Zavala v. Zinser

• Decision Date: 06 May 1983
• Docket Number: Docket No. 59195
• Citation: 123 Mich.App. 352,333 N.W.2d 278
• Parties: Jose Baudelio ZAVALA and Maria Zavala, Plaintiffs-Appellants, v. Sergeant Andrea ZINSER, Officer Freida Y. Harris and the City of Detroit, a municipal corporation, jointly and severally, Defendants-Appellees, and Linda Guerra, a/k/a Linda Guerrera, Victor Guerra, a/k/a Victor Guerrera, Daniel Rosales, David Hernandez, Rosemary Pinia, Socorra Guitterez, Mary Roe, and Ralph Ladesma, individually, and d/b/a El Taurino's Bar, and Linda Fitchett, jointly and severally, Defendants. 123 Mich.App. 352, 333 N.W.2d 278
• Court: Court of Appeal of Michigan — District of US

Page 278

333 N.W.2d 278

Jose Baudelio ZAVALA and Maria Zavala Plaintiffs-Appellants, v. Sergeant Andrea ZINSER, Officer Freida Y. Harris and the City of Detroit, a municipal corporation, jointly and severally, Defendants-Appellees and Linda Guerra, a/k/a Linda Guerrera, Victor Guerra, a/k/a Victor Guerrera, Daniel Rosales, David Hernandez, Rosemary Pinia, Socorra Guitterez, Mary Roe, and Ralph Ladesma individually, and d/b/a El Taurino's Bar, and Linda Fitchett, jointly and severally, Defendants.

Docket No. 59195.

123 Mich.App. 352, 333 N.W.2d 278

Court of Appeals of Michigan.

Submitted Nov. 10, 1982.

Decided Feb. 23, 1983.

Released for Publication May 6, 1983.

[123 MICHAPP 354] Howard Schwartz, Birmingham, and Gagleard, Munro, Addis, Imbrunone & Gagleard by Michael A. Gagleard, Troy, of counsel, for plaintiffs-appellants.

Before RILEY, P.J., and KAUFMAN and WALSH, JJ.

WALSH, Judge.

Plaintiffs, Jose Baudelio Zavala and his wife Maria Zavala, appeal from the circuit court's entry of summary judgment in favor of defendants Sergeant Andrea Zinser, Officer Freida Y. Harris, and the City of Detroit. GCR 1963, 117.2(1). ¹

This controversy arose out of the shooting of [123 MICHAPP 355] plaintiff Jose Zavala outside a Detroit bar in the early morning hours of November 2, 1975. As Mr. Zavala left the bar that morning, he encountered a large group of people in front of the building; some of the people, including Mr. Zavala's brother, were fighting. After shouting at his brother to stop fighting, Mr. Zavala was shot and seriously injured by one of the participants in the fight. At the time of the incident, defendants Zinser and Harris, City of Detroit police officers, were sitting nearby in their marked police vehicle.

Plaintiffs sued several of the participants in the fight. ² They were later granted permission to amend their complaint to add defendants Zinser, Harris and the City of Detroit. They alleged that defendants Zinser and Harris had been negligent in failing to stop the fight, in failing to stop Mr. Zavala's assailant from shooting him, and in generally failing to uphold or enforce the law. They alleged a "special relationship" between Mr. Zavala and defendant police officers giving rise to a duty of due care toward him. Plaintiffs' further alleged the vicarious liability of defendant City of Detroit for the negligent conduct of its employees.

Defendants Zinser, Harris and the City of Detroit moved for summary judgment under GCR 1963, 117.2(1). The court ruled that plaintiffs' claims against defendant city were barred by governmental immunity, and that any duties owed by defendant police officers in this case had been owed to the public generally and not to Mr. Zavala individually. The motion for summary judgment was, therefore, granted.

On appeal, plaintiffs challenge the court's determination that defendant police officers did not owe [123 MICHAPP 356] a "private" duty to Mr. Zavala. After careful examination of the pleadings and studied consideration of plaintiffs' arguments, however, we are persuaded that the court's ruling was correct.

