BRENDA CONLEY V THOMAS BOBZEAN
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STATE OF MICHIGAN
COURT OF APPEALS
BRENDA CONLEY, as Personal Representative
of the Estate of CHRISTOPHER CONLEY,
Deceased,
UNPUBLISHED
January 12, 2006
Plaintiff-Appellant,
No. 257276
Lenawee Circuit Court
LC No. 02-002887-NO
v
THOMAS BOBZEAN,
Defendant,
and
JASON CRAWFORD, ROBIN BURKE, JOHN
PAINE, JACK DELAND and CITY OF ADRIAN,
Defendants-Appellees.
Before: Murray, P.J., and Jansen and Kelly, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court’s grant of summary disposition in favor of
defendants, Jason Crawford, Robin Burke, John Paine, Jack DeLand and the city of Adrian, on
plaintiff’s claims of their breach of statutory and common law duties owed to decedent, based on
his status as an alleged “incapacitated” person in accordance with MCL 333.6501, and violation
of duties owed pursuant to 42 USC 1983. We affirm.
Plaintiff contends defendants were negligent by breaching the duty owed to decedent to
detain him in protective custody when he was determined to be intoxicated. Plaintiff asserts the
failure of defendants to abide by the directives of MCL 333.6501 to secure decedent medical
attention constituted the proximate cause of his death and was grossly negligent.
A trial court’s decision on a motion for summary disposition is reviewed de novo on
appeal. Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). The applicability of
governmental immunity is also a question of law reviewed de novo. Baker v Waste Management
of Michigan, Inc, 208 Mich App 602, 605; 528 NW2d 835 (1995).
MCL 333.6501(1) provides:
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An individual who appears to be incapacitated in a public place shall be taken into
protective custody by a law enforcement officer and taken to an approved service
program, or to an emergency medical service, or to a transfer facility . . . for
subsequent transportation to an approved service program or emergency medical
services. When requested by a law enforcement officer, an emergency service
unit or staff shall provide transportation for the individual to an approved service
program or an emergency medical service. This subsection shall not apply to an
individual who the law enforcement officer reasonably believes will attempt to
escape or will be unreasonably difficult for staff to control.
MCL 333.6104(3) defines a person that is “incapacitated” as being:
[A]n individual, as a result of the use of alcohol, is unconscious or has his or her
mental or physical functioning so impaired that he or she either poses an
immediate and substantial danger to his or her own health and safety or is
endangering the health and safety of the public.
First and foremost, plaintiff has failed to demonstrate that decedent meets the definitional
requirements of an “incapacitated” person. Decedent was intoxicated, which was verified by
administration of a PBT test. At the time of police involvement, plaintiff fails to demonstrate
decedent posed “an immediate and substantial danger” to himself or was “endangering the health
and safety of the public.” While decedent had previously been involved in a physical altercation
and purported verbal threats, during the time of police interaction decedent was not engaged in
actions or behavior that constituted a danger to himself or others. Intervention by defendants to
prevent decedent from driving his motor vehicle precluded any implication of decedent being a
threat to himself or the public. The mere appearance of intoxication, without concomitant
existence of dangerous behavior, is not sufficient to necessitate invocation of MCL 333.6501.
Plaintiff’s assertion of liability with regard to the city of Adrian is premised merely upon
a tenuous allegation that the city of Adrian failed to properly discipline or prevent the officers
from engaging in wrongful conduct. If it is demonstrated that the officers did not engage in
wrongful conduct, no liability can be attributed to the city of Adrian. In addition, this Court has
recognized that “a governmental agency is immune from tort liability when ‘engaged in the
exercise or discharge of a governmental function.’” Markis v City of Grosse Pointe Park, 180
Mich App 545, 557; 448 NW2d 352 (1989), quoting MCL 691.1407(1). Maintaining a police
force is a recognized governmental function. Mack v City of Detroit, 254 Mich App 498, 500;
658 NW2d 492 (2002). Therefore, the city of Adrian was entitled to immunity from tort liability
for activities that are related to the operation of its police force.
Plaintiff contends that defendants, by failing to detain decedent, breached their duty to
him and thereby proximately caused his death. To establish a prima facie case of negligence,
plaintiff was required to demonstrate: (1) defendants owed a duty to plaintiff; (2) defendants
breached that duty; (3) the breach of duty by defendants was a proximate cause of plaintiff’s
damages; and (4) plaintiff suffered damages. Markis, supra at 558. This Court has previously
indicated that a “public official’s duty is owed to the public and not to any specific individual in
society.” Id. Based on the absence of any discernible duty, plaintiff is unable to demonstrate a
prima facie case of negligence.
