GREGORY ATKINS V TWP OF FLINT
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STATE OF MICHIGAN
COURT OF APPEALS
GREGORY ATKINS and JEANETTE ATKINS,
UNPUBLISHED
May 18, 2004
Plaintiffs-Appellants,
v
TOWNSHIP OF FLINT, TOWNSHIP OF FLINT
POLICE DEPARTMENT, SARGEANT PAUL
GREEN, and OFFICER CHARLES ABDELLA,
No. 246697
Genesee Circuit Court
LC No. 01-071307-NI
Defendants-Appellees.
Before: Murray, P.J., and Neff and Donofrio, JJ.
PER CURIAM.
Plaintiffs appeal as of right following the trial court’s grant of summary disposition in
favor of defendants, and dismissing plaintiffs’ claims of assault and battery, intentional infliction
of emotional distress, and gross negligence stemming from the arrest of plaintiff Gregory Atkins
after police were dispatched to investigate a domestic dispute at plaintiffs’ home. We affirm.
I
In the early morning hours of January 7, 2000, Flint Township police were dispatched to
the home of plaintiffs Gregory and Jeanette Atkins, husband and wife, after the couple had a
disagreement and Gregory dialed 911. According to Gregory, he had not intended the call to
actually connect and had hung up the receiver. However, the call connected, and, as a matter of
policy, the dispatcher called the Atkins’ home. Police were dispatched to the home to investigate
a domestic dispute.
Two Flint Township police officers and a Genesee County sheriff deputy arrived at the
Atkins home. While one of the officers was questioning Jeanette in a separate room, Greg
intervened in the conversation. Events thereafter are disputed, but a scuffle subsequently ensued
between Greg and the two Flint Township officers. Backup officers were called, and Greg was
placed under arrest.
During the scuffle, one officer sprayed Greg twice with OC spray in an attempt to subdue
him. When the OC spray did not have the desired effect, the officer struck Greg in the side of
the leg with three successive strikes of a collapsible baton, in a further attempt to subdue him.
Eventually, after back-up officers arrived, Greg submitted to the arrest. He was placed in jail
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and charged with domestic assault, assaulting a police officer, and making a false emergency
telephone call. After a preliminary examination, the district court dismissed the charges.
In September 2001, plaintiffs filed this action, alleging claims of assault and battery,
gross negligence, civil rights violation, and intentional infliction of emotional distress.
Defendants moved for summary disposition, arguing that the officers had probable cause to
arrest Greg and that the use of the OC spray and the three strikes to Greg’s common peroneal
nerve followed established police protocol and did not constitute gross negligence. Plaintiffs
argued that the police lacked probable cause to arrest Greg because no domestic assault occurred,
and even if there was probable cause, the officers used excessive force in arresting Greg. The
trial court granted defendants’ motion, finding that the officers’ actions followed established law
enforcement protocol and their actions did not constitute gross negligence.
II
This Court reviews de novo the trial court’s grant of summary disposition to determine
whether the moving party is entitled to judgment as a matter of law. Maiden v Rozwood, 461
Mich 109, 118; 597 NW2d 817 (1999); Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572
NW2d 201 (1998). Defendants moved for summary disposition pursuant to MCR 2.116(C)(7)
and (10). The trial court did not state under which subrule it was granting defendants’ motion.
Summary disposition under MCR 2.116(C)(10) is properly granted when there is no
genuine issue of material fact and the movant is entitled to judgment as a matter of law. Smith v
Globe Life Ins Co, 460 Mich 446, 454; 597 NW2d 28 (1999). The court considers the pleadings,
affidavits, depositions, admissions and other documentary evidence in the light most favorable to
the nonmoving party. Id.
To survive a motion for summary disposition based on governmental immunity under
MCR 2.116(C)(7), a plaintiff alleging a claim involving gross negligence must adduce proof of
conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.
Maiden, supra at 123. This Court considers all admissible documentary evidence submitted by
the parties, accepting as true the contents of the complaint unless affidavits or other appropriate
documents specifically contradict them. Id. at 119.
