HILL BY HILL v. Mitchell, Civ. A. No. 85-CV-75662-DT.

• Decision Date: 13 November 1986
• Docket Number: Civ. A. No. 85-CV-75662-DT.
• Citation: 653 F. Supp. 1194
• Parties: Darrin HILL, by Elizabeth HILL, his conservator, and Elizabeth Hill, Individually, Plaintiffs, v. James MITCHELL, Richard Walczak, and City of Detroit, Department of Police, Defendants.
• Court: U.S. District Court — Western District of Michigan

653 F. Supp. 1194

Darrin HILL, by Elizabeth HILL, his conservator, and Elizabeth Hill, Individually, Plaintiffs, v. James MITCHELL, Richard Walczak, and City of Detroit, Department of Police, Defendants.

Civ. A. No. 85-CV-75662-DT.

United States District Court, E.D. Michigan, S.D.

November 13, 1986.

Harvey Chayet, Southfield, Mich., for plaintiffs.

Glen R. Warn (Mitchell), John P. Quinn (City of Detroit), Walter S. Nussbaum (Mitchell), S. Allen Early, III (Walczak), Detroit, Mich., for defendants.

MEMORANDUM OPINION AND ORDER

JULIAN ABELE COOK, Jr., District Judge.

This is a Motion for Reconsideration by Defendant, City of Detroit, of a decision by this Court on October 3, 1986, which granted, in part, and denied, in part, a similar motion by Plaintiff. On October 30, 1986, this Court entered an Order that enumerated the bases for its decision of October 3, 1986. Because Rule 17(k) of the Local Rules of the Eastern District of Michigan does not expressly prohibit a second motion for reconsideration and because the current motion raises new and substantial issues, this Court will address its merits.

I.

A brief discussion of the facts will be useful. Plaintiff alleges that at approximately 4:15 p.m. on March 23, 1985, he was walking with some friends near 24th Street in Detroit. According to the Complaint, Defendants, Mitchell and Walczak, Detroit police officers, called to Hill and his companions by using vile names, including racial epithets. Plaintiff asserts that Defendants, after throwing rocks, began to chase them. The Complaint goes on to state:

That subsequent thereto, Defendant Mitchell did then and there pull a handgun from his person, aiming said handgun at Plaintiff, Darrin Hill, and did then and there shoot Plaintiff, Darrin Hill.

Complaint at ¶ 9. Defendant contests various factual assertions in the Complaint.¹ However, because the City of Detroit's Motion to Dismiss is at issue, this Court is bound to accept all of the Plaintiff's well pleaded factual allegations as true. See e.g. United States v. State of Mississippi, 380 U.S. 128, 143, 85 S.Ct. 808, 816, 13 L.Ed.2d 717 (1965).

Plaintiff brought suit against both officers, as well as the City of Detroit. Plaintiff alleged that the City should be held liable under 42 U.S.C. § 1983 and 42 U.S.C. § 1985, as well as under state law tort. On July 10, 1986, this Court granted the City's Motion to Dismiss. However, upon Plaintiff's Motion for Reconsideration, this Court reinstated the state tort claim against the City on October 3, 1986.

In partially granting the original Motion for Reconsideration, this Court determined that it had incorrectly held that governmental immunity barred Plaintiff's claim of vicarious liability against the City of Detroit. In Ross v. Consumers Power, 420 Mich. 567, 592, 363 N.W.2d 641 (1984), the Michigan Supreme Court stated that in order to avoid governmental immunity, a Plaintiff must show that Defendant (1) was an "officer, employee, or agent, acting during the course of his employment and within the scope of his authority," and (2) committed "a tort while engaged in an activity which is non-governmental ..." In granting reinstatement of the tort claim, this Court held that, for the purposes of the dismissal motion, the activity of the officer should have been viewed as non-governmental because Plaintiff's repeated assertions (to wit, that no valid arrest occurred) had to be taken as true.² This meant that the officer had committed an ultra vires intentional tort, which could not be labeled a governmental function. Thus, Plaintiff, in the judgment of this Court, had met the two requirements for avoiding a governmental immunity defense. See Order at 2-4 (October 21, 1986). The City now challenges this ruling on a new basis, citing a recently decided case that calls into question whether Plaintiff can satisfy the first prong of Ross.

II.

