MICHAEL BESTE V TERENCE ANTONIO NEWELL
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STATE OF MICHIGAN
COURT OF APPEALS
MICHAEL BESTE and KATHRYN SUCCARDE,
UNPUBLISHED
July 16, 2002
Plaintiffs-Appellants,
V
No. 230657
Wayne Circuit Court
LC No. 00-005409-NI
CITY OF DETROIT,
Defendant-Appellee,
and
TERENCE ANTONIO NEWELL, TAHA
CLIFF WHELLER, and DETROIT POLICE
DEPARTMENT,
Defendants.
Before: Kelly, P.J., and Murphy and Murray, JJ.
MURPHY, J. (concurring).
I concur with the majority opinion in all respects except I find it unnecessary to
determine whether Robinson v Detroit, 462 Mich 439; 613 NW2d 307 (2000), applies
retroactively because defendant city is entitled to summary disposition even under the overruled
precedent set forth in Rogers v Detroit, 457 Mich 125; 579 NW2d 840 (1998), and Fiser v Ann
Arbor, 417 Mich 461; 339 NW2d 413 (1983) (both cases overruled in Robinson, supra at 445).
Under prior precedent, factors considered in determining the reasonableness of police
pursuits included: (1) whether there was an emergency, (2) the speed of the pursuit, (3) the area
of the pursuit, (4) the weather and road conditions, (5) the presence of pedestrians and other
traffic, (6) the presence or absence of audible and visible warnings, and (7) the reason the
officers were pursuing the fleeing vehicle. Rogers, supra at 144, citing Fiser, supra at 472.
Here, as noted by the majority, Succarde stated in an affidavit that she saw a police
vehicle next to the fleeing vehicle, and she opined that the police vehicle physically forced the
fleeing vehicle into Beste and her. However, Succarde’s opinion appears to be mere
speculation that the police vehicle forced the fleeing vehicle into her car and Beste, and
additionally, there are no facts contained in the affidavit indicating that the police vehicle, or any
police vehicle, was in hot pursuit of the fleeing vehicle, or proceeding in any improper manner.
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MRE 7011. Plaintiffs presented no documentary evidence that would create an issue of fact
negating the reasonableness of the police officers’ actions in the incident under the factors
enunciated in Rogers and Fiser. There was no evidence presented that the officers were driving
at excessive speeds or proceeding through stop signs and signals.
According to officer White, officer Biggers turned their vehicle around and followed the
fleeing vehicle at a speed just slightly over the twenty-five to thirty-five mile per hour speed
limit, and that they lost sight of the fleeing vehicle, at which point officer Biggers proceeded at
the posted speed limit. Officer White believed that Wheeler was not really fleeing the police
because they never had time to take any action, including turning on the lights and siren while in
view, and officer White checked “none” under the special circumstances section of the crash
report, which listed “police chase” as a special circumstance. There is a complete lack of
evidence proving causation. Officer White further testified in her deposition that another police
vehicle in the vicinity also lost sight of the fleeing vehicle.
There is simply no evidence of an improper police pursuit and summary disposition in
defendant city’s favor was proper without regard to Robinson.2
/s/ William B. Murphy
1
MRE 701 requires that a lay witness’ opinion be “rationally based on the perception of the
witness . . . .”
2
Regarding Succarde’s claim concerning the police helicopter, it was also mere speculation, and
moreover, a helicopter is not a “motor vehicle.” MCL 691.1405; MCL 257.33; MCL 257.79 (A
vehicle “means every device in, upon, or by which any person or property is or may be
transported or drawn upon a highway . . . .”).
-2-
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