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Defendants correctly assert they are entitled to governmental immunity from tort liability.
Defendants were acting in their official capacity and within the course of their employment and
the scope of their authority. Importantly, the determination by defendants to offer transport to
decedent rather than assume custody of him did not constitute gross negligence and was within
the scope of their authority and, therefore, is entitled to immunity.
Defendants were confronted with a decision whether to take decedent into protective
custody or assist him to an alternative, safe location. Defendants elected the latter course of
conduct. It has been recognized that the course of action elected to be taken by defendants is
precisely the type of action that the concept of governmental immunity was designed to protect.
Morse, supra at 894 n 6.
Plaintiff also contends that defendants’ actions, or inaction, constituted gross negligence
precluding the applicability of governmental immunity. MCL 691.1407(2)(c) allows for
individual immunity for governmental employees as long as their conduct “does not amount to
gross negligence that is the proximate cause of the injury or damage.” “Gross negligence” is
defined within MCL 691.1407(7)(a) as “conduct so reckless as to demonstrate a substantial lack
of concern for whether an injury results.” This Court has held that to establish the existence of
gross negligence:
[S]imply alleging that an actor could have done more is insufficient under
Michigan law, because, with the benefit of hindsight, a claim can always be made
that extra precautions could have influenced the result. However, saying that a
defendant could have taken additional precautions is insufficient to find ordinary
negligence, much less recklessness. Even the most exacting standard of conduct,
the negligence standard, does not require one to exhaust every conceivable
precaution to be considered not negligent.
The much less demanding standard of care – gross negligence – suggests, instead,
almost a willful disregard of precautions or measures to attend to safety and a
singular disregard for substantial risks. It is as though, if an objective observer
watched the actor, he could conclude, reasonably, that the actor simply did not
care about the safety or welfare of those in his charge. [Tarlea v Crabtree, 263
Mich App 80, 90; 687 NW2d 333 (2004).]
There is nothing in the conduct of defendants to suggest gross negligence. Defendants precluded
decedent from driving. Defendants assured transport of decedent to a location, initiated at the
request of decedent’s companion, and ascertained their safe arrival at the designated location.
The trial court properly concluded that no reasonable person could conclude that defendants’
conduct was grossly negligent or was the proximate cause of decedent’s injury.
Further, in order to be the proximate cause of an injury, the asserted gross negligence
must be “the one most immediate, efficient, and direct cause” preceding the injury. Robinson v
Detroit, 462 Mich 439, 462; 613 NW2d 307 (2000). The physical assault on decedent was the
proximate cause of the injury. While the failure of the officers to recognize and address
decedent’s need for medical treatment may have contributed to the final result, their actions
cannot be construed to be the direct cause of the injury sustained.
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Additionally, the public-duty doctrine insulates police officers from tort liability for
negligent failure to provide police protection unless an individual demonstrates the existence of a
special relationship. Gazette v City of Pontiac (On Remand), 221 Mich App 579, 582; 561
NW2d 879 (1997). A special relationship is deemed to exist between a police officer and a
plaintiff if the following four elements are met:
1) Through either promises or action, there is an assumption by the police officer
of an affirmative duty to act on the behalf of the individual who was injured;
2) There exists knowledge by the police officer that a failure to act or inaction
could cause or lead to harm;
3) There is some form of direct contact between the individual injured and the
police officer; and
4) There is justifiable reliance by the individual on the affirmative undertaking by
the police officer. [White v Beasley, 453 Mich 308, 320; 552 NW2d 1 (1996).]
Plaintiff has failed to demonstrate the existence of a special relationship between decedent and
defendants. Plaintiff is unable to demonstrate that defendants had knowledge that their failure to
take decedent for medical intervention would cause or lead to harm. Decedent’s injuries were
incurred outside the presence of police and did not appear significant. The fact that decedent’s
injury was not obvious was confirmed by the postmortem evaluation. The affirmative action
undertaken to transport decedent to an alternative, safe location was completed without incident,
fulfilling any reliance by decedent for actions undertaken on his behalf. Plaintiff is unable to
establish tort liability of defendants for any negligent failure to provide police protection through
imposition of the special relationship exception. Because defendants did not owe decedent a
duty pursuant to the public-duty doctrine, plaintiff’s claim of gross negligence is precluded.
