Slanga v. City of Detroit

• Court: Court of Appeal of Michigan
• Writing for the Court: CYNAR
• Citation: Slanga v. City of Detroit, 393 N.W.2d 487, 152 Mich.App. 220 (Mich. App. 1986)
• Decision Date: 08 October 1986
• Docket Number: Docket No. 82110
• Parties: Kathleen SLANGA, Plaintiff-Appellee, v. CITY OF DETROIT, a municipal corporation, Defendant-Appellant.

Page 487

393 N.W.2d 487

152 Mich.App. 220

Kathleen SLANGA, Plaintiff-Appellee, v. CITY OF DETROIT, a municipal corporation, Defendant-Appellant.

Docket No. 82110.

Court of Appeals of Michigan.

Submitted April 3, 1986.

Decided June 2, 1986.

Released for Publication Oct. 8, 1986.

Goodman, Eden, Millender & Bedrosian by William H. Goodman, Detroit, for plaintiff-appellee.

Donald Pailen, Corp. Counsel, Abigail Elias, Deputy Corp. Counsel, and William L. Woodard and Salina Nelson, Assts. Corp. Counsel, Detroit, for defendant-appellant.

Before CYNAR, P.J., and WAHLS and BORRADAILE, ^* JJ.

CYNAR, Presiding Judge.

Plaintiff filed a complaint against the defendant alleging that it was vicariously liable for the actions of certain Detroit police officers who had falsely arrested her for solicitation. Plaintiff sought damages for assault and battery, false arrest, malicious prosecution and the intentional infliction of emotional distress. At the conclusion of the trial, the jury returned a verdict in favor of plaintiff and a judgment of $110,000 was entered against defendant. Defendant filed a motion for new trial, judgment notwithstanding the verdict, or, in the alternative, remittitur on the basis that it was immune from liability. The motion was denied and defendant appeals as of right.

Contradictory testimony was presented at trial regarding the circumstances surrounding plaintiff's arrest. Plaintiff testified that she went to a Detroit bar to meet her boyfriend. When she was unable to find him, plaintiff decided to leave. As she exited from the bar, a man grabbed her by the arm, showed her his police badge, and forced her to the police car. The officer threatened and handcuffed her.

After the officer transported plaintiff to the police station, she was ticketed for loitering and impeding the flow of traffic, strip searched by a female officer and then placed in a cell with another woman. Approximately 1/2 hour later, plaintiff was transported to another precinct where she was subjected to a second strip search and eventually permitted to phone her father. After several hours, she was released on bail.

Plaintiff was later arraigned and bound over for trial. However, when plaintiff appeared for the scheduled trial date, the arresting officer failed to appear and the case was dismissed. Plaintiff testified that she was emotionally upset after the incident and has remained afraid of Detroit police officers.

Defendant's case was based primarily on the testimony of Police Officer Issac Points. Points testified that on the night of plaintiff's arrest he was working with the vice unit and was monitoring the bar which was the scene of frequent prostitution activity. At approximately 11:30 p.m., he observed plaintiff standing outside the bar. Points watched plaintiff for approximately ten minutes during which time he saw her approach cars, talk to the occupants for several minutes then return to the front of the bar, all the time causing an obstruction of traffic. Eventually, Points walked up to plaintiff, identified himself as a police officer and arrested her for loitering.

Points testified that he did appear for trial on the scheduled date but, apparently because of some administrative error, he was directed to the wrong courtroom.

Defendant argues that the court erred in denying its motion for judgment notwithstanding the verdict because the officer was engaged in a governmental function and under Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984), defendant is immune from liability for the torts committed by its employees while performing a governmental function. Plaintiff argues that intentional torts committed by governmental employees within the scope of their authority are excepted from immunity under Ross, supra. The question which we must determine is whether the city was vicariously liable for the intentional torts committed by its police officer in the performance of his duty.

A judgment notwithstanding the verdict is appropriate only if the evidence is insufficient as a matter of law to support a judgment for the nonmoving party. When deciding a motion for judgment notwithstanding the verdict, the court must view the evidence in a light most favorable to the nonmoving party, giving the nonmoving party the benefit of every reasonable inference that could be drawn from the evidence. Napier v. Jacobs, 145 Mich.App. 285, 291, 377 N.W.2d 879 (1985). If the evidence is such that reasonable persons could differ, the question is one for the jury and judgment notwithstanding the verdict is improper. Id.

Under Ross, supra, 420 Mich. 625, 363 N.W.2d 641, a governmental agency can only be held vicariously liable for the torts of its employees if the tortfeasor was acting during the course of employment and within the scope of his authority. Even if these two conditions are met, liability can only be imposed if the tortfeasor was engaged in a nongovernmental or proprietary function or an activity which falls within a statutory exception. "[I]f the activity in which the tortfeasor was engaged at the time the tort was committed constituted the exercise or discharge of a governmental function * * * the agency is immune pursuant to Sec. 7 [M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107) ] of the governmental immunity act." Id. A governmental function is defined as one which is expressly or impliedly mandated or authorized by constitution, statute or other law. Id.

After viewing the evidence according to the appropriate standard, we believe that it is insufficient as a matter of law to support a judgment for the plaintiff. Plaintiff's claim is premised on the intentional torts of defendant's police officer. If we accept plaintiff's testimony as true, then we must conclude that the acts of the arresting officer were ultra vires and therefore, by definition, were outside the scope of the officer's authority. Ross, supra, p. 631, 363 N.W.2d 641. While an officer is authorized to preserve the public peace and arrest offenders, his authority does not extend to...