Tope v. Howe

• Decision Date: 22 September 1989
• Docket Number: Docket No. 107866
• Citation: 445 N.W.2d 452,179 Mich.App. 91
• Parties: Dorothy TOPE and James Tope, Plaintiffs-Appellees, Cross-Appellants, v. Richard L. HOWE and Randy Kindy, jointly and severally, Defendants-Appellants, Cross-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 452

445 N.W.2d 452

179 Mich.App. 91

Dorothy TOPE and James Tope, Plaintiffs-Appellees, Cross-Appellants, v. Richard L. HOWE and Randy Kindy, jointly and severally Defendants-Appellants, Cross-Appellees.

Docket No. 107866.

Court of Appeals of Michigan.

Submitted June 20, 1989.

Decided Aug. 7, 1989.

Released for Publication Sept. 22, 1989.

Glassen, Rhead, McLean, Campbell & Bergamini by Jaye M. Bergamini, Lansing, for plaintiffs-appellees, cross-appellants.

Kaufman & Payton by Donald L. Payton and Jo Robin Davis, Farmington Hills, for defendants-appellants, cross-appellees.

Before WAHLS, P.J., and DOCTOROFF and BRENNAN, JJ.

DOCTOROFF, Judge.

In this case, we are called upon to interpret the provisions of the drunk driving statutes relating to arrest without a warrant, M.C.L. Sec. 257.625(1); M.S.A. Sec. 9.2325(1) and M.C.L. Sec. 764.15(1)(h); M.S.A. Sec. 28.874(1)(h). Defendants appeal by leave granted from a March 14, 1988, order denying their motion for summary disposition and granting plaintiffs' counter motion for summary disposition on plaintiffs' claims of false arrest and false imprisonment. Plaintiffs cross appeal the court's denial of their motions for summary disposition on their claims of assault and battery and intentional infliction of emotional distress. Both parties appeal the court's denial of summary disposition to either party on plaintiffs' claim of violations of the Fourteenth Amendment and 42 U.S.C. Sec. 1983. We affirm in part, reverse in part and remand for proceedings consistent with this opinion.

The record on appeal consists of the original papers filed in the lower court, the transcript of any testimony or other proceedings in the case appealed, and the exhibits introduced. MCR 7.210(A)(1). Our review of the record supports the following facts. On October 9, 1983, as he was preparing to have an early afternoon dinner, Daniel Fuhrman looked out the window of his Meridian Township home and saw a large brown car on the front lawn. As he started to run out the front door, the car backed onto the street and began moving toward the intersection. Fuhrman ran after the car and reached it at a stop sign. He knocked on the window and, as it was rolled down, began yelling at the woman who was driving. She repeatedly apologized and then drove away.

Fuhrman returned to his house and telephoned the Meridian Township police department. Although he had not detected the odor of alcohol, he felt the woman was under the influence of drugs or alcohol because her eyes were red and watery, her face was red, she seemed to be experiencing more distress than normal under the circumstances and because she had driven onto his lawn "on a bright autumn afternoon for no apparent reason."

Officer Richard L. Howe was dispatched to the Fuhrman home at approximately 4:00 p.m. Upon his arrival, he met Fuhrman outside the house. Fuhrman informed Howe that an intoxicated female driver had just driven over his lawn and that he had spoken with her. Howe noticed three ruts in the lawn. Fuhrman gave Howe the license number of the vehicle. However, he did not recall giving the officer a description of the woman.

Howe called the license number into the dispatch office and within two minutes received the identity and address of the vehicle's owner, plaintiff James Tope. Howe proceeded directly to the apartment complex identified as the owner's address and found the automobile in the parking lot. There was mud and dirt on the back wheel wells. Howe went to the plaintiffs' apartment and knocked on the door.

When a woman answered the door, Howe identified himself and was invited in. The woman's husband was also present in the apartment. Howe stated he was investigating an accident that had just occurred and requested the woman's driver's license. The woman refused to produce her driver's license. Howe asked her to identify herself and again she refused. Howe told the woman that she was a suspect in the accident and, under the law, was required to identify herself and to produce a driver's license, vehicle registration and certificate of insurance. The woman still refused. She and her husband asked Howe if he had a search warrant. Howe replied that, because he was invited into the apartment, a search warrant was not necessary. He explained this was an ongoing investigation to identify the driver and that he was not searching for anything. Howe then told the woman he could arrest her for drunk driving and that he had a witness who could identify her.

