VanVorous v. Burmeister

• Decision Date: 01 September 2004
• Docket Number: Docket No. 248450.
• Citation: 262 Mich. App. 467,687 N.W.2d 132
• Parties: Darlene VANVOROUS, Personal Representative of the Estate of John VanVorous, Deceased, Plaintiff-Appellant, v. Eric BURMEISTER, Paul Anderson, and Daniel Bartell, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

687 N.W.2d 132

262 Mich. App. 467

Darlene VANVOROUS, Personal Representative of the Estate of John VanVorous, Deceased, Plaintiff-Appellant, v. Eric BURMEISTER, Paul Anderson, and Daniel Bartell, Defendants-Appellees.

Docket No. 248450.

Court of Appeals of Michigan.

Submitted May 19, 2004, at Marquette.

Decided June 15, 2004, at 9:25 a.m.

Released for Publication September 1, 2004.

Petrucelli & Petrucelli, P.C. (by Vincent R. Petrucelli and Jonny L. Waara), Iron River, for the plaintiff.

Plunkett & Cooney, P.C. (by Mary Massaron Ross and Camille T. Horne), Detroit, for Eric Burmeister.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Mark E. Donnelly, Assistant Attorney General, for Paul Anderson and Daniel Bartell. Before: WHITBECK, C.J., and RICHARD ALLEN GRIFFIN and BORRELLO, JJ.

BORRELLO, J.

Plaintiff Darlene VanVorous appeals by right orders dismissing her claims of assault and battery, gross negligence, and intentional infliction of emotional distress filed on behalf of her decedent, John VanVorous, after he was shot and killed by defendant police officers. In this case, we are asked to determine whether the doctrine of collateral estoppel precludes plaintiff's state law claims where her Fourth Amendment excessive force claim has been adjudicated in federal court. Plaintiff also asserts that summary disposition was premature because discovery was incomplete. Because we agree with the trial court that the determination of plaintiff's state law claims rests on an identical issue decided by the federal court, and because plaintiff produced no support for her contention that further facts would change the outcome, we affirm.

I. Factual and Procedural History

The facts of this case, which were competently set forth in detail by the United States District Court for the Western District of Michigan, VanVorous v. Burmeister, 2001 WL 1699200, *1-*3, 2001 U.S. Dist LEXIS 21759, *2-*10 (citations to the record omitted), aff'd 2004 WL 874803, 2004 U.S. App LEXIS 7920 (CA 6, 2004), are reprinted here for the reader's convenience:

At approximately 2 a.m. on September 7, 2000, [defendant Eric] Burmeister was dispatched, along with Sgt. Dennis Weaver ("Weaver") and officer Michael Pfankuch ("Pfankuch") of the Menominee police department, to a gas station to investigate a report of broken windows.1 Burmeister observed someone crossing the street from an alley nearby and attempted to follow the individual on foot. As he entered another alley a block away, he heard someone yell and a vehicle squeal its tires. Burmeister saw a red Blazer-type vehicle enter the alley and stop.2 He then heard a vehicle accelerate rapidly and saw smoke coming from behind a nearby building. Pfankuch also saw the red Blazer squeal its tires at this location and then drive around a corner and through a stop sign. The officers later determined that VanVorous was driving the vehicle.

Burmeister, Pfankuch, and Weaver, each driving a Menominee police cruiser, turned on their overhead lights and pursued the vehicle through the streets of Menominee, generally traveling north and west. VanVorous disregarded numerous stop signs along the way. At one point, VanVorous briefly stopped to let a passenger out of his vehicle. After the pursuit led the police out of the city limits, Weaver ordered Burmeister to break off and return to town. Burmeister initially began to return to town, but when he heard on radio traffic the direction of the pursuit, he positioned his vehicle at the intersection of No. 2 Road and Highway 577, a place the pursuit was likely to cross.3

As VanVorous was traveling south on Highway 577, Weaver was in the lead car followed by Pfankuch. State troopers [defendant Daniel] Bartell and [defendant Paul] Anderson overheard radio traffic about the pursuit and informed dispatch that they would attempt to place "stop sticks" at the intersection of Highway 577 and Sobieski Road. The VanVorous vehicle reached that intersection before the troopers could position the stop sticks. When VanVorous reached the intersection of Highway 577 and No. 2 Road, he passed behind Burmeister's vehicle as Burmeister pulled forward to avoid him. VanVorous turned west onto No. 2 Road, also known as River Road, and the troopers took the lead position in the pursuit, followed by Weaver and then Pfankuch. Burmeister['s] became the fourth vehicle in pursuit, about a quarter-mile behind them. During this time, the vehicles were traveling between 40-50 miles per hour.

