Sudul v. City of Hamtramck

562 N.W.2d 478, 221 Mich. App. 455

• Court: Michigan Court of Appeals
• Decided: April 29, 1997
• Docket: Docket 170609
• Status: Published

Opinions

Corrigan, J.

Defendants were not accorded a fair trial because the error regarding assault and battery by gross negligence pervaded the jury instructions and rendered the other special verdicts unsound. We reverse and remand for further proceedings consistent with this opinion.

We specifically agree with the discussion in the dissent/concurrence regarding the nonexistence of a tort called “assault and battery by gross negligence.” We especially also hold that an individual employee’s intentional torts are not shielded by our governmental immunity statute, a proposition that too frequently is mired in confusion. Nonetheless, we disagree with the position taken in the dissent/concurrence on two grounds.

I. EFFECT OF DEFECTIVE JURY INSTRUCTIONS ON INTEGRITY OF SPECIAL VERDICTS

We part company with the position taken in the dissent/concurrence with respect to the scope of the reversal. While we accept the utility of special verdicts in saving sound portions of a verdict, we nonetheless vacate all the special verdicts in this case because the flaws in the jury instructions regarding assault and battery by gross negligence tainted the entire verdict.

Justice Otis Smith observed in Sahr v Bierd, 354 Mich 353, 365; 92 NW2d 467 (1958), quoting Sunderland, Verdicts, General and Special, 29 Yale LJ 253, 259 (1920):

“The special verdict compels detailed consideration. But above all it enables the public, the parties and the court to see what the jury really has done. The general verdict is either all wrong or all right, because it is an inseparable and inscrutable unit. A single error completely destroys it. But the special verdict enables errors to be localized so that the sound portions of the verdict may be saved and only the unsound portions be subject to redetermination through a new trial.”

We cannot say that the special verdicts concerning excessive force, grossly negligent infliction of emotional distress, and the various derivative claims were unaffected by the instructional error. The instructional error was not harmless.

After being instructed incorrectly that defendants could be held responsible for assault and battery if they were grossly negligent, the jury retired to deliberate. Three hours later, the jurors posed several questions to the court. They first inquired whether excessive force constituted assault and battery. The court, with the agreement of counsel, replied that it did. The court’s answer that excessive force was the same as assault and battery reinforced the original error that defendants could be liable for assault and battery by an act of gross negligence.

The court earlier had instructed the jury:

Gross negligence is defined in our state by statute, and it is defined as conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results. The same statute states — grants immunity from tort liability to police officers performing their duty, provided that the police officers’ actions are not grossly negligent. This means that the officers are not liable to plaintiffs for assault, battery or excessive force unless you find that their actions were grossly negligent. [Emphasis added.]

The court then gave the correct definitions of assault and battery as set forth in SJI2d 115.01 and 115.02. The court further instructed the jury that the City of Hamtramck

may be liable where if you find that the plaintiffs have been subjected to excessive force in plaintiffs arrest and excessive force was done pursuant to a governmental custom, policy, or practice.

The court also merged the concepts of gross negligence and assault and battery in its instructions regarding compensatory and future damages:

If you decide that the plaintiffs, Anthony and Bernard Sudul, are entitled to damages, it is your duty to determine the amount of money which reasonably, fairly, and adequately compensate [s] each of them for the elements of damage which you decide has resulted from the assault, battery and excessive force by the defendants’ grossly negligent conduct and/or from the violation of plaintiffs’ federal constitutional rights by each police officer or the city, taking into the account the nature and extent of the injury.

* * *

If you decide that the plaintiffs, Anthony and Bernard Sudul, are entitled to damages in the future, it is your duty to determine the amount of money which reasonably, fairly and adequately compensates each of them for each of the elements of damage in the future which you decide has resulted from the assault/battery and excessive force by the defendants’ grossly negligent conduct and/or from the violation of plaintiffs’ federal constitutional rights by each of the police officers or the city, taking into account the nature and extent of the injury. [Emphasis added.]

The verdict form asked specifically whether the officers assaulted plaintiff Anthony Sudul by an act of gross negligence or battered plaintiff Anthony Sudul by an act of gross negligence. As noted, defendants specifically objected on the very ground on which they have here prevailed — that the tort of assault and battery by gross negligence does not exist.

It is critical to us that this misinstructed jury nevertheless returned verdicts of no cause of action for three of the five individual defendant police officers involved in Anthony Sudul’s arrest. The court apparently had earlier directed verdicts for two named individual defendants. The jury found only Officers David Donnell and William Robinson, who pushed Sudul to the ground to handcuff him after he resisted arrest, liable with respect to the claims of grossly negligent assault and battery and excessive force. Moreover, although Chief Alexander Shulhan was named personally as a defendant, the jury did not decide the question of his liability. The record does not account for the disposition of plaintiffs’ claims against the police chief. The question of Chief Shulhan’s personal liability was not before the jury. Only the City of Hamtramck’s liability was before the jury.

