Johnson v. Wayne County

Wayne Johnson v JOHNSON WAYNE COUNTY April 6, 1995, Docket No. 169802. Submitted at Detroit. Decided September 1, 1995, appeal sought. at 9:05 a.m. Leave to Patsy brought Wayne an action in the Circuit Court against Wayne County others, seeking damages for emo- injury allegedly tional suffered as a result of her confinement holding in a courthouse County cell and a cell in the with jury plaintiff Jail the criminal defendant on whose the sitting plaintiff had been contempt before the was found in of appearing court for not at the trail and was sentenced to three court, days jail. Talbot, J., granted The summary Michael J. disposition regard for the defendants with to all the counts of plaintiff’s complaint. plaintiff appealed. The Appeals The Court of held: Although plaintiff’s regarding 1. alleged claim denial equal protection of against under Const 2 is one § only, plaintiff that, the individual by defendants must show Wayne County’s policy, of Wayne County virtue custom or deprived right. Where, here, plain- her of a constitutional as alleges against governmental tiff employ- constitutional tort only, ees must show that the constitutional by policy violation occurred virtue of a custom or governmental employees carrying plaintiff’s out. The equal protection provide claim must fail because she failed to any that, by evidence policy, virtue of a custom or the defen- deprived equal protection. dants her of policy The defendants’ placing prisoners together all in the same cell unless possibility physical deprive there is a known harm did not equal protection. properly The trial court granted summary disposition regard equal protec- to the tion claim. that, 2. failed show virtue of a custom or References 2d, Fright, Shock, 4, 5, Am Jur and Mental Disturbance §§ Municipal, School, County, 184, 190; Liability and State Tort §§ 190, 192; Penal and Correctional Institutions Public §§ Officers Employees 366. § Punishment; See ALR Index under Cruel and Unusual Emotional Injury; Prisoners; Employees. Prisons and Public Officers and punishment policy, inflicted cruel or unusual the defendants her. every injury prisoner 3. Not suffered one at the hands prison liability into offi- another translates constitutional prison Eighth A cials. official violates the Amendment requirements only the federal constitution when two are met: serious, deprivation alleged objectively sufficiently must be and prison culpable sufficiently the state of official must have a concerning requirement, mind. in cases Under the second conditions, prison showing must be a the state of there prison mind of that of indifference to the official was deliberate Here, plaintiff safety. inmate health or the failed to make a showing plaintiff’s sufficient of deliberate indifference to the safety. plaintiff The did not show either that the defendant deputies disregarded or a risk of were aware of a risk of harm deputies they harm of aware or the had which knowledge danger consciously disregarded of a known and it. properly granted summary disposition The trial court for respect regarding with to the claim unu- defendants cruel or punishment. sual properly granted summary disposition 4. trial with The court regard process plaintiff to the substantive due claim. The failed defendants, present to of a custom evidence that virtue policy, deprived process. just her of due The "fair and language treatment” of Const 17 refers to such § investiga- legislative treatment in the course of and executive hearings, tions and neither of which is involved here. present Wayne County 5. The failed to evidence that proper policy system classifying did not maintain a for and segregating prisoners prisoners certain from other known to particular pose prisoners. threat of harm to those The trial County properly granted summary disposition Wayne court regard plaintiff’s with tort claim. constitutional granting summary disposition 6. The trial court erred in with regard to the claim of intentional infliction of emotional dis- jurors honestly tress because reasonable could reach different regard conclusions with to whether the defendants’ conduct gross negligence. amounts to Reasonable minds could differ regarding whether the actions as defendants’ were so reckless to demonstrate a lack of for whether an substantial concern evidence, injury plaintiff presented would result. The sufficient fact, if believed a rational trier of to show that the defen- grossly negligent they in dants acted manner so that are not by governmental immunity. covered plaintiff presented 7. The sufficient evidence to show that the proximate injury. actions of the defendants were a cause of her plaintiff presented 8. Because the evidence to show that the may gross negligence, defendants’ conduct constitutes she The has sufficient maintain her tort claim. support facts to her claim of intentional infliction of emotional alleged by The facts are sufficient to show distress. defendants, outrageous extreme and conduct behalf manner, they and that at least acted a reckless plaintiffs injury. trial court defendants’ actions caused the granting summary disposition regard erred in with to the claim part of intentional infliction of emotional distress. That (cid:127) and the matter must be re- court’s order must be reversed proceedings regarding that issue. manded for further part, part, Affirmed in reversed in and remanded. J., concurring, separately Kolenda, wrote to stress D.C. part inconsistency no m and

