MARY FACEN V JOHN AUGUSTYN
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
MARY FACEN, as Personal Representative of the
Estate of JAMES FACEN, Deceased,
UNPUBLISHED
December 18, 1998
Plaintiff-Appellant,
v
JOHN AUGUSTYN and CHARLES HARTHUN,
Individually and in their capacity as City of Detroit
Police Officers,
No. 200448
Wayne Circuit Court
LC No. 94-414320 NO
Defendants-Appellees.
Before: Wahls, P.J., and Holbrook, Jr., and Fitzgerald, JJ.
PER CURIAM.
Plaintiff, as personal representative of the estate of her son James Facen, deceased, appeals as
of right an order granting defendants’ motion for summary disposition. We reverse.
I. FACTS AND STANDARD OF REVIEW
A. Factual and Procedural History
On May 3, 1991, defendants, while acting in their capacity as uniformed Detroit police officers,
were dispatched to an apartment building located at 8868 Wyoming, Detroit. The police had received
reports of a fight at that address. After approximately ten minutes, the two officers left the apartment
building. Immediately thereafter, the two officers were again dispatched to the apartment, this time in
response to reports of shots being fired. During their second visit to the scene, defendants encountered
the decedent lying in the hallway of the apartment building. Plaintiff contends that her son, who had
been severely beaten, was obviously in need of medical attention. In her complaint, plaintiff alleged that
her son had visible contusions and bruises about his head, that his right eye and nose were severely
hemorrhaging and that his breathing was shallow and labored. Plaintiff further alleged that defendants
told several of the building’s occupants that they would send Emergency Medical Services to render the
necessary medical assistance for her injured son. According to plaintiff, the officers also told the
building’s occupants that they would be arrested if they called the police again. Conversely, defendants
-1
deny that they ever indicated in any way that they would summon medical assistance. Further,
defendants assert that they spoke with the decedent during their second visit, and that the decedent told
the officers that he was all right. The decedent died of his injuries on May 3, 1991.
In April 1994, plaintiff initiated this case of action by bringing suit against defendants, the City of
Detroit, and William Hart, in his capacity as Chief of Police for the City of Detroit. Plaintiff asserted
claims for gross negligence and deprivation of state constitutional rights. On October 20, 1991, the trial
court summarily dismissed the claims against the City of Detroit and William Hart. Next, the trial court
granted partial summary disposition to defendants’ on January 12, 1996, finding that defendants had no
duty to personally provide the decedent with medical care. Following the Michigan Supreme Court’s
decision in White v Beasly, 453 Mich 308; 552 NW2d 1 (1996), defendants filed a third motion for
summary disposition. Defendants argued that pursuant to the holding in White, plaintiff’s remaining
claims were barred by the public-duty doctrine. The trial court agreed, and on December 20, 1996, it
summarily dismissed all of plaintiff’s remaining claims. It is from this order that plaintiff now appeals.
Plaintiff does not challenge the grant of summary disposition with respect to the claim of deprivation of
state constitutional rights.
B. Standard of Review
Defendants’ third motion for summary disposition was made pursuant to MCR 2.116(C)(8) and
(C)(10). “A motion for summary disposition brought under MCR 2.116(C)(8) tests the legal
sufficiency of a claim by the pleadings alone. This Court reviews the trial court’s decision on a motion
brought under this rule de novo to determine if the claim is so clearly unenforceable as a matter of law
that no factual development could establish the claim and justify recovery.” Smith v Kowalski, 223
Mich App 610, 612-613; 567 NW2d 463 (1997) (citation omitted). “[F]or purposes of deciding if the
lower courts correctly ruled on the motion, we accept all well-pleaded facts in plaintiff’s complaint as
true.” White, supra at 313.1
II. PUBLIC-DUTY DOCTRINE
Plaintiff’s arguments all center around the public-duty doctrine, which provides
“[t]hat if the duty which the official authority imposes upon an officer is a duty to the
public, a failure to perform it, or an inadequate or erroneous performance, must be a
public, not an individual injury, and must be redressed, if at all, in some form of public
prosecution. On the other hand, if the duty is a duty to the individual, then neglect to
perform it, or to perform it properly, is an individual wrong, and may support an
individual action for damages.” [White, supra at 316, quoting 2 Cooley, Torts (4th ed),
§ 300, pp 385-386) (Brickley, C.J.).]
