Wilson v. Beebe

• Decision Date: 29 August 1984
• Docket Number: 82-1385,Nos. 82-1362,s. 82-1362
• Citation: 743 F.2d 342
• Parties: 16 Fed. R. Evid. Serv. 335 Larry T. WILSON, Plaintiff-Appellee, and Cross-Appellant, v. Thomas L. BEEBE, Defendant-Appellant, and Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 342

743 F.2d 342

16 Fed. R. Evid. Serv. 335

Larry T. WILSON, Plaintiff-Appellee, and Cross-Appellant, v. Thomas L. BEEBE, Defendant-Appellant, and Cross-Appellee.

Nos. 82-1362, 82-1385.

United States Court of Appeals Sixth Circuit.

Argued March 30, 1983.

Decided Aug. 29, 1984.

Frank J. Kelley, Atty. Gen. of Michigan, Louis J. Caruso, Sol. Gen., Thomas A. Kulick, Thomas L. Casey (Lead Counsel) (argued), Asst. Attys. Gen., Lansing, Mich., for defendant-appellant, and cross-appellee.

David R. Skinner (Lead Counsel) (argued), Richard B. Gustafson, Bay City, Mich., for plaintiff-appellee, and cross-appellant.

Before KEITH, MERRITT and JONES, Circuit Judges.

KEITH, Circuit Judge.

Plaintiff, Larry Wilson, and defendant, Thomas Beebe appeal the judgment of the district court in this action which was brought pursuant to 42 U.S.C. Sec. 1983 and a pendent state claim of negligence. The district court, based upon the findings and recommendations of a magistrate, dismissed Wilson's section 1983 action, but imposed liability upon defendant Beebe based upon the pendent state claim of negligence. Although the magistrate's negligence finding was upheld, his damage award was reduced by the district court. Wilson now appeals the dismissal of his section 1983 action and the reduction of damages. Beebe appeals the finding of negligence based upon the pendent state claim. For the reasons set forth below the decision of the district court is affirmed in part and reversed and remanded in part.

I.

This case has its genesis in a series of events that occurred on February 23, 1975. On that date, a breaking and entering occurred at the home of Frank Gronowski, who resided near Tawas, Michigan. Defendant, Thomas Beebe, a Michigan State Trooper, responded to a call to assist in the apprehension of the suspect. Beebe was given a description of a person seen in or near the Gronowski residence around the time of the burglary. He was also informed that guns and ammunition were taken from the scene of the crime.

Trooper Beebe, who was alone in his patrol car, followed another trooper along Monument Road in Tawas, Michigan. Shortly thereafter, he noticed a person fitting the suspect's description walking around the roadway. He immediately turned his patrol car around to pursue the suspect, but the person fled into a wooded area. Beebe then established a position on Driveway Road, which is a short, unpaved road located in the Huron National Forest.

Between 7:30 p.m. and 8:00 p.m., while still positioned on Driveway Road, Beebe spotted a person on the road approximately fifty to seventy-five yards away. He watched the figure, which he believed to be a man, approach the patrol car. Beebe gave an order to halt when the person was approximately fifty feet from the car. He focused the spotlight of the car on the person's face, and recognized that the person fit the description of the burglary suspect. Beebe ordered the person to stop and place his hands on his head. The suspect complied with Beebe's order, and Beebe attempted to radio other officers for assistance with a walkie-talkie. After radio contact was unsuccessful, Beebe ordered the suspect to approach the patrol car. As the suspect approached, Beebe again unsuccessfully attempted radio contact. When the suspect reached the car, Beebe ordered him to extend his hands on the hood of the car.

Beebe placed the shotgun and walkie-talkie he was carrying into the patrol car and removed a .38 caliber service revolver from his parka. He walked to the front of the patrol car and ordered the suspect to "spread eagle" on the roof of the vehicle. Beebe pulled back the hammer of the .38 and told the suspect the gun was cocked. He also asked the suspect if he heard the clicking of the hammer. After the suspect acknowledged that the gun was cocked, Beebe ordered him to lie down on the ground in front of the car in the beam of the spotlight. Beebe conducted a frisk and no weapons were found.

An attempt was made to handcuff the suspect, but the bulk of his coat prevented the left bracelet from locking. Beebe then stood behind the suspect and ordered him to stand. While attempting to handcuff the suspect a second time, Beebe's revolver accidentally discharged and struck the suspect in the back. Beebe called for assistance and another trooper responded. The suspect was identified as the plaintiff, Larry Wilson, who sustained injuries to the spine, intestines and gall bladder. As a result of these injuries Wilson has experienced atrophy of his calf muscles, severely decreased sensation of his genitals bordering on impotence, reduced control of his sphincter muscle, partial loss of sensation and mobility in his lower extremities, and urinary problems.

