LENN LATOSKI V DEBORAH LYNN GARLOCK
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
LENN LATOSKI and TRACY ORNATOWSKI,
UNPUBLISHED
October 18, 2002
Plaintiffs/Counter-DefendantsAppellants,
v
No. 236096
Mackinac Circuit Court
LC No. 99-004752-CZ
DEBORAH LYNN GARLOCK,
Defendant/Counter-Plaintiff,
and
MICHIGAN STATE POLICE, ROBIN SEXTON,
MARK SOSNOSKI, GEORGE TIERNAN,
CLINT MICHELIN, and EMMETT BLAKE,
Defendants-Appellees,
and
JOHN DOE 3 and JOHN DOE 4,
Defendants.
________________________________________
Before: Hood, P.J., and Bandstra and O’Connell, JJ.
PER CURIAM.
Plaintiffs Lenn Latoski and Tracy Ornatowski appeal as of right from a grant of summary
disposition in favor of defendants1 under MCR 2.116(C)(7).2 We affirm.
1
Plaintiffs’ claim against defendant Deborah Lynn Garlock was successfully mediated;
therefore, the term “defendants” refers only to the Michigan State Police and named and
unnamed individual state police officers.
2
The trial court also granted summary disposition in a separate Court of Claims case arising out
of the same incidents against the state of Michigan and the director of the Michigan State Police.
-1-
Plaintiffs argue that defendants were grossly negligent in their responses to allegations
that Latoski had pointed a gun at Garlock and her son as they rode past his property on an allterrain vehicle (ATV), strung a wire across a public trail on which Garlock rode her ATV, and
set fire to Garlock’s house on two separate occasions.3 Latoski was also accused of causing
property damage to another neighbor’s car by scratching it with the prosthetic device he wears
on his right arm. The trial court held that defendants were immune from suit because their
alleged conduct during the investigations did not amount to gross negligence as a matter of law.
We review the trial court’s decision to grant a motion for summary disposition under
MCR 2.116(C)(7) de novo to determine if the moving party was entitled to judgment as a matter
of law, considering the entire record in making the determination whether summary judgment
was appropriate. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). For this
purpose, we accept plaintiffs’ well-pleaded allegations as true and construe them in a light most
favorable to plaintiffs. Stabley v Huron-Clinton Metropolitan Park Authority, 228 Mich App
363, 365; 579 NW2d 374 (1998).
Because defendants were state police officers acting within the scope of their authority
and exercising a governmental function, they are generally immune from liability unless their
conduct amounted to gross negligence. MCL 691.1407. Plaintiffs first allege that during the
execution of the search and arrest warrants, defendants pointed their guns at plaintiffs, conducted
pat-down searches, and spoke in a “disrespectful, threatening, and intimidating manner,” and that
this constituted gross negligence. Where a plaintiff alleges that a defendant government
employee was negligent, “summary disposition is precluded in cases in which reasonable jurors
could honestly have reached different conclusions with regard to whether the defendant’s
conduct amounted to gross negligence.” Vermilya v Dunham, 195 Mich App 79, 83; 489 NW2d
496 (1992).
At the time the first warrant was executed, Latoski was under suspicion of aiming a
firearm at a neighbor. Police officers have a wide degree of discretion to determine how to
respond in potentially dangerous situations, Ross v Consumers Power Co (On Rehearing), 420
Mich 567, 659; 363 NW2d 641 (1984), and “a police officer may use reasonable force when
making an arrest,” Brewer v Perrin, 132 Mich App 520, 528; 349 NW2d 198 (1974). Likewise,
“[o]n the basis of a reasonable suspicion of criminal activity and reasonable fear for the safety of
himself and others, a police officer may pat down an individual for the limited purpose of
discovering weapons.” People v McCrady, 213 Mich App 474, 482; 540 NW2d 718 (1995). See
also People v Jackson, 188 Mich App 117, 121; 468 NW2d 523 (1991). Thus, no reasonable
juror could have found that this conduct constituted gross negligence, and the trial court properly
granted summary disposition with respect to these claims. Vermilya, supra at 83.
Plaintiffs also allege that defendants treated them in a “disrespectful, threatening, and
intimidating manner”; however, the complaint does not give specific examples. A review of the
record indicates that the conduct most likely to fit this description includes one of the officers
telling Ornatowski, “Freeze, or I’ll shoot,” and another repeatedly and angrily accusing plaintiffs
of setting the fire at Garlock’s home, and telling plaintiffs to “shut up” while simultaneously
3
Garlock herself was ultimately charged with the second arson.
-2-
asking more questions. Because no reasonable juror could have found that this conduct
constituted gross negligence – in other words, “conduct so reckless as to demonstrate a
substantial lack of concern for whether an injury results,” MCL 691.1407(2)(c), the trial court
properly granted summary disposition with respect to this conduct. Vermilya, supra at 83.
Plaintiffs next argue that defendants’ affidavits supporting the search and arrest warrants
were unsupported by probable cause and that this amounted to gross negligence. See Bell v Fox,
206 Mich App 522, 525; 522 NW2d 869 (1994). A search warrant may only be issued if
probable cause exists to justify the search. US Const, Amend IV; Const 1963, art 1, § 11; MCL
780.651; People v Sloan, 450 Mich 160, 166-167; 538 NW2d 380 (1995). In reviewing whether
probable cause existed, we determine “whether a reasonably cautious person could have
concluded, under the totality of the circumstances, that there was a substantial basis for the
magistrate’s finding of probable cause.” People v Darwich, 226 Mich App 635, 637; 575 NW2d
44 (1997).