Without establishment of a duty, negligence cannot be found. Hill by Burton v Kokosky, 186
Mich App 300, 302; 463 NW2d 265 (1990).
Plaintiff also presents a strained argument of false imprisonment. While simultaneously
asserting negligence for the failure of defendants to place decedent in protective custody,
plaintiff contends that the officers wrongfully restricted decedent’s liberty during their
investigation. False imprisonment is defined as “an unlawful restraint on a person’s liberty or
freedom of movement.” Peterson Novelties, Inc v Berkley, 259 Mich App 1, 17; 672 NW2d 351
(2003). The elements of false imprisonment include:
(1) an act committed with the intention of confining another,
(2) the act directly or indirectly results in such confinement, and
(3) the person confined is conscious of his confinement. [Walsh v Taylor, 263
Mich App 618, 627; 689 NW2d 506 (2004).]
There is no evidence of restraint or confinement of decedent by defendants. Plaintiff
complains that decedent was not arrested or taken into protective custody. The only restriction
on decedent by police was to preclude use of his motor vehicle based on his intoxicated
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condition. They did not preclude him from leaving the scene. Defendants’ directive to decedent
and his friend to wait in decedent’s car does not comprise confinement. Decedent was not
required to remain in the vehicle or precluded from exiting it. The transport of decedent in a
patrol car does not comprise a confinement that rises to the level of false imprisonment.
Decedent’s friend, with decedent’s tacit concurrence, identified a location they wished to be
transported to and voluntarily entered the police vehicle for that purpose. Plaintiff’s claim falls
short of demonstrating any coercion by defendants or impingement of bodily restrictions upon
decedent. As such, there exists no basis to support plaintiff’s contention of false imprisonment.
Plaintiff amended her complaint to include a claim pursuant to 42 USC 1983, which
provides for liability for individuals who violate a person’s constitutional rights under color of
law. Davis v Wayne County Sheriff, 201 Mich App 572, 576; 507 NW2d 751 (1993). This Court
has noted, “[t]he statute creates no substantive rights, but instead merely supplies a remedy for
deprivation of rights created by other laws.” Id. In order to sustain an action in accordance with
§1983, a plaintiff must demonstrates that:
(1) the defendant acted under color of state law;
(2) the conduct deprived the plaintiff of constitutional rights; and
(3) the deprivation of rights occurred without due process of law. [Markis, supra
at 553, citing Jones v Sherrill, 827 F2d 1102, 1104 (CA 6, 1987).]
A cause of action brought in state court, in accordance with 42 USC 1983, requires this Court to
conduct a review of federal law interpreting the federal statute. Markis, supra at 553. The facts
are to be viewed in a light most favorable to plaintiff and must demonstrate that a constitutional
violation has occurred. If a violation is identified:
[T]he court must then determine “whether the violation involved ‘clearly
established constitutional rights of which a reasonable person would have
known.’” If no constitutional violation occurred, the defendant has qualified
immunity from liability. “Qualified immunity is ‘an entitlement not to stand trial
or face the other burdens of litigation.’” [Dean v Childs, 262 Mich App 48, 5354; 684 NW2d 894 (2004) (citations omitted), rev’d in part on other grds 474
Mich 914 (2005).]
Defendants rely on DeShaney v Winnebago Co Dep’t of Social Services, 489 US 189;
109 S Ct 998; 103 L Ed 2d 249 (1989), to support their contention that plaintiff has failed to
demonstrate a constitutional violation. In DeShaney, the United States Supreme Court rejected a
parent’s argument that the defendant’s failure to protect a minor child from his father’s abusive
and violent behavior, which the agency was aware of or should have been aware of, violated the
minor child’s due process rights. The Supreme Court determined that the Due Process Clause
did not mandate a state to protect its citizens lives, liberty and property against invasion by
private individuals. Nor did the Court require a state to guarantee a minimum level of safety and
security to its citizens. DeShaney, supra at 195-196. Two exceptions to this general rule are
recognized. The first exception encompasses situations in which the government places a person
into custody, preventing him from protecting himself, resulting in the creation of a special
relationship. The formation of this special relationship is deemed to place the government under
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a “heightened duty” to protect the individual placed in custody. The second exception, involves
the imposition of a governmental duty under the “state-created danger theory,” which occurs
when the government either created the danger or engaged in behavior or actions which rendered
the person more vulnerable to the danger. Id. at 198-201; Dean, supra at 54.
