Thornton v. City of Flint

• Decision Date: 22 March 1972
• Docket Number: Docket No. 10775,No. 2,2
• Citation: 197 N.W.2d 485,39 Mich.App. 260
• Parties: Robert Lee THORNTON, Plaintiff-Appellee, v. CITY OF FLINT, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 485

197 N.W.2d 485

39 Mich.App. 260

Robert Lee THORNTON, Plaintiff-Appellee, v. CITY OF FLINT, Defendant-Appellant.

Docket No. 10775.

Court of Appeals of Michigan, Division No. 2.

March 22, 1972.

Released for Publication May 25, 1972.

Edward H. Devoe, Flint, for defendant-appellant.

Max Dean, Leitson, Dean, Dean, Segar & Hart, Flint, for plaintiff-appellee.

Before LESINSKI, C.J., and McGREGOR and QUINN, JJ.

LESINSKI, Chief Judge.

Plaintiff Robert Lee Thornton brought this action for damages against defendant Flint, a municipal corporation, for its negligence in failing to take proper precautions to insure his safety when he was incarcerated in defendant's jail during July, 1968. Both before and during plaintiff's jailing, defendant had allegedly been given notice that plaintiff was a chronic alcoholic with a past history of suffering from delirium tremens. Plaintiff was awarded a judgment of $20,000 by a jury, and defendant appeals as of right from that judgment.

Plaintiff was arrested for breach of peace by police officers employed by defendant Flint on July 9, 1968, after he had exploded a homemade cannon at his mother's home. Plaintiff had been drinking at the time of his arrest.

Plaintiff's mother testified at trial that she informed the arresting officers that plaintiff should be in a hospital, not in a jail, and that he was an alcoholic. The arresting officers for defendant Flint, Ronald J. Samek and Michael D. Thomas, did not recall being told plaintiff was an alcoholic, although Officer Samek did remember plaintiff's daughter not wanting her father to go to jail. According to both officers, plaintiff did not appear to be intoxicated at the time of his arrest. Plaintiff's daughter, aged 13 when the incident occurred, stated that her grandmother had told the arresting officers that plaintiff was sick, had been drinking, and might go into delirium tremens.

After plaintiff had been arrested and conveyed to jail, his mother called her niece, Carol Branam, and requested her to go to jail in order to inform 'them' of his condition. Carol Branam, accompanied by her daughter Clara Branam, went to both the courthouse and jail on July 10, 1968. They ascertained that plaintiff had already pled not guilty to the charge and a bond had been set. Carol Branam visited plaintiff at the jail, told him that she had been unsuccessful in attempting to raise the funds for bond, and advised him to change his plea to guilty.

She then went to the judicial chambers of Judge Showley, a Flint municipal judge, in an attempt to discover how much plaintiff would be fined if he pled guilty. She testified that she there talked to a Flint police officer, Gaylord Stevens, who was attired in a Flint police officer's uniform and was then serving as a court officer. She said that she told Officer Stevens that plaintiff could not live through the delirium tremens again. According to her testimony, Officer Stevens told her that if prisoners began suffering from delirium tremens, they were taken to Hurley Hospital. She stated that Judge Showley was also present during part of this conversation. Officer Stevens remembered that there had been a discussion between himself, Judge Showley and a young woman concerning the fact that her husband or her brother 'drank quite a bit,' it being determined that 'the best thing to do was to leave him in jail.' Judge Showley, whose testimony was presented by deposition, said that he had 'no independent recollection' of the discussion, but that 'it could well have taken place.'

Later in the day of July 10, Carol Branam called a friend on the Flint police force, Melvin Scott, who was serving as turnkey at the Flint jail at the time. She inquired of Officer Scott as to the care that was taken of alcoholics at the jail, and informed him that plaintiff was in the jail, was an alcoholic, and 'was going into the tremens.' Scott testified that he could not recall either Carol Branam's visit to the jail earlier on that day or the phone call.

Plaintiff, in fact, pled guilty to the charge of disturbing the peace and was fined $35 on that same day, July 10, and assessed $3.50 costs, or, in lieu of payment, was sentenced to 20 days in jail. Plaintiff was assigned to dormitory four, the trustee's cell, which cannot be directly observed by police personnel in the booking office.

Shortly after midnight on July 13, plaintiff jumped from the top bunk of dormitory four to the floor, fracturing his neck. According to his testimony, he had imagined hearing voices and whispering between the walls, and he believed the other prisoners were going to attack him. He was taken immediately to Hurley Hospital after being injured. In addition to receiving treatment for his fractured neck, plaintiff was also given medication for delirium tremens. He continued to suffer the symptoms of delirium tremens for ten days after his admittance to the hospital.

