Hickey v. Zezulka

• Decision Date: 27 July 1989
• Docket Number: 90520 and 101188,Docket Nos. 90414
• Citation: 443 N.W.2d 180,177 Mich.App. 606
• Parties: , 55 Ed. Law Rep. 257 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. John Joseph HICKEY, Jr., Personal Representative of the Estate of John Joseph Hickey, III, Deceased, Plaintiff-Appellee, v. MICHIGAN STATE UNIVERSITY, Defendant-Appellant. John Joseph HICKEY, Jr., Personal Representative of the Estate of John Joseph Hickey, III, Deceased, Plaintiff-Appellee v. MICHIGAN STATE UNIVERSITY, Richard Bernitt, and Ferman Badgley, Defendants-Appellants, and Linda Zezulka, Defendant.
• Court: Court of Appeal of Michigan — District of US

Page 180

443 N.W.2d 180

177 Mich.App. 606, 55 Ed. Law Rep. 257

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.

John Joseph HICKEY, Jr., Personal Representative of the

Estate of John Joseph Hickey, III, Deceased,

Plaintiff-Appellee, v. MICHIGAN STATE UNIVERSITY, Defendant-Appellant.

John Joseph HICKEY, Jr., Personal Representative of the

Estate of John Joseph Hickey, III, Deceased,

Plaintiff-Appellee v. MICHIGAN STATE UNIVERSITY, Richard Bernitt, and Ferman

Badgley, Defendants-Appellants,

and

Linda Zezulka, Defendant.

Docket Nos. 90414, 90520 and 101188.

Court of Appeals of Michigan.

Submitted April 21, 1988.

Decided June 19, 1989.

Released for Publication July 27, 1989.

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

Zamplas, Paskin, Nagi, Baxter, Johnson & Walker, P.C. by Jeannette A. Paskin, Detroit, for defendants-appellants.

Before MICHAEL J. KELLY, P.J., and SULLIVAN, and SHAMO, ^* JJ.

SHAMO, Judge.

This case is the consolidation of three appeals as of right. In the first case, defendant Linda Zezulka appeals the jury verdict of $1,000,000 in favor of John Joseph Hickey, Jr., personal representative of the estate of John Joseph Hickey, III, deceased. In the second case, Michigan State University appeals the $650,000 Court of Claims verdict in favor of John Joseph Hickey, Jr., personal representative of the estate of John Joseph Hickey, III, deceased. And in the third case, defendants Michigan State University, Richard Bernitt and Ferman Badgley appeal the trial court's refusal to award defendants attorney fees. We affirm.

In the early morning hours of October 3, 1982, decedent John Joseph Hickey, III, a student at MSU, was driving along Harrison Road on the campus of MSU when officers of MSU's Department of Public Safety observed Hickey driving erratically. After Officer Linda Zezulka stopped Hickey's vehicle, she noticed that Hickey appeared to be intoxicated. Hickey did not have a driver's license because his license had been suspended. He was given sobriety tests and then taken into custody.

Hickey was taken to the East Lansing Police Department for a Breathalyzer test. At the East Lansing Police Department, Officer Zezulka perceived Hickey to be in a jocular mood and noted that Hickey was kidding around with the officers. The results of the Breathalyzer test showed blood alcohol levels of 0.15 and 0.16 percent.

After the Breathalyzer test, Officer Zezulka radioed Department of Public Safety Lt. Meyer for permission to take Hickey to the Ingham County Jail. Lt. Meyer denied Zezulka's request and directed her to take Hickey to the MSU Department of Public Safety for processing and to have his photograph taken.

After Hickey's photograph was taken, Officer Zezulka placed Hickey into the Department of Public Safety's holding cell 171 at about 3:20 a.m. Hickey was advised that he would soon be taken to the Ingham County Jail. Officer Zezulka did not remove any articles from Hickey's person. No one else was placed in the cell with Hickey. Holding cell 171 was one of three detention cells in MSU's Department of Public Safety building. Cell 171 had a nine to ten foot high ceiling and a concrete bench along one side. Above the bench was a heater with a metal mesh that was supported by four metal brackets which extended one to two inches from the wall.

After placing Hickey in the holding cell, Officer Zezulka carried on with her other duties. Zezulka spent some of the time in the processing room which was across the hall from the holding cell. It was Zezulka's responsibility to check on Hickey because no other officer was assigned to watch Hickey while he was in the cell. Zezulka did not check on Hickey until she was instructed to take him to the Ingham County Jail.

At about 3:57 a.m., Zezulka entered Hickey's cell and observed Hickey hanging from the heating device. Hickey had used his belt and socks to fashion a noose and hung himself from one of the brackets on the heating unit. Hickey was pronounced dead on arrival at Sparrow Hospital in Lansing, Michigan.

Plaintiff John Hickey, Jr., as personal representative of his deceased son's estate, brought an action against MSU in the Court of Claims. Plaintiff also brought a separate action against Ferman Badgley, the police commander of the MSU Department of Public Safety, Richard Bernitt, MSU's Director of Public Safety, and Linda Zezulka. The parties stipulated to the two cases being consolidated for trial.

