Napier v. Jacobs, Docket No. 77772

CourtSupreme Court of Michigan
Citation429 Mich. 222,414 N.W.2d 862
Docket NumberDocket No. 77772
PartiesMichael NAPIER and Linda Napier, Plaintiffs-Appellants, v. Jeffrey JACOBS, Ted Maruszewski and William Chidester, Defendants, and City of Highland Park, Defendant-Appellee.
Decision Date21 December 1987

Theodore Spearman, Theodore Spearman, P.C., Julie H. Hurwitz, Julie H. Hurwitz, P.C., Detroit, for Michael Napier and Linda Napier.

James W. McGinnis, Detroit, for defendant-appellee, City of Highland Park.

BOYLE, Justice.

In the instant case, the Court of Appeals found insufficient evidence to support the jury verdict in favor of the plaintiffs. It therefore ordered judgment in favor of the city, notwithstanding the defendant's failure to challenge the sufficiency of the evidence at trial with motions for a directed verdict, for judgment notwithstanding the verdict, or for a new trial. We reverse the decision of the Court of Appeals because defendant failed in this civil case to preserve the issue of the sufficiency of the evidence by proper motions at trial, and no extraordinary circumstance creating a miscarriage of justice has been presented to obviate the normal rule that to preserve an issue for appellate review, it must be properly raised at trial.


Michael Napier and his wife filed suit under 42 USC 1983 against defendant City of Highland Park and individual city police officers for violation of Mr. Napier's civil rights. The jury awarded $60,000 in damages against the city in Mr. and Mrs. Napier's favor.

The immediate facts concerning Mr. Napier's injury are described in the Court of Appeals decision, 145 Mich.App. 285, 288-289, 377 N.W.2d 879 (1985):

"The case arose out of events which occurred on October 14, 1976, when plaintiff Michael Napier was shot by a fellow Highland Park police officer, Jeffrey Jacobs, who was off duty at the time. Plaintiffs brought suit alleging state law causes of action against Jacobs and two other police officers (Red [sic] Maruszewski, who was also off duty, and William Chidester, who was Jacobs's "Testimony established that on October 14, 1976, Napier, a black rookie police officer, was partnered with defendant Chidester, who was white. They were working the midnight shift, which had begun at 11:00 p.m. on October 13. Chidester, as the senior officer, drove their patrol car. While on patrol, Chidester stopped the car to talk with two other officers who informed Napier and Chidester that they had put some Communist Workers' Party bumper stickers on the cars of two white off- police officers, Jacobs and Maruszewski, who were in a local bar at the time. Chidester parked the patrol car across the street from the bar to observe Jacobs's and Maruszewski's reaction to the bumper stickers. Later that evening, while Chidester and Napier patrolled, Chidester observed Maruszewski's car parked illegally in front of a taxicab dispatch office on Pasadena. Napier and Chidester went up to the office and found Jacobs and Maruszewski inside. Jacobs, who drove a taxicab part-time, testified that he went to the dispatch office to inquire about getting a bond plate to carry passengers in the City of Detroit.

                partner), both of whom witnessed the shooting.  Defendant City and the three individual officers were also sued under 42 USC 1983.   A verdict was returned against Jacobs in the amount of $50,000 for the state claims and $25,000 for the 42 USC 1983 deprivation of civil rights claim.  Verdicts of no cause of action were returned in favor of Chidester and Maruszewski.  Jacobs is not a party to this appeal

"Chidester made a comment to Jacobs to the effect that 'I didn't know you were a liberal,' apparently referring to the bumper stickers. Jacobs suggestively grabbed his groin and then called Chidester a 'cocksucker.' Chidester pulled his service revolver, suggesting that Jacobs 'suck on this.' Jacobs retorted with 'here's yours' and then drew his pistol. Maruszewski also drew his gun.

"The focus then turned to Napier, the only officer who had not drawn his gun. Jacobs pointed his gun at Napier, saying 'I think I'll shoot an ahbed.' Ahbed is Syrian slang terminology for blacks. Napier testified that Jacobs approached him and said he was going to 'blow his guts out,' to which Napier replied 'go ahead, I'm wearing a flak vest. I need it tested anyway.' Jacobs then said he would blow Napier's brains out and he pointed the gun in the direction of Napier's head. Napier replied, 'If I had any brains I would not be here.' According to Napier, Maruszewski commented that a bullet would just bounce off Napier's head since what was in there were rocks. Napier testified that Jacobs then turned away saying something like 'stupid nigger.' Napier then retorted 'mighty funny you didn't tell anybody I was your long lost brother.' Jacobs then turned around toward Napier and the gun discharged into Napier's abdomen."