As “[a]pplied to police officers, the public-duty doctrine insulates officers from tort liability for the
negligent failure to provide police protection unless an individual satisfies the special-relationship
exception to the doctrine.” Gazette v Pontiac (On Remand), 221 Mich App 579, 582; 561 NW2d
879 (1997). The special-relationship test adopted in White was taken from Cuffy v City of New
-2
York, 69 NY2d 255; 513 NY2d 372; 505 NE2d 937 (NY App, 1987). The Cuffy test states that a
special-relationship exists between a police officer and a specific individual when there has been:
“(1) an assumption by the [police officer] . . . , through promises or actions, of
an affirmative duty to act on behalf of the party who was injured;
(2) knowledge on the part of the [police officer] . . . that inaction could lead to
harm;
(3) some form of direct contact between the [police officer] . . . and the injured
party; and
(4) that party’s justifiable reliance on the [police officer’s] . . . affirmative
undertaking.” [White, supra at 320, quoting Cuffy, supra at 260.]
A. Adoption of the Public-Duty Doctrine in Michigan
First, plaintiff argues that the trial court erred when granting defendants’ motion for summary
disposition because it erroneously relied on the public-duty doctrine. Plaintiff argues that a majority of
the Michigan Supreme Court has never held that the doctrine applies in Michigan. We disagree. A
close reading of all of the opinions in White reveals that the Court did indeed hold that the doctrine
applies in Michigan. White, supra at 316 (Brickley, C.J., joined by Riley and Weaver, JJ.), 325
(Boyle, J., concurring), 330 (Cavanagh, J., concurring in part and dissenting in part, joined by Mallett,
J.). See also Murdock v Higgins, 454 Mich 46, 48 n 1; 559 NW2d 639 (1997); Kowalski, supra at
613; Gazette, supra at 582. Accordingly, plaintiff’s first argument is without merit.
B. Applicability of the Public-Duty Doctrine to the Case at Hand
Plaintiff next argues that, even if the doctrine applies in Michigan, it does not apply to the facts
of this case. Plaintiff asserts that under Justice Brickley’s lead opinion in White, the public-duty doctrine
only applies to negligence claims involving police officers when those claims are based either on (1) an
alleged violation of a city ordinance or a state statute, or (2) the failure of the police to anticipate and
prevent criminal activity. Because her complaint does not allege either circumstance, plaintiff argues that
the public-duty doctrine is inapplicable.
We disagree that application of the public-duty doctrine is limited in the manner suggested by
plaintiff. The portions of Justice Brickley’s opinion cited by plaintiff are found in an examination of the
pubic policy justifications for the public-duty doctrine. This public policy exposition does not serve to
define the reaches of the doctrine, but rather to touch on the reasons for its existence. Thus, in context,
Justice Brickley’s observations concerning “shielding governmental units from liability ‘when its
employees act, or refuse to act, so as to conform to a municipal ordinance and/or state statute,’” White,
supra at 318 (quoting Sawicki v Village of Ottawa Hills, 37 Ohio St 3d 222, 226; 525 NE2d 468
[1998]), serves to illustrate his point that the public-duty doctrine “protects governments from
unreasonable interference with policy decisions.” Id. at 317. Further, his observation that “[p]olice
officers should not be liable ‘for failing to protect a member of the general public from a criminal act of
-3
which they were not aware but should have anticipated and prevented,’” id. at 318 (quoting De Long v
Erie Co, 60 NY2d 296, 304; 469 NY2d 611; 457 NE2d 717 [1983]), supports his earlier assertion
that the public-duty doctrine “protects government employees from unreasonable liability.” Id. at 317.
We also disagree with plaintiff’s assertion that because defendants’ alleged misconduct amounts
to misfeasance instead of nonfeasance, the public-duty doctrine does not apply. Plaintiff’s assertion is
based upon Justice Boyle’s White concurrence, in which she indicated that the special-relationship test
adopted by the lead opinion should be applied only in cases of nonfeasance. White, supra at 325-326.
Plaintiff’s argument is predicated on a misreading of the distinction between nonfeasance and
misfeasance as drawn by Justice Boyle in her White concurrence. “In theory the difference between
[misfeasance and nonfeasance] . . . is fairly clear; but in practice it is not always easy to draw the line
and say whether conduct is active or passive.” Prosser & Keeton, Torts (5th ed), § 56, p 374. Accord
White, supra at 330 (Boyle, J., concurring). According to Justice Boyle, a police officer’s promise to
perform some future act does not transform the failure to act on that promise into “active misfeasance.”
