Markis v. City of Grosse Pointe Park

• Decision Date: 21 November 1989
• Docket Number: Docket No. 102648
• Citation: 180 Mich.App. 545,448 N.W.2d 352
• Parties: Georgia MARKIS as Personal Representative, Plaintiff-Appellee, v. CITY OF GROSSE POINTE PARK, a municipal corporation, City Council for the City of Grosse Pointe Park, City Manager/Director for the City of Grosse Pointe Park, Police Officers and Supervisors of the Police Department for the City of Grosse Pointe Park, Defendants-Appellants, and Paul Conway, Sr. and Barbara Conway, Automobile Club of Michigan, Auto Club Insurance Association, Sara Elizabeth Conway, Estate of Wayne Joseph Kraus, deceased, and Suzanne Therese Kraus, Defendants.
• Court: Court of Appeal of Michigan — District of US

Page 352

448 N.W.2d 352

180 Mich.App. 545

Georgia MARKIS as Personal Representative, Plaintiff-Appellee, v. CITY OF GROSSE POINTE PARK, a municipal corporation, City Council for the City of Grosse Pointe Park, City Manager/Director for the City of Grosse Pointe Park, Police Officers and Supervisors of the Police Department for the City of Grosse Pointe Park, Defendants-Appellants and Paul Conway, Sr. and Barbara Conway, Automobile Club of Michigan, Auto Club Insurance Association, Sara Elizabeth Conway, Estate of Wayne Joseph Kraus, deceased, and Suzanne Therese Kraus, Defendants.

Docket No. 102648.

Court of Appeals of Michigan.

Submitted Dec. 22, 1988.

Decided Oct. 16, 1989.

Released for Publication Nov. 21, 1989.

Bleakley & McKeen, P.C. by Thomas H. Bleakley, Detroit, for plaintiff-appellee.

Gelamn, Friedman & Baumkel by Candyce M. Ewing and Mark S. Baumkel, Troy, for defendants-appellants.

Before MacKENZIE, P.J., and CYNAR and KOBZA, ^* JJ.

KOBZA, Circuit Judge.

Defendants bring this interlocutory appeal of the trial court's denial of their motion for summary disposition by leave granted. We reverse.

At 1:15 a.m. on November 11, 1984, a vehicle driven northbound on southbound I-275 by Sara Conway struck a vehicle driven by Timothy Kelly. Kelly died as a result of the accident. In her complaint, plaintiff alleged that approximately two hours before the accident Grosse Pointe Park police officer Paul Konefeke stopped Conway and issued her a citation for driving through a red light. Plaintiff alleged that, at the time she was stopped, Conway was visibly intoxicated, had a disheveled appearance and slurred speech, and exhibited impaired sensory and motor skills. Nevertheless, Officer Konefeke did not detain Conway, but permitted her to continue driving on the highway.

In the complaint, plaintiff alleged that the municipal defendants had implemented a de facto policy of not detaining residents of Grosse Pointe Park suspected of driving under the influence of liquor unless they had been involved in a high-speed chase or an accident and that, by consciously disregarding the danger created by such a policy, defendants created a nuisance. Plaintiff also alleged that, as a result of municipal policy or improper training, Officer Konefeke failed to ascertain that Conway was driving while intoxicated and thereby carried out official municipal policy. In addition, plaintiff alleged that the municipal defendants acted with common knowledge and purpose in implementing the police training and procedures designed to encourage the nonarrest of residents suspected of driving under the influence of liquor and that such conduct, under color of state law, deprived plaintiff's decedent of his civil rights, including his right to life. Finally, plaintiff alleged that the municipal defendants breached duties owed to the decedent and that their grossly negligent conduct proximately caused his death.

In March, 1986, defendants moved for summary disposition pursuant to MCR 2.116(C)(7) and (8) arguing that no relationship existed that would give rise to a special duty to protect decedent and that plaintiff's allegation that defendants' actions had violated the decedent's civil rights therefore failed to state a claim on which relief could be granted. Defendants also asserted that they were immune from tort liability under state law and that plaintiff's assertions of negligence therefore failed to state a claim on which relief could be granted. The trial court denied the motion.

In June, 1987, defendants moved for summary disposition pursuant to MCR 2.116(C)(7), (8) and (10). In addition to the arguments raised in the previous motion, defendants contended that no evidence showed that Grosse Pointe Park or its officials had a policy of deliberately failing to detain residents suspected of driving under the influence of liquor. On August 11, 1987, the trial court again denied the motion.

Initially, we note that plaintiff's assertion that defendants are not entitled to this interlocutory appeal is without merit. Defendants' second motion for summary disposition was based at least in part on different grounds and was filed after discovery had been completed. Defendants filed a timely application for leave to appeal the trial court's denial of their second motion, MCR 7.205(A), and this Court granted leave.

