Roberts v. City of Troy

• Decision Date: 27 September 1988
• Docket Number: Docket No. 95988
• Citation: 429 N.W.2d 206,170 Mich.App. 567
• Parties: Wesley ROBERTS, Personal Representative of the Estate of David Roberts Deceased, Plaintiff-Appellee, v. CITY OF TROY, a municipal corporation, Michael Kerr, Thomas Houghton, Daniel Bartley and Dennis Bobby, in their individual and official capacities, jointly and severally, Defendants-Appellants, and Forrest O. Fisher and Robert Mendham, Defendants.
• Court: Court of Appeal of Michigan — District of US

Page 206

429 N.W.2d 206

170 Mich.App. 567

Wesley ROBERTS, Personal Representative of the Estate of David Roberts Deceased, Plaintiff-Appellee, v. CITY OF TROY, a municipal corporation, Michael Kerr, Thomas Houghton, Daniel Bartley and Dennis Bobby, in their individual and official capacities, jointly and severally Defendants-Appellants and Forrest O. Fisher and Robert Mendham, Defendants.

Docket No. 95988.

Court of Appeals of Michigan.

Submitted May 19, 1988.

Decided Aug. 15, 1988.

Released for Publication Sept. 27, 1988.

Steven T. Budaj, P.C. by Steven T. Budaj, and Julie H. Hurwitz, P.C. by Julie H. Hurwitz and Thomas W. Stephens, Detroit, for plaintiff-appellee.

Cummings, McClorey, Davis & Acho, P.C. by T. Joseph Seward, Livonia, for defendants-appellants.

Before HOOD, P.J., and CYNAR and BURNS, ^* JJ.

HOOD, Presiding Judge.

Defendants appeal by leave granted from the trial court's orders of April 29, 1986, and September 22, 1986, denying defendants' motions for summary disposition. We affirm in part and reverse in part.

This case has a long and complex procedural history, and had its genesis in the September 17, 1977, arrest of the decedent, David Roberts, for fraudulent use of a credit card at a Sears store in Troy, Michigan. At the time of his arrest, Roberts plunged through a heavy glass door in an attempt to escape and received serious lacerations on his hands and face. He was treated at a local hospital and then taken to the City of Troy police station and lockup facility.

There was no special screening or questioning to determine if decedent was a high suicide risk. After he was processed, decedent was placed in a single isolation cell with horizontal crossbars. He was also given medication that had been prescribed at the hospital. Pursuant to Michigan Department of Corrections Rule 791.635, 1979 AC, R 791.635, the Troy lockup facility was required to make cell checks of the incarcerated inmates at least once every sixty minutes on a twenty-four-hour basis.

The following morning, a Troy police cadet, Robert Mendham, was on duty and responsible for making the hourly cell checks. At 10:42 a.m., Mendham checked decedent's cell and saw that he was alive. There is some dispute as to whether decedent was let out of his cell at 11:00 a.m. to make a phone call. At approximately 11:50 a.m., however, decedent was discovered hanging by his socks from one of the bars of the cell door.

Deposition testimony indicates that, shortly before 11:50 a.m., defendant Officer Dennis Bobby was on his way to the men's room at the police station when he heard the shaking of cell bars and yelling coming from one of the prisoners' cells. Officer Bobby went into the men's room for a few minutes and then decided to check on what the prisoner wanted. He discovered decedent hanging by his socks. Officer Bobby yelled for help and tried to lift decedent up by his waist to alleviate the pressure from his neck. Defendant Officer Michael Kerr arrived and tried to untie the knot but it was drawn too tight. Officer Bobby yelled for a knife so that decedent could be cut down from the noose. Defendant Officers David Bartley and Thomas Houghton responded to Bobby's calls for help. Officer Houghton then ran out and called for an ambulance. Decedent was eventually cut down from the cell bar and the officers attempted to administer CPR. Their efforts were unsuccessful and decedent was later pronounced dead on arrival at the hospital.

On June 25, 1979, decedent's mother, Celestine Roberts, brought an action in the United States District Court for the Eastern District of Michigan, seeking damages under 42 USC 1983, as well as under state claims of negligence, gross negligence and defective design of the lockup facility. The original complaint named the City of Troy, Troy Police Chief Forrest O. Fisher, and John Does I through V as defendants. On July 2, 1980, the complaint was amended to include Officers Kerr, Houghton, Bartley, and Bobby and Mendham as defendants. Decedent's brother Wesley Roberts became personal representative of decedent's estate when Mrs. Roberts died.

