect of isolating drunken and suicidal individuals. One expert testified that intoxicated persons normally do not look depressed because they do not care about the things that originally depressed them. Other experts testified that they did not expect any officer to be able to ascertain if a person is suicidal. The testimony also indicated that Hickey died after only a few minutes in the holding cell. At the...

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