Defendants moved for summary disposition pursuant to MCR 2.116(C)(7), (8) and (10). The trial court determined that issues of material fact remained and that it could not conclude as a matter of law either that defendants were entitled to dismissal or that plaintiff had failed to state a claim upon which relief could be granted.

In determining whether a plaintiff has pled sufficient facts to overcome a claim of governmental immunity, the trial court must accept all well-pled allegations as true. A motion for summary disposition brought pursuant to MCR 2.116(C)(7) should not be granted unless no factual development could furnish a basis for recovery. Stoick v. Caro Community Hosp., 167 Mich.App. 154, 160, 421 N.W.2d 611 (1988). A motion for summary disposition brought pursuant to MCR 2.116(C)(8) tests the legal sufficiency of a claim. It must be decided on the pleadings alone, with all well-pled facts and reasonable inferences drawn therefrom taken as true. The motion should be denied unless the claim is clearly so unenforceable as a matter of law that no factual development could establish the claim and justify recovery. Formall, Inc. v. Community Nat'l Bank of Pontiac, 166 Mich.App. 772, 777, 421 N.W.2d 289 (1988). Governmental immunity is not an affirmative defense but a characteristic of government that prevents imposition of tort liability. Thus, a governmental entity should move for summary disposition pursuant to MCR 2.116(C)(8). If the defense of governmental immunity is raised on behalf of an individual employee, it is classified as an affirmative defense and should be raised pursuant to MCR 2.116(C)(7). Hoffman v. Genesee Co., 157 Mich.App. 1, 7-8, 403 N.W.2d 485 (1987), lv. den. 428 Mich. 902 (1987).

A motion for summary disposition brought pursuant to MCR 2.116(C)(10) tests the factual support for a claim. The trial court must consider the pleadings, affidavits, depositions, and other documentary evidence, must give the benefit of any reasonable doubt to the nonmoving party, and must draw any reasonable inferences in favor of that party. The nonmoving party has the burden of proving that a genuine issue of material fact exists. Summary disposition is proper only if the trial court is satisfied that no factual development that is possible could justify recovery by the nonmoving party. The appellate court is liberal in finding that a genuine issue of material fact exists. Dumas v. Auto Club Ins. Ass'n, 168 Mich.App. 619, 626, 425 N.W.2d 480 (1988); Loftis v. G.T. Products, Inc., 167 Mich.App. 787, 790-791, 423 N.W.2d 358 (1988), lv. den. 431 Mich. 895 (1988).

Plaintiff alleges that the municipal defendants acted with common knowledge and purpose in failing to adequately train police officers to recognize signs of intoxication and in failing to uphold the law by encouraging or directing police officers not to detain residents of Grosse Pointe Park suspected of driving under the influence of liquor and that this conduct, done under color of state law, deprived plaintiff's decedent of his civil rights, including his right to life, and thus constituted a violation of 42 U.S.C. Sec. 1983. Plaintiff also alleges that Officer Konefeke's actions in not detaining Conway constituted deliberate indifference to the rights of others, particularly the decedent's, and were grossly negligent and thus constituted a violation of 42 U.S.C. Sec. 1983.

Defendants argue that, because no special relationship existed between the municipality and the decedent, the harm to the decedent was too remote a consequence of the alleged conduct of both the municipal defendants and Officer Konefeke for the conduct to be considered the proximate cause of the harm to the decedent. Therefore, defendants contend, their actions did not constitute a violation of 42 USC 1983. Defendants conclude that they were entitled to summary disposition pursuant to MCR 2.116(C)(8). We agree.

42 U.S.C. Sec. 1983 provides in part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

In order to sustain a cause of action under Sec. 1983, the plaintiff must establish that: (1) the defendant acted under color of state law; (2) the conduct deprived the plaintiff of constitutional rights; and (3) the deprivation of rights occurred without due process of law. Jones v. Sherrill, 827 F.2d 1102, 1104 (CA 6, 1987).

Any cause of action brought in state court under 42 U.S.C. Sec. 1983 requires our review of federal law interpreting that federal statute. Tilli v. Northampton Co., 370 F.Supp. 459, 460 (E.D.Pa., 1974). We are fortunate to have the recent United States Supreme Court opinion in DeShaney v. Winnebago Co. Dep't of Social Services, 489 U.S. ----, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), to guide us in our resolution of the instant appeal.

In DeShaney, the Winnebago County Department of Social Services received numerous complaints concerning alleged physical abuse inflicted on the minor, Joshua DeShaney, by his father, with whom the child resided. The department took limited steps to protect Joshua but did not remove the child from his father's custody. A subsequent beating inflicted by the father resulted in the child's being brain damaged...