Of the other police officers who testified at trial, all of whom had worked during the period of plaintiff's incarceration, Claude G. Shinn, William J. Hamilton, Jr., and James Foster testified they could not remember plaintiff. Two of the policemen on duty at the time plaintiff was injured, John Port and Edward Price, stated that they had not been given any information relative to plaintiff's alcoholism and prior history of experiencing delirium tremens.

On appeal, defendant initially urges that the trial court committed error in not ruling affirmatively on its motion that plaintiff was contributorily negligent as a matter of law at the close of plaintiff's proofs. As this Court stated in Dobbek v. Herman Gundlach, Inc., 13 Mich.App. 549, 554, 164 N.W.2d 685, 688 (1968):

'Contributory negligence is usually a matter for jury determination and should be determined by the trial judge only when there could be no reasonable difference of opinion on the proximate cause of an event.'

On the facts of this case, the question of whether plaintiff was contributorily negligent was properly left to the jury by the trial court.

Defendant also alleges error resulting from the trial court's denial of its motion, made at the close of plaintiff's proofs, that any negligence on the part of defendant was cut off by the intervening cause of plaintiff's intentional act of diving from his bunk. This argument is properly viewed as one relating to the proximate cause of the injury suffered by plaintiff. The issue of causation, in a case where reasonable minds could differ as to whether defendant's negligence caused plaintiff's injury, is properly a matter left to the jury. Comstock v. General Motors Corp., 358 Mich. 163, 180, 99 N.W.2d 627 (1959). See, also, Davis v. Thornton, 384 Mich. 138, 180 N.W.2d 11 (1970).

In response to defendant's argument on this point, plaintiff cites Paulen v. Shinnick, 291 Mich. 288, 289 N.W. 162 (1939). In Paulen, a mental patient intentionally leaped from the third floor window of a private mental hospital, after she had distracted the attendant nurse who had failed, upon opening the window, to lock the protective screen. The patient and her husband brought an action against defendant operator of the hospital for the injuries which were incurred in the fall. In affirming a jury verdict for plaintiffs, the Michigan Supreme Court stated:

'A patient in a private hospital is clearly entitled to reasonable care and attention from the authorities and employees, and the nature of such care will depend upon the attendant circumstances of each individual case, including the known physical and mental condition of the patient.' Paulen, supra, 290--291, 289 N.W. 163.

Even though the patient's act could be characterized as intentional, plaintiffs were still allowed to recover, a jury question having been presented by the facts.

Likewise in the present case, plaintiff's act of diving from the bunk in his jail cell, although 'intentional,' may not have been one of free volition, given the evidence as to plaintiff's medical history, and the issue was properly left to the jury.

Defendant's third claimed error on appeal concerns the trial court's failure to instruct the jury, as requested by defendant, that intervening independent acts of third persons, not reasonably foreseeable by defendant, which proximately caused plaintiff's injury, would cut off defendant's negligence. Defendant, however, points to no independent acts on the part of third parties which proximately caused plaintiff's injury, and our search of the record reveals none. Thus, the trial court correctly refused to give defendant's proposed instruction on this point.

Defendant further argues that the trial court erred in failing to give defendant's requested instruction on avoidable consequences. The doctrine of 'avoidable consequences' was discussed by the Michigan Supreme Court in Socony Vacuum Oil Co. v. Marvin, 313 Mich. 528, 544, 21 N.W.2d 841, 847, (1946):

The issue presented is not one of contributory negligence but rather, as claimed by counsel for plaintiff, of minimizing damages following the occurrence out of which the cause of action arises. This is sometimes referred to as the duty to prevent 'avoidable consequences.'

'In 25 C.J.S. Damages § 32, p. 499, it is said:

"The rule of avoidable consequences is to be distinguished from contributory negligence in that contributory negligence is a bar to the action while the rule of avoidable consequences merely goes to the reduction of damages caused by defendant."

In the Socony Vacuum Oil Co. case, there was an issue as to whether plaintiff's damages were aggravated by the failure of plaintiff's employee to turn off the ignition of the gasoline truck he was driving, following a collision with defendant's automobile. After plaintiff's driver left the truck, it burst into flames, the equipment and load being destroyed.

Unlike the Socony case, Supra, the present facts do not merit an instruction on avoidable consequences. Defendant has not...