Wilson brought an action in federal district court against Beebe, his supervisors, the Michigan State Police Department, and the State of Michigan as a result of his injuries. The action was brought pursuant to 42 U.S.C. Sec. 1983 for an alleged violation of Wilson's civil rights pursuant to Michigan common law. Wilson's action was heard before a United States Magistrate who entered findings of fact and conclusions of law. The magistrate determined that Wilson's action could not be maintained under section 1983. ¹ However, he further ruled that Wilson was entitled to damages pursuant to Michigan negligence law. Consequently, the magistrate recommended that judgment be entered against the defendants in the amount of $3,513,970.

Timely objections to the magistrate's report were filed with the district court. The court subsequently entered a memorandum opinion and order which affirmed the dismissal of plaintiff's section 1983 action. The magistrate's recommended damage award was reduced by the district court to $2,569,638.

II.

Defendant Beebe argues that the district court erred in not finding him immune from tort liability pursuant to Mich.Stat.Ann Sec. 3.996(107) (Callaghan 1977) [M.C.L.A. Sec. 691.1407] which provides:

Governmental function; immunity from tort liability; immunity of state. Sec. 7. Except as in this act, otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the [government] agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretobefore, which immunity is affirmed.

Beebe asserts that this statute entitles him to immunity from tort liability. This argument is unpersuasive. The law in Michigan regarding governmental immunity is unsettled. The Michigan Court of Appeals is split on the analysis to be used in determining whether the governmental immunity statute, Mich.Stat.Ann. Sec. 3.996(107) [M.C.L.A. Sec. 691.1407], provides immunity to state employees from personal tort liability. On some occasions the Michigan Court of Appeals has held that a state employee is entitled to immunity whenever he is acting within the scope of his employment. See, e.g., Square D Environmental Corp. v. Aero Mechanical, Inc., et al., 119 Mich.App. 740, 326 N.W.2d 629 (1982); Fuhrmann v. Hattaway, 109 Mich.App. 429, 311 N.W.2d 379 (1981); Lewis v. Beecher School System, 118 Mich.App. 105, 324 N.W.2d 779 (1982); Gaston v. Becker, 111 Mich.App. 218, 314 N.W.2d 728 (1981). This interpretation of Mich.Stat.Ann. Sec. 3.996(107) [M.C.L.A. Sec. 691.1407] is based upon the Michigan Supreme Court decision, Lockaby v. Wayne County, 406 Mich. 65, 276 N.W.2d 1 (1979). The Michigan Court of Appeals has interpreted the plurality opinion of Lockaby as representing the proposition that Michigan has abolished common law governmental or sovereign immunity.

Other panels of the Michigan Court of Appeals have relied upon common law principles of sovereign immunity when determining whether a state employee is entitled to immunity pursuant to Mich.Stat.Ann. Sec. 3.996(107) [M.C.L.A. Sec. 691.1407]. Under the common law approach the courts employ a discretionary-ministerial test. If it is found that the alleged negligent act by a state employee is discretionary, a grant of immunity is given to the employee. A negligently performed ministerial task will not shield the state employee from personal tort liability, although the state agency which employs him will be given immunity. See, e.g., Vargo v. Svitchan, 100 Mich.App. 809, 301 N.W.2d 1 (1980); Cook v. Bennett, 94 Mich.App. 93, 288 N.W.2d 609 (1979). Discretionary tasks are those of a legislative, executive or judicial nature. Acts of a ministerial nature are those where the public employee has little decision making power during the course of performance and the conduct is delineated. Cook, 94 Mich.App. at 100, 288 N.W.2d at 612.

The facts of the instant case require a finding that the district court was correct in deciding that Beebe was not entitled to immunity despite these two markedly different interpretations of immunity by Michigan courts. The Michigan Supreme Court has never stated that the discretionary-ministerial test has been abolished in determining whether a state employee is entitled to immunity. Nor are we persuaded by Beebe's argument that the Michigan Supreme Court in Lockaby abrogated this approach by implication. As a panel of the Michigan Court of Appeals recently noted, "[e]stablished rules of law are not generally abandoned merely by implication." Layton v. Quinn, 120 Mich.App. 708, 120, 328 N.W.2d 95, 102 (1982). Consequently, there was no authority which precluded the district court from finding that Beebe was engaging in a ministerial act to which immunity would not attach. ²

III.

Beebe also argues that the district court erred by admitting into evidence a memorandum written by Captain MacGregor, who was Trooper Beebe's district commander. This memorandum detailed the events which led to the shooting of Larry Wilson. It also contained a statement by Captain...