Plaintiff’s cause of action must fail because the “Due Process Clause does not confer an
affirmative right to governmental aid, including protective services.” Dean, supra at 54. In
general, “[t]he affirmative duty to protect arises not from the State’s knowledge of the
individual’s predicament or from its expressions of intent to help him, but from the limitation
which it has imposed on his freedom to act on his own behalf.” DeShaney, supra at 200.
Plaintiff’s claim cannot meet the first exception to DeShaney, because decedent was not in
custody at the time of his death. Plaintiff’s allegation that the officers’ detention of decedent
during the questioning of witnesses and their transport of him to another location comprised a
restriction on his freedom and prevented his ability to secure medical attention is without merit.
At no time was decedent searched, handcuffed or physically restricted. Even after being
transported to another location by police, decedent did not seek medical attention. The transport
of decedent and his companion, was at their request, and did not involve any form of coercion.
Plaintiff contends applicability of the state-created danger exception, by generally
asserting the city of Adrian had improperly or not thoroughly trained its officers in policies
regarding mandatory arrests for domestic violence incidents. To establish a claim in accordance
with the state-created danger theory, plaintiff must demonstrate:
(1) an affirmative act by the state which either created or increased the risk that
the plaintiff would be exposed to an act of violence by a third party; (2) a special
danger to the plaintiff wherein the state’s actions placed the plaintiff specifically
at risk, as distinguished from a risk that affects the public at large; and (3) the
state knew or should have known that its actions specifically endangered the
plaintiff. [Dean, supra at 55, citing Cartwright v Marine City, 336 F3d 487, 493
(CA 6, 2003).]
The Sixth Circuit has ruled that a failure to act cannot form an affirmative act to support a statecreated danger. Dean, supra at 55, citing Sargi v Kent City Bd of Ed, 70 F3d 907, 912-913 (CA
6, 1995). Plaintiff has failed to establish an affirmative act on the part of defendants.
Accordingly, defendants cannot be deemed liable, pursuant to §1983, for their failure to secure
decedent medical treatment.
Under specific circumstances, municipal liability in accordance with §1983 has been
recognized by the United States Supreme Court, Canton v Harris, 489 US 378, 380; 109 S Ct
1197; 103 L Ed 2d 412 (1989), for the failure of a municipality to train its employees. In
Canton, the Supreme Court determined that “the inadequacy of police training may serve as the
basis for §1983 liability only where the failure to train amounts to deliberate indifference to the
rights of persons with whom the police come into contact.” Canton, supra at 388. The problem
for plaintiff is her failure to plead any deficiency in training or to demonstrate that the alleged
inadequate training was representative of a “city policy,” which has been described as involving:
[I]n the light of the duties assigned to specific officers of employees the need for
more or different training is so obvious, and the inadequacy so likely to result in
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the violation of constitutional rights, that the policymakers of the city can
reasonably be said to have been deliberately indifferent to the need. In that event,
the failure to provide proper training may be said to represent a policy for which
the city is responsible, and for which the city may be held liable if it actually
causes injury. [Dean, supra at 56, quoting Canton, supra at 390.]
Plaintiff has not demonstrated that this case comprises a failure by defendants to effectuate the
city of Adrian policies for domestic violence complaints. Decedent’s injury was not the product
of a domestic assault mandating the placement of decedent into custody. In addition, unlike the
plaintiff in Canton, decedent was not in police custody. While liability has been imposed in
noncustodial situations, the standard required is higher than deliberate indifference. In
noncustodial situations, a plaintiff is required to demonstrate an affirmative intent to cause harm.
Sacramento v Lewis, 523 US 833, 854; 118 S Ct 1708; 140 L Ed 2d 1043 (1998); Claybrook v
Birchwell, 199 F3d 350, 359 (CA 6, 2000). To impose §1983 liability in noncustodial situations,
plaintiff must demonstrate that the actions of the governmental entity were malicious, intended to
harm or to worsen the condition. Id. Plaintiff has only pled “deliberate indifference,” which is
insufficient to sustain her federal claim.
Affirmed.
/s/ Christopher M. Murray
/s/ Kathleen Jansen
/s/ Kirsten Frank Kelly
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