While driving west on River Road, VanVorous slowed down and turned his vehicle south onto a grassy area near a residential driveway. The VanVorous vehicle made a loop and headed back toward the road. Bartell and Anderson followed him onto the grass in their vehicle, and Weaver followed them in his vehicle. Weaver tried to make a sharper turn and get in front of VanVorous to box him in. Pfankuch waited in the road when the vehicles entered the yard and then attempted to position his vehicle in front of the VanVorous vehicle as it turned around. VanVorous avoided both city police vehicles by slaloming between them.

Burmeister was driving his vehicle in the westbound lane of No.2 Road as he approached the scene. As the VanVorous vehicle weaved between the police cars and left the grassy area, Burmeister slowed his car to 5-10 miles per hour. VanVorous returned to the road, traveling east. Despite the eastbound lane being open and unabated, VanVorous accelerated and crashed into Burmeister's cruiser. The front of the vehicles collided driver's side to driver's side but not directly head on. Burmeister explained his reaction to the collision in an affidavit:

"Immediately after the collision, I recall my airbag being deployed in the police cruiser, as well as the sound of metal crunching and plastic breaking. I remember thinking to myself, `I can't believe I'm alive,' and was very concerned about my safety given the fact that the VanVorous vehicle was continuing to push my vehicle backwards. I distinctly remember the smell of burning rubber, as well as smoke. I was very concerned about my safety as I was unable to open my driver's side door. Ultimately, I was able to kick the door open and was able to roll out onto the pavement."

After the collision, the fronts of the two vehicles were locked or fused together. The VanVorous vehicle's engine continued to rev, causing the rear tires to burn rubber on the asphalt and produce large amounts of smoke. The fronts of the two vehicles were still engaged and the VanVorous vehicle continued to attempt to accelerate as Burmeister rolled from his vehicle onto the pavement. At this same time, troopers Bartell and Anderson exited their cruiser and approached the VanVorous vehicle on the passenger side. The vehicles were traveling at about 2-3 miles per hour as the VanVorous vehicle pushed Burmeister's cruiser backwards. Bartell attempted to smash the passenger side window with his flashlight and Anderson began hitting it with his collapsible baton. Neither Bartell nor Anderson had any difficulty keeping pace with the vehicle as it slowly moved toward the ditch.

When Burmeister rose to his feet, he was at the edge of his cruiser's front bumper. He testified that he saw VanVorous' hands moving the steering wheel to the right.4 When Bartell smashed the passenger's side window, VanVorous continued to face forward and did not look in his direction. Bartell did not see VanVorous steering the wheel in Burmeister's direction. Anderson saw Bartell and Burmeister yelling at VanVorous with their guns drawn, and he drew his weapon as well. All of the officers testified that they shot VanVorous because they believed Burmeister's life was in danger because the VanVorous vehicle's engine continued to rev and vehicles began to separate from one another. None of the officers involved in the shooting could remember who fired first. Although they could not specifically remember how many shots were fired, the reports showed that Burmeister shot 11 times, and Bartell and Anderson each shot four times.

After the shooting, the VanVorous vehicle continued to accelerate and slowly push Burmeister's cruiser backward. Burmeister lost consciousness and fell to the ground. When the shooting ceased, Pfankuch approached the VanVorous vehicle and smashed the driver's side window with his baton. He observed VanVorous sitting up with his head slumped to his chest. Pfankuch unfastened the seat belt and pulled VanVorous from the vehicle, and Pfankuch and Anderson performed CPR, including the use of a defibrillator. Weaver notified dispatch of the accident and subsequent shooting, and he requested fire and medical assistance. Shortly after the arrival of medical personnel, VanVorous was pronounced dead at the scene.

1 There is no allegation that VanVorous was involved in this activity. It was included in the report to explain why the officers were in the area when the vehicle chase began.

2 The vehicle turned out to be a GMC Jimmy.

3 Burmeister later testified that he was not attempting to set up a road block at that intersection but rather position his vehicle so he could rejoin the pursuit.

4 This information was not included in the statement he made to a reporting lieutenant two hours after the incident.

Plaintiff then brought suit against defendants and the city of Menominee, claiming that the officers violated her son's Fourth Amendment right to be free from excessive force and that the city authorized, or acquiesced to, the behavior.¹ Arguing that they were entitled to qualified immunity, the defendant officers moved for summary judgment under FRCP 56(c), which requires dismissal of a claim where "there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law."

The district court determined that, to resolve the question whether qualified immunity applied to defendants, it must engage in a two-step inquiry and...