WILFRED S PINNACE V MERLIN K TAYLOR
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STATE OF MICHIGAN
COURT OF APPEALS
WILFRED S. PINNACE,
UNPUBLISHED
November 27, 2001
Plaintiff-Appellant,
v
No. 225769
Washtenaw Circuit Court
LC No. 98-004894-NO
MERLIN K. TAYLOR and CITY OF
YPSILANTI,
Defendants-Appellees.
Before: Whitbeck, P.J., and Neff and Hoekstra, JJ.
PER CURIAM.
Plaintiff Wilfred Pinnace appeals as of right from the circuit court order granting
summary disposition to defendants Merlin Taylor and the City of Ypsilanti under MCR
2.116(C)(10) because they were immune from suit. We decide this appeal without oral argument
pursuant to MCR 7.214(E). We affirm.
I. Basic Facts And Procedural History
On June 25, 1997, Ypsilanti police officer Antonio Allen was in pursuit of a suspect who
was fleeing the scene of an accident when he contacted the police dispatcher to report the
suspect’s description. Officer Allen described the suspect as a black male, around six feet tall,
wearing a white or dirty white shirt, and white or khaki shorts. Whether Officer Allen described
the suspect’s weight to the dispatcher is not clear. If he did, Officer Allen indicated that the
suspect weighed between 180 and 190 pounds. Relying on the license plate of the car in which
the suspect was riding, Officer Allen surmised that the suspect was heading to his residence on
East Ainsworth.
Taylor, an Ypsilanti police officer, responded to a radio dispatch describing the suspect
Officer Allen was pursuing. He was dispatched to the Ainsworth address. When Officer Taylor
arrived at the Ainsworth address, Pinnace answered the door. According to Officer Taylor,
Pinnace closely matched the description given in the dispatch. Pinnace was a black male,
medium build but slimmer, and wearing dusty shorts and a white shirt. As a result, Officer
Taylor asked Pinnace to step outside the house. Pinnace was very cooperative and complied with
the request. Officer Taylor informed Pinnace that he matched the description of a suspect and
detained him until Officer Allen arrived and confirmed that Pinnace was not the suspect. Officer
Taylor released Pinnace and apologized for the mistake.
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Pinnace sued, claiming that he was arrested wrongfully, Officer Taylor acted in a grossly
negligent manner, and the City of Ypsilanti was negligent. The factual basis for the claim against
both defendants was that Officer Taylor lacked probable cause to arrest or detain him because he
did not physically resemble the suspect in several respects: Pinnace weighed fifty to sixty
pounds less than the suspect, and he was wearing a white t-shirt with a printed design and white
shorts. Defendants moved for summary disposition arguing that governmental immunity barred
the suit. The trial court agreed, holding that no genuine issue of material fact existed concerning
whether Officer Taylor’s conduct amounted to gross negligence, the degree of negligence
necessary to avoid governmental immunity.
II. Standard of Review
Review do novo is appropriate for a motion granting summary disposition.1
III. Legal Standards
The trial court granted defendants’ motion for summary disposition pursuant to MCR
2.116(C)(10) even though (C)(7) is the appropriate subrule under which to grant summary
disposition because of governmental immunity. This Court, however, may analyze the trial
court’s decision under the correct subrule.2 Fortunately, the analysis for both subrules is
substantively the same. As with motions for summary disposition under subsection (C)(10),3 the
fundamental question in ruling on a motion for summary disposition under subsection (C)(7) is
whether the movant “is entitled to judgment as a matter of law.”4 To answer this question, the
deciding court must consider “[t]he affidavits, together with the pleadings, depositions,
admissions, and documentary evidence then filed in the action or submitted by the parties[.]”5
IV. Governmental Immunity
Governmental immunity protects police officers from tort liability unless they acted in a
grossly negligent manner.6 “[G]ross negligence” means “conduct so reckless as to demonstrate a
substantial lack of concern for whether an injury results.”7 In Ross v Consumers Power Co,8 the
Michigan Supreme Court sketched the boundaries of governmental immunity as it applies to
police officers:
1
Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).
2
Shirilla v Detroit, 208 Mich App 434, 437; 528 NW2d 763 (1995).
3
Waldan General Contractors, Inc v Mich Mutual Ins Co, 227 Mich App 683, 685; 577 NW2d
139 (1998).
4
O’Connell v Kellogg Community College, 244 Mich App 723, 724; 625 NW2d 126 (2001).
5
MCR 2.116(G)(5).
6
See MCL 691.1407(2).
7
MCL 691.1407(2)(c).
8
Ross v Consumers Power Co, 420 Mich 567, 659-660; 363 NW2d 641 (1984).
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Police officers, especially when faced with a potentially dangerous
situation, must be given a wide degree of discretion in determining what type of
action will best ensure the safety of the individuals involved and the general
public, the cessation of unlawful conduct, and the apprehension of wrongdoers.
The determination of what type of action to take, e.g., make an immediate arrest,
pursue a suspect, issue a warning, await backup assistance, etc., is a
discretionary-decisional act entitled to immunity. Once that decision has been
made, however, the execution thereof must be performed in a proper manner, e.g.,
the arrest must be made without excessive force, the pursuit of the suspect must
not be done negligently, the request for assistance must include reasonably
accurate information, etc.[9]
Although the Legislature subsequently removed the ministerial/discretionary distinction from
MCL 691.1407(2),10 police officers remain entitled to wide latitude while in performing their
official duties11 under the language of the statute so long as the officer “is acting or reasonably
believes he or she is acting within the scope of his or her authority.”12
In this case, the record is devoid of evidence that Officer Taylor was grossly negligent
when he temporarily detained Pinnace. Pinnace answered the door at the suspect’s house.
Though his appearance may not have matched the general description Officer Allen gave the
dispatcher, there were obvious similarities between the two. These similarities gave Officer
Taylor probable cause to believe that he was detaining the suspect Officer Allen was pursuing.13
Accordingly, the trial court properly determined that Officer Taylor was acting within the scope
of his authority – not in a grossly negligent manner – when he detained Pinnace temporarily.14
Because defendants were entitled to judgment as a matter of law, summary disposition was
proper.
Affirmed.
/s/ William C. Whitbeck
/s/ Janet T. Neff
/s/ Joel P. Hoekstra
9
Emphasis added and footnote omitted.
10
See Williams v Coleman, 194 Mich App 606, 608, n 4; 488 NW2d 464 (1992).
11
MCL 691.1407(2)(b).
12
MCL 691.1407(2)(a).
13
See Bell v Fox, 206 Mich App 522, 525; 522 NW2d 869 (1994).
14
MCL 691.1407(2)(a), (b).
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