Solomon v. Shuell

• Decision Date: 14 March 1988
• Docket Number: Docket No. 90688
• Parties: Estate of Joseph SOLOMON by Charlotte Solomon, Personal Representative, Plaintiff-Appellant, v. John SHUELL, City of Detroit, Department of Police, Michael Hall, and Richard Nixon, jointly and severally, Defendants-Appellees. 166 Mich.App. 19, 420 N.W.2d 160
• Court: Court of Appeal of Michigan — District of US

Page 160

420 N.W.2d 160

Estate of Joseph SOLOMON by Charlotte Solomon, Personal Representative, Plaintiff-Appellant, v. John SHUELL, City of Detroit, Department of Police, Michael Hall, and Richard Nixon, jointly and severally Defendants-Appellees.

Docket No. 90688.

166 Mich.App. 19, 420 N.W.2d 160

Court of Appeals of Michigan.

Submitted Aug. 5, 1987.

Decided Feb. 1, 1988.

Released for Publication March 14, 1988.

[166 MICHAPP 21] Thurswell, Chayet & Weiner by Harvey Chayet, Southfield, for plaintiff-appellant.

Marion R. Jenkins, Detroit, for defendants-appellees.

Before SHEPHERD, P.J., and HOOD and T.M. BURNS, ^* JJ.

HOOD, Judge.

Plaintiff appeals as of right from a judgment entered pursuant to a jury verdict in which the jury found for the plaintiff and assessed damages at $100,000. The jury, however, found decedent eighty percent negligent and defendant John Shuell twenty percent negligent in the shooting death of decedent by Shuell, resulting in a total judgment for plaintiff in the amount of $20,000.

On March 20, 1981, officers Michael Hall, John Shuell, and Richard Nixon of the Detroit Police Department were watching a house on Curtis Street in Detroit. Persons in the home were suspects in two recent armed robberies. The officers were driving in unmarked police cars and were wearing plain clothes. The officers observed a Cutlass automobile arrive at the home, pick up two men, and leave. The driver was subsequently identified as Alvin Solomon, decedent's son. Nixon later saw the automobile stop at the home of Alvin and his family. A passenger, Wynee Green, was in the passenger seat. Nixon parked his car in front of Alvin, and Shuell pulled up behind Alvin. The [166 MICHAPP 22] testimony at trial differed as to what happened next. Alvin testified that Nixon "rushed" him, and, without identifying himself as a police officer, threw him against the car and removed a BB gun from his waistband. Shuell then grabbed him by the neck, put a gun to his head, and dragged him towards the rear of the car. Shuell did not identify himself as a police officer. Alvin further testified that he yelled at Green to get his father, the decedent. Decedent came out of the house with a gun, pointing the gun at the ground. Before decedent got off the porch, Shuell started shooting at him and did not stop until decedent was hit.

Nixon testified that he did identify himself as a police officer. According to Nixon, decedent came out of the house with his gun in both hands and his arms extended in front of him. Nixon heard a shot and saw decedent's hands recoil as if he had fired the shot. He then heard several shots and saw decedent fall.

Shuell testified that he and Nixon did identify themselves as police officers. As he was patting Alvin down, he saw decedent running at him with a gun. Decedent stopped about fifteen feet away and assumed a two-handed combat stance. Shuell fired when he saw decedent pull the trigger. Decedent died at the scene.

Plaintiff, the personal representative of decedent's estate, brought this wrongful death action against the Detroit Police Department, Shuell, Hall, and Nixon. Nixon was voluntarily dismissed, and directed verdicts were granted in favor of the police department and Hall. The case against Shuell went to trial. Plaintiff alleged against Shuell negligence, assault and battery, and a violation of decedent's constitutional right to life. Following a fourteen-day jury trial, the jury was given a special verdict form. The jury found that [166 MICHAPP 23] Shuell was negligent, and that Shuell's negligence was a proximate cause of decedent's death. The jury also found that decedent was negligent in his own death, and assessed decedent's negligence at eighty percent. The jury found Shuell did not commit an assault and battery upon decedent, and did not answer the question whether Shuell deprived decedent of life without due process. The jury found plaintiff's damages to be $100,000. A judgment for plaintiff in the amount of $20,000 was entered. Plaintiff appeals as of right.

On appeal, plaintiff first claims that the trial court's jury instruction on the rescue doctrine was erroneous. The trial court gave a modified version of SJI2d 13.07, the rescue doctrine instruction, which states:

"A person who goes to the rescue of another who is in imminent and serious peril caused by the negligence of someone else is not contributorily negligent, so long as the rescue attempt is not recklessly or rashly made."

The court instructed the jury as follows:

"If you find, under the facts, from the evidence, that Alvin Solomon was in imminent and serious peril, a person who goes to the rescue of another who is in imminent and serious peril caused by the negligence of someone else, is not contributorily negligent, so long as the rescue attempt is not recklessly or rashly made."