there is between the holdings parts opinion by Judge i and n of the Jansen part analysis parts because hi is based on traditional tort i unique and n involve involve constitutional torts that are Accordingly, applicable standards not to common-law torts. prove that a set of facts not the former not mean that does does prove cannot the latter. Cavanagh, P.J., dissenting Judge regard part in of opinion, that the stated evidence was sufficient Jansen’s support plaintiffs gross negligence and inten- claims of tional infliction of emotional distress. The did not allege sufficient facts to sustain her claim of intentional inflic- distress, tion of emotional and the defendants’ conduct was outrageous. extreme or The case should be affirmed its entirety. Employees. — — 1. Constitutional Law Torts Governmental plaintiff alleges against governmen- Where a a constitutional tort employees only, tal must show that the constitu- policy that tional violation occurred virtue of a custom or governmental employees carrying out. — —(cid:127) 2. Prisons and Prisoners Constitutional Law Cruel and — Prison Conditions. Unusual Punishment prohibition prison Eighth A Amendment’s official violates require- against punishment only two cruel and unusual when objectively deprivation must be ments are met: serious, sufficiently prison and the official must have a suffi- mind; requirement, ciently culpable under the first state of showing prevent requires a claim on a failure to harm based posing prisoner conditions is incarcerated under harm; requirement, substantial risk of under the second Opinion by Jansen, conditions, involving prison showing cases there must be a prison the state of mind of the official was that of deliberate safety; indifference to inmate health or deliberate indifference person disregards arises when a a risk of harm of which that (US VIII). person Const, is aware Am Agents — — — — 3. Constitutional Law Torts State of State Liability. Liability imposed should be on the state as a result of action agents only of the state that amounts to a constitutional tort agent implements where the action of a state or executes a statement, ordinance, policy regulation, officially or decision adopted promulgated by body’s governmen- officers or though tal custom even such a custom has not received formal approval through body’s decision-making official channels. — — 4. Torts Intentional Infliction of Emotional Distress Ele- ments. elements tort of intentional infliction of emotional conduct, outrageous distress are extreme and intent or reckless- ness, causation, distress; liability and severe emotional for such only complained a claim has been found where the conduct character, outrageous degree, has been so and so extreme in go beyond possible decency, as to all bounds of and to be regarded utterly as atrocious and intolerable in a civilized community. Goodman, Eden, Millender & Bedrosian Mi- (by chael J. Haddad and William H. Goodman), for the plaintiff. Granholm,

Jennifer M. Wayne County Corpora- Pearson, Counsel, tion and W. Steven Assistant Corporation Counsel, for the defendants. Cavanagh, P.J.,

Before: and Jansen and D. C. Kolenda,* JJ.

Jansen, J. Plaintiff appeals as of right from an 29, 1993, October order of the Wayne Circuit Court granting 2.116(C) summary disposition under MCR (7) (10) and to defendants with respect to all counts

* judge, sitting Appeals Circuit by assignment. on the Court of Jansen, plaintiffs complaint. part, in in We affirm reverse proceedings. part, in for further remand Patsy Plaintiff called to serve as a Johnson was juror for the criminal trial of Tamara Marie Mar- leading shall, men into who was accused of three City in of Detroit where crack house tortured and people. style, killed, in execution six The case was dubbed the "St. Aubin Street Massa- cre.” sitting through Sep- trial in

After two weeks of plaintiff appear 8:45 a.m. tember failed to at September appear 13, 1990. Plaintiff did not hearing because she a friend of the court attended concerning Upon plaintiffs her children. arrival at court, the friend of the had called from the courtroom of she was told that someone Judge Tennen matter). (who presiding the criminal was over attending Plaintiff then went home instead of meeting. plaintiff preparing go While was Judge police house, Tennen’s courtroom from her picked up, brought by, officers came her to Judge Tennen’s courtroom. plaintiff session, arrived, in

When the trial was in the court so she sat back room approximately Judge At 1:26 one hour. Ten- p.m., jury spoke plaintiff. nen excused Judge explained Tennen had she delayed proceeding. Plaintiff was found contempt days in of court and sentenced to three Wayne County discharged Jail. She was as juror from the criminal case. holding cell.

Plaintiff was taken to a When opened cell, officer the door of the Plaintiff saw Tamara Marshall alone the cell. placed in the with Marshall. Marshall was cell Patsy if was Johnson because asked she hap- attorney had told her what had Marshall’s pened. plaintiff questions regard- asked Marshall App Mich Opinion Jansen, J. ing jurors thinking what the other about the badgered plaintiff pacing case. Marshall while around the cell. Plaintiff stated that she was as- tonished, stunned, and scared while in the cell with Marshall. Plaintiff might believed Marshall bodily

inflict harm on her. Deputy looking plaintiff sheriffs at and Marshall through allegedly the window of the cell door laughing. crying started Plaintiff was and felt intimidated. Plaintiff was in the cell with Marshall deputies away for one hour before took Marshall plaintiff and left However, alone the cell. Mar- cell, again placed plaintiff shall was in the deputies another hour. The then came and es- plaintiff Wayne County corted and Marshall to the Jail. Plaintiff and Marshall were handcuffed to- gether during the move. jail, plaintiff

