Sudul v. City of Hamtramck, Docket No. 170609
| Decision Date | 11 February 1997 |
| Docket Number | Docket No. 170609 |
| Citation | 562 N.W.2d 478,221 Mich.App. 455 |
| Parties | Anthony SUDUL and Teresa Sudul, and Teresa Sudul as Next Friend for Robert Sudul, Bernard Sudul and Victoria Sudul, Plaintiffs-Appellees, v. CITY OF HAMTRAMCK, William Robinson and David Donnell, Defendants-Appellants, and Alex Shulhan, Peter C. Garon, Mark Kay, Mark Jaworski, and Derek Sulakoski, Defendants. |
| Court | Court of Appeal of Michigan — District of US |
Thomas E. Kuhn and Williams & Youngblood, P.C. by Amos E. Williams, Detroit, for plaintiffs-appellees.
Gault Davison, P.C. by Frederick L. Schmoll, III, and Michael J. Gildner, Flint, for defendants-appellants.
Before MURPHY, P.J., and CORRIGAN and P.D. HOUK *, JJ.
Defendants were not accorded a fair trial because the error regarding assault and battery by gross negligence pervaded the jury instructions and rendered the other special verdicts unsound. We reverse and remand for further proceedings consistent with this opinion.
We specifically agree with the discussion in the dissent/concurrence regarding the nonexistence of a tort called "assault and battery by gross negligence." We especially also hold that an individual employee's intentional torts are not shielded by our governmental immunity statute, a proposition that too frequently is mired in confusion. Nonetheless, we disagree with the position taken in the dissent/concurrence on two grounds.
We part company with the position taken in the dissent/concurrence with respect to the scope of the reversal. While we accept the utility of special verdicts in saving sound portions of a verdict, we nonetheless vacate all the special verdicts in this case because the flaws in the jury instructions regarding assault and battery by gross negligence tainted the entire verdict.
Justice Otis Smith observed in Sahr v. Bierd, 354 Mich. 353, 365, 92 N.W.2d 467 (1958), quoting Sunderland, Verdicts, General and Special, 29 Yale LJ 253, 259 (1920):
We cannot say that the special verdicts concerning excessive force, grossly negligent infliction of emotional distress, and the various derivative claims were unaffected by the instructional error. The instructional error was not harmless.
After being instructed incorrectly that defendants could be held responsible for assault and battery if they were grossly negligent, the jury retired to deliberate. Three hours later, the jurors posed several questions to the court. They first inquired whether excessive force constituted assault and battery. The court, with the agreement of counsel, replied that it did. The court's answer that excessive force was the same as assault and battery reinforced the original error that defendants could be liable for assault and battery by an act of gross negligence.
The court earlier had instructed the jury:
Gross negligence is defined in our state by statute, and it is defined as conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results. The same statute states--grants immunity from tort liability to police officers The court then gave the correct definitions of assault and battery as set forth in SJI2d 115.01 and 115.02. The court further instructed the jury that the City of Hamtramck
performing their duty, provided that the police officers' actions are not grossly negligent. This means that the officers are not liable to plaintiffs for assault, battery or excessive force unless you find that their actions were grossly negligent. [Emphasis added.]
may be liable where if you find that the plaintiffs have been subjected to excessive force in plaintiff's arrest and excessive force was done pursuant to a governmental custom, policy, or practice.
The court also merged the concepts of gross negligence and assault and battery in its instructions regarding compensatory and future damages:
If you decide that the plaintiffs, Anthony and Bernard Sudul, are entitled to damages, it is your duty to determine the amount of money which reasonably, fairly, and adequately compensate[s] each of them for the elements of damage which you decide has resulted from the assault, battery and excessive force by the defendants' grossly negligent conduct and/or from the violation of plaintiffs' federal constitutional rights by each police officer or the city, taking into the account the nature and extent of the injury.
* * * * * *
If you decide that the plaintiffs, Anthony and Bernard Sudul, are entitled to damages in the future, it is your duty to determine the amount of money which reasonably, fairly and adequately compensates each of them for each of the elements of damage in the future which you decide has resulted from the assault/battery and excessive force by the defendants' grossly negligent conduct and/or from the violation of plaintiffs' federal constitutional rights by each of the police officers or the city, taking into account the nature and extent of the injury. [Emphasis added.]
The verdict form asked specifically whether the officers assaulted plaintiff Anthony Sudul by an act of gross negligence or battered plaintiff Anthony Sudul by an act of gross negligence. As noted, defendants specifically objected on the very ground on which they have here prevailed--that the tort of assault and battery by gross negligence does not exist.
It is critical to us that this misinstructed jury nevertheless returned verdicts of no cause of action for three of the five individual defendant police officers involved in Anthony Sudul's arrest. The court apparently had earlier directed verdicts for two named individual defendants. The jury found only Officers David Donnell and William Robinson, who pushed Sudul to the ground to handcuff him after he resisted arrest, liable with respect to the claims of grossly negligent assault and battery and excessive force. Moreover, although Chief Alexander Shulhan was named personally as a defendant, the jury did not decide the question of his liability. The record does not account for the disposition of plaintiffs' claims against the police chief. The question of Chief Shulhan's personal liability was not before the jury. Only the City of Hamtramck's liability was before the jury.
We cannot conclude that the instructions as a whole, some correct and some incorrect, clearly apprised the jury of the governing law and protected defendants' rights. The court improperly defined assault and battery, then equated it with excessive force and gross negligence. Where a court gives conflicting instructions, one of which is erroneous, we generally presume that the jury followed the erroneous instruction. Kirby v. Larson, 400 Mich. 585, 606-607, 256 N.W.2d 400 (1977). Indeed, the jury's subsequent intelligent questions reflected its attempt to understand and follow the court's confusing instructions. The court's instructions permitted the jury to find liability without the requisite finding of intent for assault and battery, then merged an erroneous definition of assault and battery with the definition of excessive force in response to the jury's explicit question regarding the nature of those torts.
We disagree that the City of Hamtramck is liable under 42 U.S.C. § 1983 because its police chief displayed deliberate indifference as a matter of custom or policy by failing to investigate whether any police officers battered and used excessive force against plaintiff Anthony Sudul during his October 1991 arrest. In 42 U.S.C. § 1983 parlance, Chief Shulhan was a final municipal policymaker whose official conduct must be scrutinized to determine municipal liability. The police chief was not involved personally in the arrest or its aftermath. He never personally investigated plaintiffs' claims. In fact, he apparently did not even know about plaintiffs' claims of excessive force until they filed the instant lawsuit.
To affirm the verdict that the city, through Chief Shulhan, was deliberately indifferent, Judge Murphy concludes that Chief Shulhan failed to enforce policies regarding excessive force in two ways. First, he failed to enforce unspecified departmental policies to ensure that he had the necessary information to supervise and discipline the officers. Second, he failed to conduct a parallel investigation after...
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