CATHERINE SIMMONS V GREEKTOWN CASINO LLC
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STATE OF MICHIGAN
COURT OF APPEALS
CATHERINE SIMMONS,
UNPUBLISHED
September 24, 2009
Plaintiff-Appellee,
v
No. 286845
Wayne Circuit Court
LC No. 06-604544-CZ
GREEKTOWN CASINO LLC,
Defendant,
and
STEVEN FORD,
Defendant-Appellant.
Before: Murphy, P.J., and Meter and Beckering, JJ.
PER CURIAM.
Defendant Steven Ford1 appeals as of right from the trial court’s order denying his
motion for summary disposition based on governmental immunity. We affirm. This appeal has
been decided without oral argument pursuant to MCR 7.214(E).
Plaintiff’s cause of action arose out of an incident occurring in August 2005 at the
Greektown Casino. Casino staff members found plaintiff’s conduct suspiciously indicative of
money laundering and summoned defendant, a state police officer. After observing plaintiff by
means of surveillance cameras, defendant decided to investigate further. He approached
plaintiff, identified himself, and asked her to come with him off of the gaming floor for
questioning. Plaintiff was detained for approximately three and one-half hours, during which
time defendant took the substantial amount of cash plaintiff possessed (around $29,000) and told
her that she could have it back if she brought documentation to defendant’s Cadillac Place office
1
Defendant Greektown Casino LLC settled with plaintiff. “Defendant” in this report refers to
Ford.
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substantiating her story that she obtained the cash by refinancing a mortgage. Plaintiff did so
two days after defendant questioned her. Plaintiff’s cash was returned, and she was never
charged with any offense.
In February 2006, plaintiff sued defendant and the Greektown Casino, alleging false
arrest, false imprisonment, intentional infliction of emotional distress, defamation, and civil
rights violations. Eventually, only the false arrest and imprisonment claims against defendant
remained. Relevant to those claims, plaintiff alleged that she was not given anything to drink
during her detention, nor was she offered an opportunity to use the bathroom. According to the
complaint, defendant “with show of force and against Plaintiff’s will, falsely, unlawfully,
wrongfully, and without just cause, arrested and imprisoned Plaintiff.” Plaintiff further alleged
that her arrest and imprisonment were done “without right or authority.” Defendant moved for
summary disposition, arguing that, because he was a governmental employee acting within the
scope of his duties, plaintiff bore the burden of pleading in avoidance of governmental immunity.
He asserted that summary disposition was appropriate because the facts established both
articulable suspicion to detain plaintiff as well as probable cause to arrest her for money
laundering. Defendant argued that nothing in the record gave rise to gross negligence. In
response, plaintiff argued that, at a minimum, she had raised a question of fact regarding the
legality of her arrest. The trial court agreed, stating in its order that defendant’s motion was
denied because he arrested plaintiff without probable cause.
On appeal, defendant reiterates his argument that plaintiff bears the burden of proof in
governmental immunity cases, and asserts that his actions were objectively reasonable. Plaintiff
points out that after defendant filed his brief, our Supreme Court explained the law regarding
immunity for individual governmental employees in Odom v Wayne Co, 482 Mich 459; 760
NW2d 217 (2008), and she contends that defendant fails to argue as required by Odom. We
agree.
We review de novo the trial court’s decision to deny defendant’s motion for summary
disposition. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).
“Under MCR 2.116(C)(7), the moving party is entitled to summary disposition if the plaintiff’s
claims are barred because of immunity granted by law.” Odom, supra at 466 (quotations and
citation omitted). The contents of the complaint are accepted as true unless contradicted by
admissible evidence. Id.
The governmental tort liability act (GTLA), MCL 691.1401 et seq., provides in relevant
part at MCL 691.1407:
(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.
(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
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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.
(3) Subsection (2) does not alter the law of intentional torts as it existed
before July 7, 1986.
Although a plaintiff must plead in avoidance of governmental immunity when suing an
agency, an individual defendant must affirmatively plead the defense. Odom, supra at 479.
When an intentional tort is claimed, the court must determine whether the defendant established
that he is entitled to individual governmental immunity by showing the following:
(a) The acts were undertaken during the course of employment and the employee
was acting, or reasonably believed that he was acting, within the scope of his
authority,
(b) the acts were undertaken in good faith, or were not undertaken with malice,
and
(c) the acts were discretionary, as opposed to ministerial. [Id. at 480, citing Ross
v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984).2]
Under MCL 691.1407, the GTLA protects governmental employees from suits for ordinary
negligence. However, claims of false arrest and false imprisonment sound in intentional tort, not
negligence. Odom, supra at 480. When a plaintiff has alleged intentional tort claims against a
police officer, the officer is entitled to immunity only if he or she shows that the acts were
undertaken during the course of employment and the officer was acting, or reasonably believed
that he or she was acting, within the scope of his or her authority; the acts were undertaken in
good faith, or were not undertaken with malice; and the acts were discretionary, as opposed to
ministerial. Id. The question of probable cause, however, is not the proper inquiry. Id. at 481.
2
Odom did not identify a new test; it clarified what test applies under MCL 691.1407(3). Odom,
supra at 473.
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A police officer is entitled to immunity if he or she acted in good faith and honestly believed that
there was probable cause to arrest, even if he or she actually lacked probable cause. Id.
Conversely, if the officer acted with “‘malicious intent, capricious action or corrupt conduct’ or
‘willful and corrupt misconduct’” when making an arrest, governmental immunity will not
protect the officer even if probable cause is found. Id. at 474, quoting Veldman v Grand Rapids,
275 Mich 100, 113; 265 NW 790 (1936), and Amperse v Winslow, 75 Mich 234, 245; 42 NW
823 (1889).
In this case, the trial court proceedings focused on whether defendant had probable cause
to arrest, which is not the correct inquiry, as Odom explains. Nonetheless, the trial court reached
the correct outcome because the burden was on defendant to support his defense of immunity,
not on plaintiff to prove it. Plaintiff alleged the arrest was unlawful and wrongful, and clearly
identified her claim as one for false arrest and imprisonment. Once plaintiff pleaded an
intentional tort, the burden fell on defendant to show he acted in good faith. Id. at 480. This
defendant did not do. His argument both in the trial court and in this Court focuses only on
whether his actions were objectively reasonable. That is not the test outlined in Odom.
Defendant’s argument utterly fails to address the element of good faith. Thus, the trial court
correctly denied his motion for summary disposition.
Affirmed.
/s/ William B. Murphy
/s/ Patrick M. Meter
/s/ Jane M. Beckering
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