We cannot conclude that the instructions as a whole, some correct and some incorrect, clearly apprised the jury of the governing law and protected defendants’ rights. The court improperly defined assault and battery, then equated it with excessive force and gross negligence. Where a court gives conflicting instructions, one of which is erroneous, we generally presume that the jury followed the erroneous instruction. Kirby v Larson, 400 Mich 585, 606-607; 256 NW2d 400 (1977). Indeed, the jury’s subsequent intelligent questions reflected its attempt to understand and follow the court’s confusing instructions. The court’s instructions permitted the jury to find liability without the requisite finding of intent for assault and battery, then merged an erroneous definition of assault and battery with the definition of excessive force in response to the jury’s explicit question regarding the nature of those torts.

The author of the dissent/concurrence would also recognize a novel tort of grossly negligent infliction of emotional distress, not recognized previously in any reported case. Our Supreme Court has yet to recognize formally the tort of intentional infliction of emotional distress. We doubt that the Supreme Court would recognize such grossly negligent emotional distress where the shocking and outrageous event that the child bystander witnessed may well have been nothing more than a lawful arrest involving the use of reasonable force. On this record, we have serious reservations regarding the correct application of law to facts. These defendants are as entitled as any litigant to deliberations by a jury that has been instructed correctly concerning the law.¹ The instructional error is manifest, is not isolated, and is not harmless. In our view, failure to reverse all the verdicts affected by the defect is inconsistent with substantial justice. Id.

H. MUNICIPAL LIABILITY UNDER 42 USC 1983 FOR THE POLICE CHIEF’S FAILURE TO INVESTIGATE

We disagree that the City of Hamtramck is liable under 42 USC 1983 because its police chief displayed deliberate indifference as a matter of custom or policy by failing to investigate whether any police officers battered and used excessive force against plaintiff Anthony Sudul during his October 1991 arrest. In 42 USC 1983 parlance, Chief Shulhan was a final municipal policymaker whose official conduct must be scrutinized to determine municipal liability. The police chief was not involved personally in the arrest or its aftermath. He never personally investigated plaintiffs’ claims. In fact, he apparently did not even know about plaintiffs’ claims of excessive force until they filed the instant lawsuit.

To affirm the verdict that the city, through Chief Shulhan, was deliberately indifferent, Judge Murphy concludes that Chief Shulhan failed to enforce policies regarding excessive force in two ways. First, he failed to enforce unspecified departmental policies to ensure that he had the necessary information to supervise and discipline the officers. Second, he failed to conduct a parallel investigation after the instant lawsuit commenced. Neither ground justifies imposition of liability on the city.

We accept the statements in the dissent/concurrence regarding the governing standards for determination of municipal liability in 42 USC 1983 cases. Liability under 42 USC 1983 must be premised upon more than a municipal employee’s status as a tortfeasor. Further, a municipality cannot be liable under 42 USC 1983 on a respondeat superior theory.² In our view, the evidence does not show Chief Shulhan’s deliberate indifference to Anthony Sudul’s Fourth Amendment rights. Viewed in a light most favorable to plaintiffs, the record reflects that the desk sergeant on duty, Sergeant Misiak, failed to inquire about Anthony Sudul’s visible injuries, obstructed the family’s report, and thus obstructed Chief Shulhan’s knowledge of official misconduct. This obstruction is not attributable vicariously to Chief Shulhan.

Nothing in this record shows that the chief ratified, authorized, or knowingly acquiesced in any misconduct. “ ‘The established law is clear that someone in a supervisory capacity . . . must have at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending employee.’ ” Durham v Nu’man, 97 F3d 862, 869 (CA 6, 1996).

A. FAILURE TO ENFORCE POLICIES TO INFORM THE CHIEF OF THE MISCONDUCT

Chief Shulhan testified that he was apprised of the use of force in the Sudul matter. Officer Peter Garon completed a preliminary complaint report detailing Mr. Sudul’s resistance and his physical injuries, in compliance with departmental policy. Accordingly, the departmental policy to report the use of force resulting in physical injury was satisfied. The chief reviewed this report and saw no need to act.