In essence, plaintiffs alleged no more than that defendant police officers had breached their duty to preserve the peace. It is well settled that the duty of a law enforcement officer to preserve the peace is one which is owed to the public generally and not to particular individuals; for breach of that duty an officer is not liable to any particular individual but only to the public. South v. Maryland, 59 U.S. (18 How.) 396, 15 L.Ed. 433 (1855); Annala v. McLeod, 122 Mont. 498, 206 P.2d 811 (1949); Commercial Union Ins. Co. of New York v. Wichita, 217 Kan. 44, 536 P.2d 54 (1975); Trautman v. Stamford, 32 Conn.Sup. 258, 350 A.2d 782 (1975); 70 Am.Jur.2d, Sheriffs, Police, and Constables, Sec. 54, p. 170; Anno: Personal Liability of Policeman, Sheriff, or Similar Peace Officer or His Bond, for Injury Suffered as a Result of Failure to Enforce Law or Arrest Lawbreaker, 41 A.L.R.3d 700. See generally, 2 Cooley on Torts (4th ed.), Sec. 295 et seq.; Massengill v. Yuma County, 104 Ariz. 518, 456 P.2d 376 (1969); Doe v. Hendricks, 92 N.M. 499, 590 P.2d 647 (1979); Shore v. Stonington, 187 Conn. 147, 444 A.2d 1379 (1982).

The determination of whether a duty was owed by a defendant to an individual plaintiff is a question of law for the court to decide. Moning v. Alfono, 400 Mich. 425, 254 N.W.2d 759 (1977), reh. den. 401 Mich. 951 (1977); Doe v. Hendricks, supra. In this case, no facts were pleaded which showed a duty owed to these plaintiffs. Since an essential element of actionable negligence was missing, therefore, the court properly granted summary judgment for defendant police officers.

[123 MICHAPP 357] Summary judgment was also properly entered for defendant City of Detroit. The operation of a police department is a governmental function. M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107), Fiser v. Ann Arbor, 107 Mich.App. 367, 309 N.W.2d 552 (1981), lv. gtd. on other grounds, 412 Mich. 915 (1982); Walkowski v. Macomb County Sheriff, 64 Mich.App. 460, 236 N.W.2d 516 (1975). The trial court also correctly found that there had been no allegation of intentional tortious conduct. Compare, Lockaby v. Wayne County, 406 Mich. 65, 276 N.W.2d 1 (1979), McCann v. Michigan, 398 Mich. 65, 247 N.W.2d 521 (1976).

Plaintiffs also argue on appeal that the court abused its discretion in denying their request to amend their complaint to allege defendants' violation of 42 U.S.C. Sec. 1983. The record does not disclose the findings underlying the court's discretionary ruling; appellate review is impossible in this case without such findings. See LaBar v. Cooper, 376 Mich. 401, 137 N.W.2d 136 (1965); Ben P. Fyke & Sons v. Gunter Co., 390 Mich. 649, 213 N.W.2d 134 (1973). Accordingly, we remand to the circuit court for supplementation of the record. The court shall make the necessary findings and shall return the supplemented record to this Court within 30 days of the effective date of this opinion.

Affirmed in part and remanded for further proceedings consistent with this opinion. We retain jurisdiction.

RILEY, P.J., concurred.

KAUFMAN, Judge (dissenting).

I believe summary judgment was improper on the issue of the police officers' liability. A police officer is generally immune when performing discretionary acts. The plaintiffs alleged that the officers here sat back [123 MICHAPP 358] and watched an altercation, preferring not to "intervene" until after Mr. Zavala was shot. The question becomes whether police officers have the discretion to sit back while an assault of this nature occurs. I believe there is a ministerial duty to perform some minimum acts to preserve the peace. The Detroit City Charter creates such a duty:

"The police department shall preserve the public peace, prevent crime, arrest offenders, protect the rights of persons and property, guard the public health, preserve order, and enforce the laws of the State and the Nation and the ordinances of the City." Detroit Charter, Ch 11, Section 7-1101.

Statutes of this state create a duty:

"It shall be the duty of the police and nightwatchmen and officers of the force under the direction of the mayor and chief of police, and in conformity with the ordinances of the city, and laws of the state, to suppress all riots, disturbances and breaches of the peace and to pursue and arrest any person fleeing from justice in any part of the state; to apprehend any and all persons in the act of committing any offense against the laws of the state, or the ordinances of the city, involving a breach of the peace, and to take the offender forthwith before the proper court or magistrate, to be dealt with for the offense; to make complaints to the proper officers and magistrates of any person known or believed by them to be guilty of the violation of the ordinances of the city, or the penal laws of the state; and at all times diligently and faithfully to enforce all such laws, ordinances and regulations for the preservation of good order and the public welfare as the council may ordain; and to serve all process directed or delivered to them for service, and for such purposes the chief of police, and every policeman and nightwatchman, shall have all the powers of constables, and may arrest upon view and without process, any person in the act of violating any [123 MICHAPP 359] ordinance of the city involving a breach of the peace, or of committing any crime against...