III
The trial court essentially granted summary disposition on the basis of governmental
immunity, finding that there was probable cause for the arrest and that plaintiffs had failed to
show gross negligence. The governmental immunity statute, MCL 691.1407, provides:
(1) Except as otherwise provided in this act, a governmental agency is
immune from tort liability if the governmental agency is engaged in the exercise
or discharge of a governmental function. Except as otherwise provided in this act,
this act does not modify or restrict the immunity of the state from tort liability as
it existed before July 1, 1965, which immunity is affirmed.
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(2) Except as otherwise provided in this section, and without regard to the
discretionary or ministerial nature of the conduct in question, each officer and
employee of a governmental agency, each volunteer acting on behalf of a
governmental agency, and each member of a board, council, commission, or
statutorily created task force of a governmental agency is immune from tort
liability for an injury to a person or damage to property caused by the officer,
employee, or member while in the course of employment or service or caused by
the volunteer while acting on behalf of a governmental agency if all of the
following are met:
(a) The officer, employee, member, or volunteer is acting or reasonably
believes he or she is acting within the scope of his or her authority.
(b) The governmental agency is engaged in the exercise or discharge of a
governmental function.
(c) The officer’s employee’s member’s, or volunteer’s conduct does not
amount to gross negligence that is the proximate cause of the injury or damage.
As used in this subdivision, “gross negligence” means conduct so reckless as to
demonstrate a substantial lack of concern for whether an injury results.
(3) Subsection (2) does not alter the law of intentional torts as it existed before
July 7, 1986.
Plaintiffs argue that the trial court erred in granting summary disposition on the basis of
governmental immunity because the conduct at issue is an intentional tort, which falls outside the
statutory provisions for immunity. Defendants argue that whether, and to what extent,
governmental immunity applies depends on the status of each defendant. We agree that the
standards applicable to a governmental agency differ from those applicable to individual
defendants. MCL 691.1407; Sudul v City of Hamtramck, 221 Mich App 455, 458 (Corrigan, J.),
486-487 (Murphy, J.); 562 NW2d 478 (1997). The statutory provisions for immunity of
governmental agencies is set forth in subsection 1 of § 7. MCL 691.1407; Sudul, supra at 487.
The provisions for immunity of individual employees is set forth in subsections 2 and 3 of § 7.
MCL 691.1407; Sudul, supra at 487. The legal standards and analysis differ depending on the
status of the defendant, i.e., whether the defendant is a governmental agency or an individual,
and the type of action, i.e., whether the action involves a tort claim that falls outside the
governmental immunity act. Id. at 486-488.
The trial court failed to apply the appropriate statutory provisions for governmental
agencies and individual defendants in rendering its decision. Likewise, on appeal, plaintiffs fail
to distinguish their arguments with respect to the status of the particular defendants and the type
of action. Plaintiffs focus their arguments on the conduct of the individual defendants, i.e., the
police officers, and the torts of assault and battery (and excessive force). We address plaintiffs’
arguments accordingly and find no error in the grant of summary disposition.
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A
Plaintiffs first argue that defendants may not rely on the defense of governmental
immunity because defendants are guilty of an intentional malicious act. Plaintiffs assert that
assault and battery, and excessive force during an arrest, are intentional torts, which are
recognized exceptions to governmental immunity.
This Court has expressly held that an individual employee’s intentional torts are not
shielded by the governmental immunity statute. Sudul, supra at 458, 480. Subsection 3 of § 7 of
the governmental immunity statute provides that the law of intentional torts as it existed before
July 7, 1986, remains unaltered with respect to individual government employees. The
intentional torts of assault and battery (and excessive force) by individual police officers were
recognized exceptions to governmental immunity in Michigan before July 7, 1986, and are
viable claims. Id. at 458, 481, 484. We agree with plaintiffs that the governmental immunity
statute does not shield the defendant officers from plaintiffs’ claims of intentional torts.
However, we disagree that plaintiffs established a triable issue of material fact regarding whether
the officers are liable for the alleged intentional torts in arresting Greg.