Instead, Justice Boyle opined that the failure to act on the promise amounts to nothing more than
“passive inaction,” or nonfeasance. White, supra at 329. According to Justice Boyle, the Cuffy “test,
by its own terms, can only be applied in an instance where the officer failed to carry out a promise or
an assumed duty to act.” Id. (emphasis added). These are the exact circumstances that plaintiff
alleged occurred in the case at hand. Accordingly, the Cuffy test applies.2
C. Applicability of the Special-Relationship Exception
The only element of the Cuffy test at issue is in the case at hand is the “reliance” element. As
the Cuffy Court observed,
the reliance element provides the essential causative link between the “special duty”
assumed by the municipality and the alleged injury. Indeed, at the heart of most of these
“special duty” cases is the unfairness that the courts have perceived in precluding
recovery when a municipality’s voluntary undertaking has lulled the injured party into a
false sense of security and has thereby induced him either to relax his own vigilance or
to forgo other available avenues of protection. [Cuffy, supra at 261.3]
Defendants argue on appeal that the reliance element of the test cannot be satisfied by a showing that
the bystanders in the apartment building and not the decedent had relied on defendants’ alleged promise
that they would summon emergency medical help. In support of this proposition, defendants cite to this
Court’s holding in Gazette.
The essential facts of Gazette are as follows. After the decedent did not return home from a
trip to a local car wash, members of her family called the police. The police told the decedent’s
daughter that after investigating the matter, they found no evidence that her mother’s disappearance was
do to any wrongdoing. However, the police had not actually pursued any of the avenues of investigation
that they said they had. Two days later, the decedent’s body was found in the trunk of a car pulled
over during a routine traffic stop. Gazette, supra at 581. The Gazette Court concluded that the
-4
plaintiff failed to allege facts sufficient to establish that the decedent had “justifiably relied on any
affirmative action taken by the police department. In fact, because [the decedent] . . . herself never
contacted the police, she had no knowledge of a promise on which she could rely.” Gazette, supra at
583.
We believe that the facts of Gazette distinguish it from the case at hand. First, unlike Gazette,
there is evidence in the case at hand that there was direct contact between the decedent and defendants.
Second, in the case at hand, plaintiff alleges that the police used the threat of arrest to effectively cut off
any further attempts to summon assistance. There is no indication of similar behavior by the police in
Gazette.
Also, we do not read Gazette as standing for the proposition that the direct contact and
reliance elements of the Cuffy test are inextricably linked. In Gazette, the Court observed that the lack
of direct contact between the victim and the police meant that the victim could not have relied upon any
promise made by the officer. Gazette, supra at 583. The Michigan Supreme Court made the same
point in White. White, supra at 325 (“Because decedent never directly contacted the police, she had
no knowledge of a promise on which she could rely.”). These observations recognize, and indeed are
predicated on the close relationship that exist between the direct contact and reliance elements of the
Cuffy test. Kircher v City of Jamestown, 74 NY2d 251, 257; 544 NY2d 995; 543 NE2d 443
(1989). However, the White and Gazette Courts’ comments about the link between the two elements
should not be read as establishing a per se rule that applies regardless of the evidence in a given case.
The White and Gazette Courts’ observations were made in the context of the particular circumstances
and evidence involved in each of those case. The situation in the case at hand is markedly dissimilar to
either Gazette and White. See De Long, supra at 306 (observing “that whether the municipality has
acted reasonably depends upon the circumstances of the particular case”).
In other words, the existence of such a relationship between the two elements does not mean
that the presence of direct contact between a police officer and a victim is either a necessary or
sufficient condition for the occurrence of reliance in all cases. While direct contact can increase the
likelihood that reliance will occur, it is by no means assured that reliance will result in all cases where
direct contact is made. Further, we cannot assume that simply because there is a demonstrable reliance
that there must have been direct contact. For example, the Cuffy Court concluded that while two of the
plaintiffs actually had not had any direct contact with the officer who promised that the family would be
protected by the police, “the ‘special duty’ undertaken by the City through its agent must be deemed to
have run to them. It was their safety that . . . all concerned had in mind” when the promise was made.
Cuffy, supra at 262. See also Sorichetti v City of New York, 65 NY2d 461, 471; 492 NY2d 591;
482 NE2d 70, 76-77 (1985) (holding that although a six-year old girl did not have direct contact with
the police, “a special relationship existed between the police [and the girls’ mother’s] . . . such that the
jury could properly consider whether the police conduct satisfied the duty of care owing to” the child).