When reached the and Mar- placed shall were in a cell with seven other telephone women. Marshall used the cell, in the plaintiff’s mentioned name, and told the other party serving jury. had been on her Approximately forty later, minutes Marshall was jail removed from the cell. being jail September

After released from 17, hospitalized 1990, Hospi- was at St. John tal because of a mental breakdown. Over the next year, plaintiff by psychologists was treated psychiatrists psychological injuries. for her On August injuries 13, 1992, filed suit for emotional assertedly during that she had sustained court, her confinement with Marshall. The trial ultimately granted summary disposition for defen- regard plaintiff’s dants with to all counts in com- plaint.

i ruling We review de novo the trial court’s re- Jansen, garding summary disposition. a motion for Wie- ringa Network, 142, v Blue Care granted 144; 523 NW2d 872 The trial court respect plaintiffs summary disposition with Michigan Constitution, Const claims under (cruel (equal protection), § § 2 (due process). punishment), § and 17 These unusual only relate to the individual defendants and claims Wayne County. not to defendant Although entirely record, it is not clear from the granted appears summary it the trial court disposition regarding these claims under MCR 2.116(0(10). 2.116(0(10) MCR tests the factual plaintiffs underlying basis a claim. Radtke v Ever- (1993). ett, 368, 374; 442 Mich 501 155 NW2d MCR 2.116(0(10) permits summary disposition when "[e]xcept damages, of as to the amount there is no genuine any fact, issue as to material and the moving party judgment partial to or is entitled reviewing judgment as a matter of law.” A court pleadings, such a motion must consider the affida- depositions, any vits, admissions, and other docu- mentary opposing party. in of evidence favor 2.116(G)(5); supra. opposing Radtke, MCR party upon allegations may not rest mere or deni- pleadings by must, als in the but affidavit or other documentary specific evidence, set forth facts showing genuine a there is issue for trial. The court must not make factual 2.116(G)(4). MCR

findings weigh deciding credibility a motion Manning summary disposition. Park, v Hazel App 685, 689; 509 874 202 Mich NW2d light Thus, of case in a we examine the facts this plaintiff. p Id., 690. most favorable

A First, claims that the trial court erred Opinion by Jansen, granting disposition regard summary alleging equal protection her claim denial of under 1963, 1, § Const 2. art Dep’t Health, 540,

In Smith Public 428 Mich (1987), 544; 410 NW2d aff'd sub nom vWill Michigan Dep’t Police, 58; S State US (1989), Ct 105 L Ed 2d 45 in a memorandum opinion, majority justices a opinion damages against a claim for the state arising from a violation the state of Michi gan may recognized appropriate Constitution be justices liability cases. Two of the stated that imposed only should be on the state where agent implements action of the state or executes a regulation, policy statement, ordinance, or decision officially adopted promulgated by body’s governmental pp Id., officers or custom. 642-643. justices However, two other would limit liabil ity only those situations where the constitutional violation occurred virtue governmental policy. p Id., custom or 658.

Recently, plaintiffs this Court held that claim procedural under due city depended upon § Const 17 that her process rights by were violated the defendant showing by that,

a of a virtue policy, deprived city custom or her her of property rights process without due of law. Marlin (After Remand), App v Detroit 335, 338; 205 Mich (1994). light 517 Thus, Marlin, NW2d of we plaintiff by must if that, determine showed virtue Wayne County’s policy, of defendant custom or Wayne right. deprived County her a constitutional

Although against this claim is one the individ- only, require- ual defendants we believe that policy ment that a a or custom be shown to sustain is, constitutional tort must also be met. That plaintiff alleges where a tort constitutional v by Jansen, plaintiff employees only, against governmental violation constitutional that the must show policy that a custom or virtue of occurred governmental carrying employees out. See J.). supra, pp Smith, 642-643 (Boyle, equal pro- argues Plaintiff that she was denied singled to in- out her defendants tection because protection equal jure claim Plaintiff’s and taunt. any provide to she has failed fail because must policy, custom or that, virtue of a evidence equal protection. deprived Plain- her of defendants general presented it that was evidence tiff has deputy procedure policy general to sheriffs of in the same together prisoners place all physi- possibility of a known unless there was cell infra). (see However, find no ii, we harm issue cal equal plaintiff deprived policy that the evidence protection. person requires "[n]o 1, § 2 Const equal protection shall the laws.” be denied legislation any has not identified Plaintiff Dep’t against Doe v her. See discriminates 650, 662; 487 NW2d Services, 439 Mich Social (1992); Thompson Merritt, Thus, has 424-425; 481 NW2d present any denied that she was evidence failed equal protection equal protection An of the law. alleges unavailing where a claim is governmental (from "singled employees out” injure identify) group does taunt. grant-

Accordingly, not err in did the trial court disposition re- ing summary for defendants protection equal gard claim.