Plaintiffs assert that Greg was assaulted by the officers and that his arrest resulted from
maliciousness and resentment on the part of the officers after Greg requested that the officers
leave his home. Plaintiffs contend that evidence established that the police misconduct was
intentional and malicious because there was evidence that the police remained at the Atkins’
home despite the fact that the 911 call had been made in error and there was no actual domestic
dispute, and despite the Atkins’ persistent and reasonable requests that the officers leave.
It is undisputed that plaintiffs had an argument and that Greg placed a call to 911. The
trial court noted that under those circumstances, the police officers’ response and investigation of
the 911 call was within established law enforcement protocol, as was the separate interview of
Jeanette outside Greg’s presence. Plaintiffs do not challenge these findings. Although the
officers’ versions of the scuffle with Greg differs from plaintiffs’ version of events, it is also
undisputed that while Jeanette was being interviewed by Officer Abdella, Greg came into the
room and intervened in the conversation. He made a gesture toward Jeanette, raising his hand.1
After that point, a confrontation between Greg and the officers ensued, and it is undisputed that
Greg resisted the officers’ attempts to physically subdue him and resisted arrest, which resulted
in the alleged injuries.
Under these circumstances, the trial court did not err in dismissing plaintiffs’ claim of
assault and battery. A police officer may use substantial but necessary force to subdue a suspect,
resulting in injury to the suspect. Id. at 458, 485-486. In this case, the use of force by the police
was not unreasonable given the circumstances, and thus there was no tort. Id. at 488. There is
no dispute that the officers were trying to subdue Greg and he refused to submit because he
1
Although the officers and plaintiffs disagree on Greg’s purpose in raising his hand, and whether
Greg was attempting to assault Jeanette, Jeanette stated in her deposition that when Greg came
into the room, his hand was raised.
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believed they were wrong in their actions. When the officers attempted to handcuff Greg, he
would not submit to being handcuffed. Regardless of what precipitated the scuffle with the
officers, once the physical altercation began, the use of force to overcome Greg’s resistance was
justified. Plaintiffs do not dispute that the use of OC spray and three successive strikes to the
common peroneal nerve in the leg are consistent with the police officers’ training to subdue a
suspect and within established law enforcement protocol.
Further, the court did not err in concluding that the police had probable cause to arrest
Greg on the basis of his conduct in intervening in the officer’s interview with Jeanette and
raising his hand as he came toward them, which supports an arrest on the basis of assault,
particularly given that this was a domestic dispute investigation. “Probable cause to arrest exists
where the facts and circumstances within an officer’s knowledge and of which he has reasonably
trustworthy information are sufficient in themselves to warrant a man of reasonable caution in
the belief that an offense has been or is being committed.” People v Champion, 452 Mich 92,
115; 549 NW2d 849 (1996). “[A] police officer may use reasonable force when making an
arrest.” Brewer v Perrin, 132 Mich App 520, 528; 349 NW2d 198 (1984). For the reasons
discussed above, the use of force in this case was reasonable. Id.; Bell v Fox, 206 Mich App 522,
525; 522 NW2d 869 (1994).
Plaintiffs have failed to show that the defendant officers were grossly negligent in
arresting Greg, thereby placing defendants’ conduct within the gross negligence exception to
governmental immunity. Id. Summary disposition of plaintiffs’ gross negligence claim was
proper under MCR 2.116(C)(7) on the basis of governmental immunity.
B
Plaintiffs argue that the trial court erred in granting defendants’ motion for summary
disposition pursuant to MCR 2.116(C)(10) because there was conflicting sworn testimony and
disputed facts surrounding the conduct of the police while in plaintiffs’ home. As discussed
above, although plaintiffs’ version of events differed from the officers’ version of events, the key
facts underlying Greg’s arrest are undisputed. Reasonable minds could not differ that Greg
intervened in the interview with Jeanette and that he resisted the officers attempts to subdue him
and place him under arrest. If reasonable minds could not differ, the issue may be determined by
summary disposition. Stanton v Battle Creek, 237 Mich App 366, 375; 603 NW2d 285 (1999),
aff’d 466 Mich 611; 647 NW2d 508 (2002).
Affirmed.
/s/ Christopher M. Murray
/s/ Janet T. Neff
/s/ Pat M. Donofrio
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