Napier v. Jacobs, Docket No. 62946

Decision Date11 December 1985
Docket NumberDocket No. 62946
Citation145 Mich.App. 285,377 N.W.2d 879
PartiesMichael NAPIER and Linda Napier, Plaintiffs-Appellees, v. Jeffrey JACOBS, Red Maruszewski and William Chidester, Defendants, and City of Highland Park, Defendant-Appellant. 145 Mich.App. 285, 377 N.W.2d 879
CourtCourt of Appeal of Michigan — District of US

[145 MICHAPP 287] Theodore Spearman, and Julie H. Hurwitz, of counsel, Detroit, for plaintiffs-appellees.

James W. McGinnis, Detroit, for the City of Highland Park.

Before V.J. BRENNAN, P.J., and ALLEN and GRIBBS, JJ.

[145 MICHAPP 288] V.J. BRENNAN, Presiding Judge.

Defendant, City of Highland Park, (defendant City) appeals as of right from the judgment entered on the jury's verdict awarding plaintiffs $60,000 in damages for defendant City's violation of plaintiff's civil rights under 42 U.S.C. Sec. 1983.

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 Maruszewski, who was also off duty, and William Chidester, who was Jacobs's partner), both of whom witnessed the shooting. Defendant City and the three individual officers were also sued under 42 U.S.C. Sec. 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.

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-duty 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[145 MICHAPP 289] 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.

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.

The first issue for our consideration is whether there was insufficient evidence as a matter of law [145 MICHAPP 290] to support a jury verdict on defendant City's liability under 42 U.S.C. Sec. 1983. First, we point out that, contrary to plaintiffs' assertions, a sufficiency of the evidence claim is reviewable on appeal although a motion for a new trial has not been made. Arnsteen v. U.S. Equipment Company, 390 Mich. 776, 777 (1973).

A motion for new trial must be made in order to preserve the issue of a verdict's being against the great weight of the evidence. Watson v. Dax, 334 Mich. 320, 54 N.W.2d 674 (1952), Burnett v. Mackworth G. Rees, Inc., 109 Mich.App. 547, 311 N.W.2d 417 (1981), lv. den. 417 Mich. 929 (1983). A motion for a directed verdict under former GCR 1963, 515.2 was a prerequisite to a motion for a judgment notwithstanding the verdict. See Watson, supra. Under MCR 2.610, a motion for a directed verdict is not necessary in order for a party to move for a judgment notwithstanding the verdict.

In the instant case, defendant City neither moved for a new trial nor for a judgment notwithstanding the verdict. A motion for a directed verdict was made, however, but the motion did not concern the question of whether there was sufficient evidence to go to the jury on the issue of the City's liability. Nonetheless, although procedure via the court rules was not properly followed here, to prevent a miscarriage of justice we will review the evidentiary issue presented by defendant as one that was raised in the directed verdict motion, and we will apply the standards for a review of a motion for judgment notwithstanding the verdict. We believe that review of a sufficiency of the evidence claim in a civil case as presented here would be almost, if not entirely, comparable to the standard of review for the grant or denial of a judgment notwithstanding the verdict.

[145 MICHAPP 291] "A judgment notwithstanding the verdict on defendants' motion is appropriate only if the evidence is insufficient as a matter of law to support a judgment for plaintiff. Basic Food Industries, Inc. v. Grant, 107 Mich App 685, 695; 310 NW2d 26 (1981). In reaching a decision, the trial court must view the evidence in the light most favorable to the plaintiff and give the plaintiff the benefit of every reasonable inference that could be drawn from the evidence. Isom v. Farrugia, 63 Mich App 351, 354-355; 234 NW2d 520 (1975). If after viewing the evidence in this manner reasonable men could differ, the question is one for the jury and judgment notwithstanding the verdict is improper. Id." Drummey v. Henry, 115 Mich.App. 107, 110-111, 320 N.W.2d 309 (1982), lv. den. 417 Mich. 895 (1983).

As explained in Killen v. Benton, 1 Mich.App. 294, 298, 136 N.W.2d 29 (1965), a " 'judgment notwithstanding the verdict may be allowed only if there is insufficient evidence, as a matter of law, to make an issue for the jury' ".

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

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State * * * 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 * * *."

The plaintiffs alleged and sought to prove at trial that defendant Jacobs, acted under color of law as an off-duty police officer and, while so acting, deprived Napier of his right to due process of law under the 14th Amendment. U.S.Const., Am. XIV. According to plaintiffs, Napier had the constitutional right to be free from physical harm, violence, and injury. The Sec. 1983 claim against [145 MICHAPP 292] defendant City included allegations that the City, by and through the acts and/or omissions of the police department supervisory personnel, violated Napier's due process rights by adopting a policy of tolerating firearm abuse and the use of racially derogatory language and that the policy proximately caused Jacobs's reckless use of his firearm in the assault on Napier. The plaintiffs also attempted to prove as an alternative theory of liability that the defendant City had a policy of failing to properly supervise, train, and retrain its officers in the use of firearms.

To establish a right to relief under 42 U.S.C. Sec. 1983, a plaintiff must plead and prove that: (1) the defendant deprived the plaintiff of a right secured by the constitution and laws of the United States; and (2) the defendant deprived the plaintiff of this right while acting under color of state law. Moore v. Detroit, 128 Mich.App. 491, 499, 340 N.W.2d 640 (1983); Rushing v. Wayne County, 138 Mich.App. 121, 358 N.W.2d 904 (1984), citing Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 63 L.Ed.2d 420 (1981), and Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976).

Municipalities (local governments) such as defendant City can be sued under 42 U.S.C. Sec. 1983. Monell v. Dep't. of Social Services of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980); Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981). See also City of Oklahoma City v. Tuttle, 471 U.S. ----, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985). Under Monell, supra, a municipality is a person. However, a "municipality cannot be held liable solely because it employs a tortfeasor--or, in other words, a municipality cannot be held liable under [145 MICHAPP 293] Sec. 1983 on a respondeat superior theory". Monell, 436 U.S. 691, 98 S.Ct. 2036. As stated by the Monell Court:

"We conclude, therefore, that a local government may not be...

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