In its Motion for Reconsideration, the City argues that if it is determined that the officers were carrying out a non-governmental function, then this Court must also hold that the commission of such an act was not within the "scope of their authority." Thus, the City contends that governmental immunity still bars the claim because Plaintiff has only satisfied the second prong of Ross, but not the first. The City even states that both prongs can never be satisfied because:

These case make it clear that, in Michigan, there is something like what logicians call the law of the excluded middle at work in the area of municipal liability for the torts of police officers. Except in cases falling within one of the statutory exceptions to immunity (e.g., negligent operation of an automobile) there are only two possibilities: either the tort is committed in the exercise of a governmental function so that the municipality is immune, or the tort is committed outside the course and scope of the officer's employment, so that there is no vicarious liability. The nature of police work is such that any act by a police officer must be within the exercise of a governmental function (namely, law enforcement) in order to be within the course and scope of his/her employment. There simply is no set of factual allegations that can get around this dilemma.

City of Detroit's Brief at 4.

The City relies on three cases for the proposition that an intentional tort by a police officer is not within the scope of an officer's authority. Lowery v. Department of Corrections, 146 Mich.App. 342, 380 N.W.2d 99 (1985) (state not vicariously liable for intentional torts by prison guards and inmates against an inmate); Slanga v. City of Detroit, 152 Mich.App. 220, 393 N.W.2d 487 (1986) (city not liable for intentional tort by police officer while arresting plaintiff for solicitation — decided on September 30, 1986); Callahan v. State Prison of Southern Michigan, 146 Mich.App. 235, 380 N.W.2d 48 (1985) (state not vicariously liable for theft of inmate's chain by prison employees because they were not acting within the scope of employment when the chain was stolen). The City's argument, however, really only stands on two cases because Callahan has been vacated and remanded by the Michigan Supreme Court in light of Ross. See Callahan, id., vacated and remanded, 425 Mich. 866, 387 N.W.2d 386 (1986). Nevertheless, the City's argument has an intuitive appeal. Its position is that officers who engage in non-governmental functions are not acting within the scope of their authority.

Before examining the merits, it is important to clarify what the City must show. First, because this is a Motion to Dismiss, the City must demonstrate there is absolutely no legal theory under which Plaintiffs would be entitled to relief. See Fed.R. Civ.P. 12(b)(6). All favorable inferences that can be made in support of a legal basis of relief must be drawn. C. Wright & A Miller, Federal Practice and Procedure § 1363 (1969). Second, under Local Rule 17(k), a motion for reconsideration can only be granted where the movant can demonstrate that the earlier decision contained a "palpable defect" and that "a different disposition of the case must result from a correction thereof." Thus, this Court must deny reconsideration unless it is absolutely certain that Plaintiffs are correct about their right to the drastic measures of dismissal.

The Michigan Supreme Court in Ross addressed the question of how courts should determine whether an action falls within someone's scope of authority or employment:

The existence of a tort, the individual tortfeasor's status as an employee, agent, independent contractor, etc., the question of whether the tortfeasor was acting during the course of employment and within the scope of authority, and the corresponding extent of the governmental agency's vicarious tort liability will generally be determined with reference to common-law tort and agency principles.

Ross, 420 Mich. at 624 n. 38, 363 N.W.2d 641. (emphasis added)

Thus, this Court must rely on common law tort and agency principles.

According to the Restatement (Second) of Agency § 229 (1984), a resolution of the question regarding whether an agent is acting within his scope of employment or authority requires the use of certain criteria:

(2) In determining whether or not the conduct, although not authorized, is nevertheless so similar to or incidental to the conduct authorized as to be within the scope of employment, the following matters of fact are to be considered:

(a) whether or not the act is one commonly done by such servants;

(b) the time, place and purpose of the act;

(c) the previous relations between the master and the servant;

(d) the extent to which the business of the master is apportioned between different servants;

(e) whether or not the act is outside the enterprise of the master or, if within the enterprise, has not been entrusted to any servant;

(f) whether or not the master has reason to expect that such an act will be done;

(g) the similarity in quality of the act done to the act authorized;

(h) whether or not the instrumentality by which the harm is done has been furnished by the master to the servant;

(i) the extent of departure from the normal method of accomplishing an authorized result; and

(j) whether or not the act is seriously criminal.

These criteria reflect the factors that are used by courts in determining whether an agent or employee is acting within the scope of his authority. The most significant omission in the City's brief and the cases relied upon is that there is absolutely no discussion of how these critical criteria relate to the instant cause.

An examination of this case in light of the Restatement criteria shows that the actions of these officers should be seen as being within the scope of their authority or employment for purposes of this dismissal motion, given Plaintiff's factual allegations that the City should have foreseen such a shooting and that the City made it possible. Numerous cases from...