Howe could not persuade the woman to cooperate, so he called for backup. Officer Randy Kindy arrived shortly thereafter. Kindy was also unsuccessful in persuading the woman to cooperate. Thus, she was placed under arrest for driving under the influence of alcohol. As Howe started to handcuff the woman, she began to resist and slumped to the floor, screaming. The woman's husband started to come to her assistance, but Kindy told him to stay back and stay out of it. The man complied. The officers grabbed the woman's arms and, as she continued to struggle, they wrestled with her a bit, handcuffed her and raised her to her feet. She was placed in the police car and taken back to Fuhrman's house where he positively identified her as the driver of the vehicle and the person with whom he spoke at the stop sign. The woman was then taken to the police station for a Breathalyzer test. After they arrived at the police station, Howe obtained a positive identification that the woman was plaintiff, Dorothy Tope.

Howe testified that when he went to plaintiffs' apartment, he did not have a physical description or the name of the woman driver. However, he believed he had approached the right person because not only was the vehicle registered and parked at that address, but the woman's refusal to cooperate, her belligerent behavior, bloodshot eyes and appearance and the strong odor of alcohol on her person convinced him that he was talking with the person who had driven the vehicle at the time of the accident and that she was highly intoxicated and would have been unable to control a vehicle. Howe testified that the time between the call to the police station and his arrival at plaintiffs' apartment was approximately ten to fifteen minutes.

Dorothy Tope was charged with driving while under the influence of intoxicating liquor, M.C.L. Sec. 257.625; M.S.A. Sec. 9.2325. The charge was dismissed prior to trial.

Plaintiffs then filed their complaint alleging false arrest, false imprisonment, assault and battery, intentional infliction of emotional distress and violations of the Fourteenth Amendment and 42 U.S.C. Sec. 1983.

Defendants filed a motion for summary disposition pursuant to MCR 2.116(C)(7) and (10), alleging that, because the arrest of Dorothy Tope was lawful, plaintiffs' allegations were invalid as a matter of law. In their answer to defendants' motion, plaintiffs contended that the arrest was unlawful, defendants' motion should be denied and plaintiffs should be granted summary disposition. Following a hearing, the court found there was no basis for an arrest without a warrant for the misdemeanor of operating a motor vehicle under the influence of liquor or a controlled substance because the events of October 9, 1983, did not constitute an "accident" within the meaning of M.C.L. Sec. 257.625(1); M.S.A. Sec. 9.2325(1) and M.C.L. Sec. 764.15(1)(h); M.S.A. Sec. 28.874(1)(h). The court denied defendants' motion for summary disposition on the counts of false arrest and false imprisonment and granted summary disposition to plaintiffs on these counts. The court denied summary disposition to both parties on assault and battery and violations of the Fourteenth Amendment and 42 U.S.C. Sec. 1983 claim based upon its finding that questions of fact remained for the trier of fact. Determining that the standard of outrageous and extreme conduct required to sustain a claim for intentional infliction of emotional distress was not met by plaintiffs' allegations, the court granted defendants' motion for summary disposition on that count.

A motion for summary disposition under MCR 2.116(C)(10) tests whether there is factual support for a claim. When passing on such a motion, the court must consider the pleadings, affidavits, depositions, admissions and other documentary evidence available to it. The party opposing summary disposition has the burden of showing that a genuine issue of disputed fact exists. Giving the benefit of reasonable doubt to the nonmoving party, the court must determine whether the kind of record which might be developed will leave open an issue upon which reasonable minds might differ. The appellate court is liberal in finding a genuine issue of material fact. Dumas v. Auto Club Ins. Ass'n, 168 Mich.App. 619, 626, 425 N.W.2d 480 (1988).

In order to resolve defendants' claims on appeal and plaintiffs' claims on cross appeal, we must first determine whether the events of October 9, 1983, constituted an "accident" within the meaning of M.C.L. Sec. 257.625(1); M.S.A. Sec. 9.2325(1) and M.C.L. Sec. 764.15(1)(h); M.S.A. Sec. 28.874(1)(h). These two statutes provide for an arrest without a warrant on the misdemeanor charge of driving under the influence of intoxicating liquor "when the peace officer has reasonable cause to believe that the person was, at the time of an accident, the driver of a vehicle involved in the accident and was operating the vehicle upon a public highway or other place open to the general public." (Emphasis added.)

There is no Michigan case which defines an accident in connection with these two statutes. However, applying the definition of an accident as found in Michigan decisions relating to insurance issues and decisions from other states involving statutes virtually identical to the Michigan statutes quoted above leads us to the conclusion that the occurrence at the Fuhrman home was an accident within the meaning of the Michigan statute...