The written departmental policy required that “one who observes visible injuries must make a preliminary complaint report.” Thus, the chief had formulated policy governing this situation. Rushing v Wayne Co, 436 Mich 247; 462 NW2d 23 (1990). Nor did the chief, as the final policymaker, fail to enforce procedures established by this policy. The record demonstrates that Chief Shulhan had conducted six civil rights investigations of officer misconduct in the previous five years. Four investigations resulted in the officer at issue being exonerated, while two resulted in referrals to the Wayne County Prosecutor’s Office for prosecution. Hence, the custom, policy, or practice of the Hamtramck police chief was not to engage in ostrich-like behavior regarding constitutional rights violations. The record contains no proof that Chief Shulhan knew about a “code of silence” and failed to act. While Marchese v Lucas, 758 F2d 181 (CA 6, 1985), contains broad language imposing on command level officials almost an omniscient duty to know and act, the standards articulated in City of Canton v Harris, 489 US 378; 109 S Ct 1197; 103 L Ed 2d 412 (1989), seem to modify the broad policy language of Márchese. Chief Shulhan conceded that the desk sergeant failed in his duty to inquire how Anthony Sudul sustained his injuries. We cannot conclude that these proofs established the city’s deliberate indifference that acted as a moving force resulting in the violation of Mr. Sudul’s right to be free from the use of excessive force.

The police department also had a policy in place that permitted a citizen to complain about police misconduct to the front desk officer. Chief Shulhan testified that if the desk sergeant could not resolve the citizen’s complaint, the officer was to reduce the complaint to writing and transmit it for further investigation. Mr. Sudul himself never complained of excessive force at the time; indeed, he did not complain until suit was filed. Family members testified that they complained, but were deterred by the obstructive conduct of the front desk sergeant.

The police chief did not delegate complete discretion to the desk sergeant, who is not a final policymaker, to implement departmental policy, where the police chief knew about force resulting in physical injury and decided not to inquire. The police chief may well have been negligent in not identifying the Sudul case as one that warranted investigation. But we do not believe that a reasonable jury could find that Chief Shulhan’s conduct was so deliberately indifferent that it was the moving force in the constitutional violation.

B. THE CHIEF’S POST-LAWSUIT BEHAVIOR

Next, the author of the dissent/concurrence would find deliberately indifferent the police chief’s failure to conduct a full-scale, parallel investigation after plaintiffs filed the instant lawsuit. The chief’s conduct after the lawsuit was filed in February 1992 did not cause or act as the moving force in the deprivation of Anthony Sudul’s Fourth Amendment rights during and after his arrest in October 1991. It is a logical impossibility. The flawed custom or policy (the chief’s post-lawsuit behavior) and the constitutional violation are not connected in any logically or legally relevant manner. Proof of causation is utterly absent on this record.

Moreover, the chief’s reliance on the advice of the city attorney and the city’s retained counsel after litigation ensued cannot fairly be styled as “deliberately indifferent.” Once any lawsuit arises against a municipality, the management responsibility shifts to additional officials. The chief did not offend 42 USC 1983 when he did not conduct a separate but parallel investigation but consulted with defense counsel, who also reported to the city attorney and the city council, regarding the lawsuit. The chiefs reasonable actions in consulting with the city’s legal counsel rather than mounting an independent investigation do not warrant a finding of deliberate indifference.

Most fundamentally, the proposed use of the chief’s post-lawsuit behavior as suggested in the dissent/concurrence would offend procedural due process. The chief’s post-lawsuit behavior was never specifically charged or articulated by plaintiffs as a ground for complaint. Even the last amended complaint does not allude to the police chief’s failure to investigate after suit was filed. Plaintiffs never advanced this theory of liability in their opening statement or closing argument. The only developed record of the chief’s post-lawsuit conduct arose through defense counsel’s questions to the chief in rebuttal of a short inquiry on plaintiffs’ direct examination.

C. LIABILITY FOR SINGLE INCIDENT

Finally, although it is not necessary to our decision, we question the continuing validity of the legal conclusion that a single mistake of a municipal policymaker can amount to an unconstitutional municipal custom, policy, or practice. Recently, the United States Supreme Court has indicated an intent to consider whether a single incident of deliberate indifference can justify municipal liability under 42 USC 1983. Brown v Bryan Co, 67 F3d 1174 (CA 5, 1995), cert gtd sub nom Bryan Co Bd of Co Comm’rs v Brown,_US_; 116 S Ct 1540; 134 L Ed 2d 645 (1996). See, generally, Pembaur v Cincinnati, 475 US 469; 106 S Ct 1292; 89 L Ed 2d 452 (1986); Monell v New York City Dep’t of Social Services, 436 US 658; 98 S Ct 2018; 56 L Ed 2d 611 (1978); Oklahoma City v Tuttle, 471 US 808; 105 S Ct 2427; 85 L Ed 2d 791 (1985). Although Bryan Co involves deliberately indifferent conduct involved in a background investigation, the underlying principle applies in this setting. We would adopt the dissenting opinion of Circuit Judge Emilio Garza in Bryan Co, supra at 1186:

I do not agree, therefore, with the majority’s implicit reasoning that any ‘distinction between policies that are themselves unconstitutional and those that cause constitutional violations’ is ‘metaphysical.’ Tuttle, 471 US at 833 n 8, 105 S Ct at 2441 n 8 (Brennan, J., concurring). The majority incorrectly, in my opinion, follows our opinion in Gonzalez [v Ysleta Independent School Dist, 996 F2d 745 (CA 5, 1993)] in holding that Sheriff Moore’s single decision created municipal liability, without reconciling the Supreme Court’s instruction in Tuttle that a jury must have ‘considerably more proof than the single incident’ before it can find causation. There is a constitutional difference between a sheriff ordering his deputies to violate citizens’ constitutional rights, see, e.g., Pembaur, 475 US, at 484-485, 106 S Ct at 1300-01 (imposing liability for County Prosecutor’s direct order to police officers to violate Fourth Amendment), and one that hires a reserve deputy without conducting an adequate background investigation. In the latter instance, greater proof is required in order to establish the connection between the policy and the constitutional violation.

As Judge Garza observed, a policymaker’s single act of deliberate indifference is not the municipal policy of a governmental entity. The record does not reflect an inadequacy amounting to deliberate indifference in the department’s policy of handling complaints of police misconduct; instead, it depicts the flawed execution of that policy in this case.

The theory articulated in the dissent/concurrence is a veiled method of imposing respondeat superior liability on the city for the wrongful behavior of the desk sergeant in failing to pursue the Sudul family’s complaint. Hamtramck did not authorize or ratify this police misconduct through its customs, policies, or practices. No constitutional provision is offended by requiring a civil rights complainant to proceed on the basis of a formal complaint. Police investigation of all crimes, including potential civil rights violations, usually proceeds in such a fashion. In governmental bureaucracies, committing scarce resources to investigations on the basis of written complaints, rather than mere verbal ones, is both sensible and orderly. Indeed, this Court requires more than only oral representations by litigants, no matter how egregious their constitutional claims may be.

Assuming that Chief Shulhan was somehow deliberately indifferent for failing to investigate this case, his single error was not the moving impetus in the two officers’ misconduct, where the existing investigative structure, pursuant to demonstrated policy, previously had resulted in internal investigations of police misconduct claims by the final policymaker. Not every act of a municipal policymaker amounts to a municipal custom, policy, or practice. Bryan Co, supra. See also Rushing, supra at 267 (Boyle, J., concurring).

As a matter of pure logic, a single incident does not a custom, policy, or practice make. Webster’s Third New International Dictionary defines “policy” as a “definite course or method of action selected . . . from among alternatives and in light of given conditions to guide and determine present and future decisions.” A “custom” is defined as “a usage or practice that is common to many or to a particular place or class or is habitual with an individual,” a “long-established practice . . . considered as unwritten law,” or a “repeated practice.” A “practice” is defined as “repeated or customary action.”

Where a policymaker’s decision does not itself directly order or authorize a constitutional violation, more than a single incident should be necessary to establish causation. 42 USC 1983 imposes liability for violations of constitutional rights, not for violations of duties of care under tort law. The United States Supreme Court may clarify the governing standards in the Bryan Co case. If that Court adopts a more stringent standard, defendant would be entitled to a directed verdict on legal grounds.

Because the record does not reflect a custom or policy of deliberately indifferent supervision and discipline that proximately caused the use of excessive force against plaintiff Anthony Sudul, we direct the entry of a verdict for defendant city with respect to plaintiff’s 42 USC 1983 claim.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

R D. Hour, J., concurred.

1 At various points during trial, both plaintiffs’ counsel and the court erroneously stated that the officers could be held liable for their subjective “bad faith” in the use of excessive force, a standard repudiated nearly five years earlier in Graham v Connor, 490 US 386; 109 S Ct 1865; 104 L Ed 2d 443 (1989). Instead, the excessive force claim should have been analyzed under an objective reasonableness standard. In our view, the trial court improperly collapsed the excessive force and the assault and battery claims, despite the fact that they involve distinct harms, Garner v Michigan State Univ, 185 Mich App 750, 764; 462 NW2d 832 (1990), and failed in its duty to provide clear guidance with regard to the governing law. This failure is manifestly unjust, regardless of whether defendant specifically objected.

2 Consistent with Rushing v Wayne Co, 436 Mich 247, 268; 462 NW2d 23 (1990), our duty is to determine whether a reasonable jury could have concluded that a deliberate indifference standard is satisfied on the record. In our opinion, a reasonable jury could not find deliberately indifferent municipal misconduct.