On May 21, 1982, the United States district court entered a memorandum opinion and order in which it: (1) granted summary judgment to defendants Kerr, Houghton, Bartley, Bobby and Mendham on plaintiff's federal civil rights claims; (2) granted summary judgment to defendant Fisher on plaintiff's state law claim on the basis of governmental immunity; (3) granted summary judgment to the City of Troy on plaintiff's claim that it was vicariously liable for the ultra vires conduct of defendant Fisher; (4) dismissed the other pendent state law claims; and (5) denied summary judgment to defendants City of Troy and Fisher on plaintiff's federal civil rights claims.

The case proceeded to a jury trial on plaintiff's federal civil rights claims against the City of Troy and Fisher. On March 7, 1983, the jury returned a verdict of no cause of action in favor of defendants and judgment was entered on the verdict. After several post-trial motions, plaintiff appealed the May 21, 1982, order and jury verdict to the United States Court of Appeals, Sixth Circuit.

On September 30, 1985, the Sixth Circuit Court of Appeals rendered its opinion which is reported at 773 F2d 720 (CA 6, 1985). In its decision, the Sixth Circuit affirmed the judgment of the district court on plaintiff's federal civil rights claims and the district court's order granting summary judgment to the City of Troy on plaintiff's state claim of vicarious liability for the ultra vires conduct of Fisher. However, the Sixth Circuit remanded the case to the district court to amend its May 21, 1982, order dismissing the state claim to recite that the dismissals were without prejudice. The Sixth Circuit also reversed the summary judgment granted to defendant Fisher on the basis of governmental immunity and remanded that issue to the district court for further consideration.

On October 31, 1985, an order of dismissal was entered by the United States district court indicating that the state law claims against Kerr, Houghton, Bartley, Bobby, Mendham and Fisher were dismissed without prejudice. The order further stated that the remaining state law claims against the City of Troy were also dismissed without prejudice. On November 7, 1985, the district court entered an amended order of dismissal.

On April 7, 1983, while the federal case was pending on appeal in the Sixth Circuit, plaintiff brought an action against the City of Troy and Fisher in the Wayne Circuit Court. Counts I and II of the complaint alleged state claims of negligence and gross negligence and Count III alleged a defective public building claim. Venue was changed to Oakland Circuit Court, and an Oakland circuit judge granted accelerated judgment on Counts I and II of the complaint on the basis of res judicata but denied defendants' motion for summary judgment on plaintiff's defective public building claim. After plaintiff amended his complaint, the trial judge, on December 12, 1984, again granted accelerated judgment on the previously litigated claims. Subsequently, the case was scheduled for trial but adjourned on several occasions. The parties then stipulated to dismiss the action without prejudice and on October 29, 1986, an order was entered dismissing the action without prejudice.

After the federal district court entered its amended order of dismissal on November 7, 1985, plaintiff filed the instant action on November 8, 1985. Count I of plaintiff's complaint alleges violation of ministerial duties and ultra vires conduct on the part of defendants City of Troy and Police Chief Fisher. Count II of plaintiff's complaint alleges violation of ministerial duties and ultra vires conduct on the part of defendants Kerr, Houghton, Bartley, Bobby and Mendham. Subsequently, plaintiff amended his complaint to include a third count alleging a defective condition in a public building. The defective public building claim is not at issue in this appeal nor are defendants Fisher and Mendham parties to this appeal.

Defendant City of Troy moved for summary disposition on the basis of res judicata. Additionally, defendants Kerr, Houghton, Bartley and Bobby moved for summary disposition on the basis of the statute of limitations. Both motions, as well as motions for reconsideration, were denied.

Defendant City of Troy then moved for summary disposition on the basis of governmental immunity and defendants Kerr, Houghton, Bartley and Bobby moved for summary disposition based upon the absence of a genuine issue of material fact. Those motions were also denied and this appeal followed.

First, we address the issue upon which we must reverse the findings of the trial court. The trial court erred in denying summary disposition to the City of Troy on plaintiff's claim of ultra vires conduct.

M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107) provides in part:

"Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function."

In Ross v. Consumers Power Co (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984), our Supreme Court iterated that all governmental agencies are immune from tort liability whenever they are engaged in the exercise of a governmental function, which the Court defined as "an activity which is expressly or impliedly mandated or authorized by constitution, statute or other law." 420 Mich. 620, 363 N.W.2d 641. The Ross Court also held that an agency's ultra vires activities are not entitled to immunity, and defined ultra vires activities as those which are "not expressly or impliedly mandated or authorized by constitution, statute, or other law." 420 Mich. 620, 363 N.W.2d 641.

The operation of a jail or detention facility is a governmental function, for which a city is generally immune. Davis v....