Mr. Napier's suit charged that the city's customs and direct participation in and deliberate indifference to systematic patterns of reckless firearm handling and racially charged verbal "horseplay" among police officers resulted in Mr. Napier's gunshot wound. The jury found against the city and against the officer who shot Mr. Napier. At trial, the city did not challenge the sufficiency of the evidence with motions for directed verdict, motions for judgment notwithstanding the verdict, or motions for a new trial. Judgment for Mr. Napier was entered, and the defendant city appealed.

On September 3, 1985, the Court of Appeals reversed the jury's verdict and ordered entry of judgment in favor of the city, notwithstanding the jury verdict. The Court of Appeals ruled that the plaintiffs' proofs were insufficient as a matter of law to establish municipal liability under 42 U.S.C. Sec. 1983 and that the evidence failed to establish a prima facie case of reckless supervision or a custom of reckless firearm handling as required by Monell v. Dep't. of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The Court of Appeals also ruled that, while there was sufficient proof to establish a city custom of tolerating racially

derogatory language between officers, there was insufficient evidence to establish a causal connection between this custom and the shooting.


A general rule of trial practice is that failure to timely raise an issue waives review of that issue on appeal. See Spencer v. Black, 232 Mich. 675, 206 N.W. 493 (1925) (issue raised for the first time on appeal not properly before the Court); Molitor v. Burns, 318 Mich. 261, 263-265, 28 N.W.2d 106 (1947) (failure to renew motion for directed verdict at close of defendant's case waived any error). Generally, to preserve an issue for appellate review, it must be properly raised at trial. Kinney v. Folkerts, 84 Mich. 616, 625, 48 N.W. 283 (1891) ("[p]arties cannot remain silent, and thereby lie in wait to ground error, after the trial is over, upon a neglect of the court to instruct the jury as to something which was not called to its attention on the trial, especially in civil cases"); Moden v. Superintendents of the Poor, 183 Mich. 120, 125-126, 149 N.W. 1064 (1914) (statute of limitations defense waived by failure to raise it at trial); Miller v. Cook, 292 Mich. 683, 688-689, 291 N.W. 54 (1940) (absent proper motion for a directed verdict of negligence as a matter of law, the question cannot be raised on appeal); Taylor v. Lowe, 372 Mich. 282, 284, 126 N.W.2d 104 (1964) ("counsel may not stand by, electing as we must assume to 'take his chances on the verdict of the jury' [citations omitted] and then raise questions which could and should have been raised in time for corrective judicial action"). The rule is based upon the nature of the adversary process and the need for judicial efficiency. 3 LaFave & Israel, Criminal Procedure, Sec. 26.5(c), pp. 251-252, summarizes the basis for this rule:

" 'There are many rationales for the raise-or-waive rule: that it is a necessary corollary of our adversary system in which issues are framed by the litigants and presented to a court; that fairness to all parties requires a litigant to advance his contentions at a time when there is an opportunity to respond to them factually, if his opponent chooses to; that the rule promotes efficient trial proceedings; that reversing for error not preserved permits the losing side to second-guess its tactical decisions after they do not produce the desired result; and that there is something unseemly about telling a lower court it was wrong when it never was presented with the opportunity to be right. The principal rationale, however, is judicial economy. There are two components to judicial economy: (1) if the losing side can obtain an appellate reversal because of error not objected to, the parties and public are put to the expense of retrial that could have been avoided had an objection been made; and (2) if an issue had been raised in the trial court, it could have been resolved there, and the parties and public would be spared the expense of an appeal.' " (Quoting State v. Applegate, 39 Or.App. 17, 21, 591 P.2d 371 ( [1979].)

In the case of a challenge based upon an asserted insufficiency of the evidence, a challenge entered at the close of a party's evidence has the advantage of pointing out deficiencies in a case before the additional judicial expense of jury deliberations occurs. A party faced with a challenge during trial might well be able to remedy an insufficiency without the time and expense of appellate review followed by a new trial. While, in general, motions for directed verdict under MCR 2.515 are no longer required in order to move for judgment notwithstanding the verdict under MCR 2.610, as a matter of trial technique, challenges to the sufficiency of the evidence are certainly appropriate, if not required, at the close of the opponent's case. At...

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