Defendants also cite to Kircher, supra, in support of their position. In Kircher, the victim was
assaulted and abducted by a man who had approached her in a drug store parking lot. The events in
the parking lot were witnessed by two bystanders, who attempted to follow defendant as he drove
away from the scene with the victim. After loosing sight of the speeding car, the bystanders approached
-5
a police officer “who was giving assistance to the driver of a disabled municipal vehicle.” The officer
told the two that he would report the incident. The bystanders made no further effort to report the
incident to the police. Kircher, supra at 253-254. The Kircher Court concluded that the bystanders’
reliance on the officer’s assurance could not be transferred to the victim “for the obvious reason that
proof of their reliance does not satisfy the policy concern underlying the reliance requirement—providing
the ‘essential causative link’ between the municipality and the alleged injury. . . . Absent evidence of
reasonable detrimental reliance by the victim, the consequences of the municipality’s failure to act
become far too speculative to allow as the basis of liability.” Id. at 258-259. “It is readily apparent,”
the Kircher majority continued, “that [the reliance element] . . . is not satisfied on these facts since the
helpless and isolated plaintiff could not even communicate with the police, much less rely on any promise
of protection the police might have offered.” Id. at 258.
In addition to the fact that Kircher has no binding effect on this Court, we also find that Kircher
is distinguishable for the same reasons as Gazette: in Kircher there was no evidence of any direct
contact between the decedent and the police or of any coercive threat that effectively cut off other
avenues of assistance. We also disagree with the reasoning followed by the Kircher majority. As
previously noted, the White Court observed that “there are two basic justifications for retaining the
public duty doctrine. First, the doctrine protects governments from unreasonable interference with
policy decisions, and second, it protects government employees from unreasonable liability.” White,
supra at 317. In the case at hand, the police were twice dispatched to the scene. Accordingly,
because the decision to act had already been made, there was no unreasonable interference with policy
judgments concerning allocation of police resources. Further, we do not believe that the imposition of
liability under these circumstances would either dissuade the passage of state legislation or municipal
ordinances addressing the allocation of police resources, or somehow lead to a self-imposed police
proscription on responding to calls for assistance by the general public.
Additionally, the imposition of liability on these defendants would not undermine the goal of
protecting police officers from unreasonable liability. Accepting as true plaintiff’s allegation that the
decedent’s dire circumstances were evident, this is not a situation where defendants’ liability is
predicated on “a criminal act of which they were not aware but should have anticipated and prevented.”
De Long, supra at 304. If reliance can be established, we do not believe that the imposition of liability
in these circumstances could be characterized as unreasonable.
As for the issue of reliance, we believe that the causal link between the assumed duty to act and
the ultimate injury can be established by the apartment dwellers’ reliance on defendants’ assurance that
medical help would be summoned, coupled with defendants’ threat that further calls to the police would
result in arrest of those placing the calls can establish. See Kircher, supra at 260-271 (Hancock &
Bellacosa, JJ., dissenting in separate opinions). Arguably, defendants’ actions had advanced to the
point where they had gotten themselves “into such a relation with the” decedent, that they had “begun to
affect the interests of the plaintiff adversely, as distinguished from merely failing to confer a benefit upon
him.” Prosser & Keeton, Torts (5th ed), § 56, p 375.
-6
Therefore, because plaintiff has alleged facts sufficient to satisfy the Cuffy test, plaintiff has
stated a claim on which relief can be granted. Accordingly, the trial court erred when granting
defendants’ summary disposition motion.
Reversed and remanded. We do not retain jurisdiction.
/s/ Myron H. Wahls
/s/ Donald E. Holbrook, Jr.
/s/ E. Thomas Fitzgerald
1
The order granting defendants’ motion does not specify under which subrule the motion was granted.
We conclude that although factual issues are involved, the essence of defendants’ motion is that plaintiff
has failed to state a claim upon which relief can be granted. Therefore, we review the trial court’s grant
under MCR 2.116(C)(8). See, e.g., Smith, supra, 223 Mich App at 612 n 2.
2
Plaintiff also raises an argument based on Justice Cavanagh’s White opinion, in which the justice
proposed an alternative to the Cuffy test. White, supra, 453 Mich at 333-335. Because Justice
Cavanagh’s test was not adopted, we need not address plaintiff’s argument, which is predicated on that
test.
3
As the Court of Appeals of New York observed in De Long:
“If conduct has gone forward to such a stage that inaction would commonly result, not
negatively merely in withholding a benefit, but positively or actively in working an injury,
there exists a relation out of which arises a duty to go forward.” [De Long, supra at
305, quoting Judge Cardozo’s opinion in HR Moch Co v Rensseler Water Co, 247
NY 160, 167; 159 NE 896 (1928).]
See also 2 Restatement Torts, 2d, § 324, p 139.
-7
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.