At the end of the jury trial in this matter, the jury found defendants Badgley, Bernitt and Zezulka to be negligent. However, the jury found only Zezulka's negligence to be a proximate cause of Hickey's death. The jury additionally found that Zezulka violated Hickey's civil rights. The jury awarded plaintiff a verdict of $1,000,000 against Zezulka. The jury rendered a verdict of no cause of action against Badgley and Bernitt. The trial court later denied Zezulka's motion for a new trial, judgment notwithstanding the verdict and remittitur.

In the Court of Claims case against MSU, the trial judge found in favor of defendant MSU on plaintiff's civil rights claim under 42 U.S.C. Sec. 1983. However, the trial judge found that defendant MSU's building was defective or dangerous and awarded plaintiff $650,000. Defendants Badgley, Bernitt and MSU petitioned the trial court for attorney's fees pursuant to 42 U.S.C. Sec. 1988, because they prevailed on plaintiff's civil rights claim. On May 20, 1987, the trial court entered an order denying defendants' petition for attorney fees.

I

MSU argues that it is protected from liability by governmental immunity.

All government agencies are immune from tort liability when they are engaged in the exercise or discharge of a governmental function. Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984). MSU is a governmental agency under the governmental immunity act. M.C.L. Sec. 691.1401(d); M.S.A. Sec. 3.996(101)(d).

An exception to the governmental immunity doctrine exists when the facility in question constitutes a defective public building. M.C.L. Sec. 691.1406; M.S.A. Sec. 3.996(106). In providing this exception to governmental immunity, the Legislature intended to impose a duty to maintain safe public buildings. Reardon v. Dep't of Mental Health, 430 Mich. 398, 424 N.W.2d 248 (1988). In order for the public building exception to apply, the injury must result from a defect or dangerous condition of the building itself. Id. A dangerous or defective condition of a fixture may support a claim of liability under the public building exception to governmental immunity. Velmer v. Baraga Area Schools, 430 Mich. 385, 424 N.W.2d 770 (1988). A building may be dangerous or defective because of improper design, faulty construction, or the absence of safety devices. Bush v. Oscoda Area Schools, 405 Mich. 716, 730, 275 N.W.2d 268 (1979); Reardon, supra, 430 Mich. at pp. 409-410, 424 N.W.2d 248. The trier of fact is to determine whether a part of a building is defective in light of its assigned uses and whether the defect is a proximate cause of the injuries sustained. Bush, supra, 405 Mich. at p. 732, 275 N.W.2d 268; Lockaby v. Wayne Co., 406 Mich. 65, 76-77, 276 N.W.2d 1 (1979).

In the instant case, the Court of Claims judge found that the exposed bracketed heating device over the bench in the holding cell was a proximate cause of decedent's death. The court also found that the absence of a detoxification cell constituted a building defect in light of the assigned use of the cell. The court further determined that MSU had knowledge of the defective condition and failed to take action to protect those confined in the detention cell.

Findings of fact by the trial judge may not be set aside unless clearly erroneous. MCR 2.613(C). A finding is clearly erroneous where, although there is evidence to support the finding, the reviewing court is left with a definite and firm conviction that a mistake has been committed. Tuttle v. Dep't of State Hwys., 397 Mich. 44, 46, 243 N.W.2d 244 (1976).

After reviewing the record, we are convinced that the lower court did not err in finding a defect in MSU's Department of Public Safety building which was a proximate cause of decedent's death.

This Court has previously upheld a trial court ruling that the lack of a detoxification cell constituted a building defect, Davis v. Detroit, 149 Mich.App. 249, 386 N.W.2d 169 (1986), lv. den. 426 Mich. 856 (1986), and that the bar on a cell door could constitute a defect in a public building. Young v. Ann Arbor, 119 Mich.App. 512, 326 N.W.2d 547 (1982), (On Remand ), 147 Mich.App. 333, 382 N.W.2d 785 (1985), lv. den. 425 Mich. 862 (1986). Significantly, our Supreme Court in Reardon, supra, 430 Mich. at p. 413, 424 N.W.2d 248, cited with approval its pre-Ross decision in Lockaby, supra (building exception applicable where plaintiff alleged lack of padding in cell where he was being held), and stated that the case may be harmonized with the ruling in Reardon that an injury must result from a defect or dangerous condition of a public building. See also Kent Co. Prosecutor v. Kent Co. Sheriff (On Rehearing), 428 Mich. 314, 327 n. 13, 409 N.W.2d 202 (1987).

We note that in Reardon, and the companion case of Schafer v. Ethridge, our Supreme Court determined that the public building exception did not apply under the facts of those cases. 430 Mich. at 417, 424 N.W.2d 248. A similar conclusion was reached by this Court in Gunn v. Northville State Hospital, 171 Mich.App. 669, 430 N.W.2d 815 (1988) (assault/rape of mental patient at hospital by other unsupervised patients). However, in these cases, the complained-of injuries were the result of assaultive acts of intervening third parties rather than any...