As a preliminary matter, we note that Latoski is not collaterally estopped from
challenging the probable cause finding in his arrest for assault simply because he was bound over
for trial. See Fort Wayne Mortgage Co v Carletos, 95 Mich App 752, 758; 291 NW2d 193
(1980). However, in light of the fact that none of the statements specified in plaintiffs’ brief are
false, we also consider plaintiffs’ argument that the probable cause affidavits contained false
statements to be without merit. Franks v Delaware, 438 US 154, 171-172; 98 S Ct 2674; 57 L
Ed 2d 667 (1978); People v Stumpf, 196 Mich App 218, 224; 492 NW2d 795 (1992).
In our view, probable cause to search for firearms and to arrest Latoski for assault was
established based on Garlock’s eyewitness report. MCL 780.653; People v Powell, 201 Mich
App 516, 522; 506 NW2d 894 (1993). Identified citizens and police officers are presumptively
reliable, Powell, supra at 523, and the fact that Garlock ultimately proved an unreliable witness
has no bearing on her credibility at the time she reported Latoski’s alleged assault. Because
Garlock’s report was sufficient to lead a prudent person to believe that Latoski committed the
crime, the fact that defendants did not interview other possible witnesses does not negate
probable cause. Koski v Vohs, 426 Mich 424, 436; 395 NW2d 226 (1986).
Probable cause also existed to suspect plaintiffs of stringing a wire across the public path,
given that the location of the wire was near both Garlock’s and plaintiffs’ homes and that
defendants and Garlock had engaged in disputes over the use of ATVs in the area. Likewise,
probable cause existed to suspect plaintiffs of arson, given the history of hostilities, the proximity
of their homes, and the tracking dog evidence. The fact that the affidavit was prepared by an
officer who did not participate in the initial investigation is irrelevant. See People v Mackey, 121
Mich App 748, 753-754; 329 NW2d 476 (1982).
Furthermore, although plaintiffs argue that the search of their property after the second
arson was unsupported, they do not challenge defendants’ explanation that the first search
warrant was still in effect. Accordingly, a finding of probable cause to search plaintiffs’ property
for accelerants and other evidence was supported. Darwich, supra at 637. Taking the totality of
the circumstances into account, a reasonably cautious person could have concluded that there
was a substantial basis for a finding of probable cause for these searches. Id. For these reasons,
-3-
we affirm the trial court’s grant of summary disposition with respect to Counts II, IV, V, and
VI.4
We next hold that there was probable cause to suspect Latoski of damaging a neighbor’s
car, alleged in Count III of plaintiffs’ complaint. In the police officer’s judgment, the damage
was consistent with what a prosthetic hook might have caused. See generally Ross (On
Rehearing), supra at 659 (police officers have wide discretion in criminal investigations).
Furthermore, plaintiffs had experienced disagreements with this neighbor regarding placement of
items on each others’ property. Consequently, a reasonably cautious person could have found a
substantial basis for the finding of probable cause concerning Latoski as a suspect in the property
damage incident. See Darwich, supra at 637. Thus, probable cause to suspect Latoski precluded
a finding of gross negligence on this issue. Vermilya, supra at 83.
With regard to the remainder of plaintiffs’ claim in Count III, we also agree with the trial
court that defendants’ seizure and retention of Latoski’s prosthetics did not constitute gross
negligence either. Seizure of property during execution of a search warrant is governed by MCL
780.655(2), which provides in relevant part that “property and things that were seized shall be
safely kept by the officer so long as necessary for the purpose of being produced or used as
evidence in any trial.” Although the property seized was uniquely personal, it fit the standard for
seizure. Moreover, defendants persuasively argue that the delay in returning Latoski’s property
was caused by the laboratory, not the police officers.
Therefore, the trial court did not err in granting defendants’ motion for summary
disposition on Count III of plaintiffs’ complaint. Vermilya, supra at 83. Accordingly, we must
affirm the trial court’s holding dismissing the derivative loss of consortium claim in Count VIII.
See Moss v Pacquing, 183 Mich App 574, 583; 455 NW2d 339 (1999) (“recovery for loss of
consortium stands or falls upon . . . recovery of damages”).
Finally, the trial court properly dismissed plaintiffs’ state constitutional claim under
Count VII because damages are not available against individual state officers if other remedies
are available. Jones v Powell, 462 Mich 329, 335; 612 NW2d 423 (2000); Smith v Dep’t of
Public Health, 428 Mich 540; 410 NW2d 749 (1987). Because plaintiffs could and did seek a
remedy under common-law tort principles, a constitutional claim is foreclosed in this case.
Jones, supra at 339 (Kelly, J., concurring); Smith, supra at 651-652. Thus, the trial court did not
abuse its discretion in refusing to allow plaintiffs to amend this count to state a claim for gross
negligence on the ground that amendment would have been futile. See MCR 2.116(I)(5); Ben P
Fyke & Sons v Gunter Co, 390 Mich 649, 656-657; 213 NW2d 134 (1973).
Affirmed.
/s/ Harold Hood
/s/ Richard A. Bandstra
/s/ Peter D. O’Connell
4
Count I, alleging malicious prosecution, was dismissed following the parties’ acceptance of a
mediation decision.
-4-
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.