Plaintiff objected to this instruction, arguing that the rescue doctrine should apply not only if the victim actually was in peril, but even if the rescuer only reasonably believed the victim was in danger. The court disagreed with plaintiff's interpretation. Plaintiff states on appeal that when [166 MICHAPP 24] decedent came out of the house, decedent thought, due to the fact that Shuell and Nixon were in plain clothes and had unmarked cars, that Alvin was being assaulted by two thugs. Therefore, it was reasonable for decedent to come to Alvin's defense with a gun.

The rescue doctrine, first adopted in Michigan in Brugh v. Bigelow, 310 Mich. 74, 16 N.W.2d 668 (1944), provided that where the plaintiff comes to the aid of another person who was put in danger by the defendant's negligence, the plaintiff could not be held contributorily negligent in an action by plaintiff against defendant for injuries suffered by the plaintiff in the rescue attempt. When contributory negligence was the prevailing rule, the rescue doctrine served a dual purpose: (1) it helped establish a causal connection between the defendant's negligence and the plaintiff's injury, and (2) it served to eliminate the absolute defense of contributory negligence. Sweetman v. State Highway Dep't, 137 Mich.App. 14, 26, 357 N.W.2d 783 (1984). The Michigan cases applying the doctrine have all involved factual situations where the victim was in actual peril. See Parks v. Starks, 342 Mich. 443, 70 N.W.2d 805 (1955); Brown v. Ross, 345 Mich. 54, 75 N.W.2d 68 (1956); Hughes v. Polk, 40 Mich.App. 634, 199 N.W.2d 224 (1972), lv. den. 388 Mich. 770 (1972). In Sweetman, supra, this Court's most recent decision involving the doctrine, we held that, in light of the replacement of contributory negligence with comparative negligence, ¹ the plaintiff's negligence in carrying out the rescue attempt will reduce his damages. Sweetman, supra, p. 26, 357 N.W.2d 783. In Sweetman, the plaintiff went to the aid of a person whose car had slipped on an icy highway and hit a guardrail. The plaintiff then [166 MICHAPP 25] stood farther up the road to warn oncoming motorists. An oncoming vehicle hit the plaintiff, and the plaintiff filed suit against the State Highway Department for negligent design of the road and improper maintenance. Sweetman, supra, pp. 19-20, 357 N.W.2d 783. The trial court found that while the plaintiff was not negligent in going to the victim's rescue, her subsequent act of assuming the function of a traffic director on an icy bridge after the victim was no longer in danger, instead of returning to the safety of her vehicle, was unreasonable. The court found the plaintiff seventy-five percent negligent and reduced her damages accordingly. Id., 27-28, 357 N.W.2d 783. The plaintiff appealed arguing that comparative negligence should not have applied because she was engaged in a rescue. Id., 25, 357 N.W.2d 783. We disagreed. We held that where a plaintiff suffers an injury during the scope of a rescue, the trier of fact must first inquire whether a reasonably prudent person would have acted as the plaintiff did under the same or similar circumstances. If it is found that the rescuer did not act reasonably in carrying out his mission, i.e., he was negligent, his damages should be reduced by his percentage of negligence. Id., 26-27, 357 N.W.2d 783. We also held that the trial court's definition of the scope of the plaintiff's rescue was unduly restrictive. We held that a plaintiff remains in the course of a rescue attempt where he or she acts under a reasonable belief that the endangered party's peril continues. Id., 28, 357 N.W.2d 783. Therefore, a plaintiff may receive the benefit of the rescue doctrine even after the victim is no longer in danger, if the plaintiff reasonably believed that the endangered party was still in peril. Id., 28, 357 N.W.2d 783. Thus, in Sweetman, we eliminated the requirement that the victim had to be in actual peril at the time of the plaintiff's rescue attempt.

Other states have held that the rescue doctrine [166 MICHAPP 26] is applicable where, although there was not actually someone in danger, the plaintiff reasonably believed someone to be in danger. The cases do not require that there be someone who was at one time actually in danger, as was the situation in Sweetman. See Eversole v. Wabash R. Co., 249 Mo. 523, 155 S.W. 419 (1913); Wolfinger v. Shaw, 138 Neb. 229, 292 N.W. 731 (1940); Wolff v. Light, 169 N.W.2d 93 (N.D., 1969); Arnold v. Northern State Power, 209 Minn. 551, 297 N.W. 182 (1941); French v. Chase, 48 Wash.2d 825, 297 P.2d 235 (1956). We believe that the rescue doctrine should protect not only those who come to the rescue of others in actual peril, but also those who reasonably believe that someone is in danger and take action to avert the danger. Public policy warrants that persons who risk danger to themselves to save others be rewarded, even if it turns out that no one was actually in danger. The emphasis should be on the reasonableness of the plaintiff's behavior. If the plaintiff reasonably believed another was in...