B argues erred trial court Next, 152 213 143 Opinion by Jansen, granting summary disposition regarding punishment cruel or claim Const unusual under 1963, 1, § 16. that,

We do not believe that has shown policy, virtue of custom or in- defendants punishment flicted cruel or unusual though plaintiff Al- on her. presented has was evidence that it general policy general procedure deputy or place prisoners together all sheriffs to same possibility cell unless there a known was physical harm, we do not believe that she has presented sufficient evidence the actions of pun- the defendants amounted to cruel or unusual ishment. Michigan prohibits

The Constitution cruel punishment Eighth unusual while the Amendment prohibits only of the federal constitution those punishments that are both cruel and unusual. Our Supreme Court has noted that this textual differ- appear ence does not to be accidental or inadver- People Bullock, tent. 30; 440 Mich 485 NW2d (1992). determining In whether the actions defendants in this case led to cruel or unusual punishment, guidance look we to federal cases concerning Eighth Amendment. York v Detroit (After Remand), 744, 757; 438 Mich NW2d (1991). prison

A official’s deliberate indifference to a substantial Eighth of harm risk to an inmate violates prohibition against

Amendment’s cruel and punishment. unusual quires Deliberate indifference re- showing subjectively the official was Brennan, aware of the risk. —; Farmer v US S Ct 128 L Ed 2d Eighth imposes prison Amendment duties on offi- provide cials to confinement, humane conditions of adequate ensure that inmates and medical food, shelter, receive care, and take reasonable measures to by Opinion Jansen, J. safety guarantee Further, of the inmates. the prisoners protect duty prison have a officials prisoners. Id., the hands of other from violence at p 822. prisoner every injury at the one

Not suffered translates into constitutional of another hands liability prison prison A official vio- for officials. only Eighth re- when two the Amendment lates quirements (1) deprivation met: the are (2) objectively sufficiently serious, and the must be prison culpable sufficiently must have a official require- p Id., the first of mind. 823. Under state ment, prevent failure to harm a claim based on a prisoner showing requires the is incarcer- a posing of under a risk conditions substantial ated harm. Under prison- requirement, the second showing cases, a there must be conditions prison official was that state mind safety. to inmate health deliberate indifference Id. Supreme Farmer, Court

In the United States subjective indifference reck- defined deliberate as In as in the criminal law. other lessness words, used person a arises when deliberate indifference disregards person risk of of which that is a harm pp Id., 825-827. aware. plaintiff brought York,

In a claim under showing requiring a that a munici- USC thus policy pal custom or caused violation of rights. Supreme Our decedent’s constitutional alleges policy held that where a Court police inadequate training, inaction, policy such as liability may as under serve a basis only policy if the evidenced a deliberate § right prisoner. York, indifference pp Supreme supra, Court defined 755-756. The contemplating knowl- as deliberate indifference edge, constructive, disre- and a conscious actual or Jansen,

gard danger. negligence of a known Mere will not p Id., amount to 757. deliberate indifference. present then, case, In the we consider whether deprivation alleged objectively sufficiently was deputies deliberately serious and whether the plaintiff’s safety. supra. Farmer, indifferent We find that failed to make a sufficient show- ing of deliberate indifference. Plaintiff testified at deposition placed that she was in a deputies assertedly cell with Marshall. laughed at her and made fun of her situation. deputies However, never informed the safety deputies that she feared for her and the through looked in the window of the door from Deputy time time. Mark Javor testified that if problem prisoners, he that knew existed between separate he would them. Javor did not see a problem between and Marshall. explained by Supreme

As the United States per- Court, deliberate indifference occurs when a disregards person son a risk of harm of that which supra. Farmer, is aware. There is no evidence that any deputies placing plaintiff in involved watching the cell and her were aware of a risk of disregarded harm or were aware. a risk of harm which any

Further, has not shown knowledge disregard and conscious of a known danger. supra. York, Therefore, are we unable to deputies conclude that the actions of the consti- punishment. tuted cruel or unusual Accordingly, grant- court trial did not err in ing summary disposition to defendants with re- spect punishment to the cruel or unusual claim.

c plaintiff argues Next, that court trial erred granting summary disposition regarding her Jansen, J. argues process claim. due She substantive defendants right free from de- violated her be right just process due and the to fair and nial 1, § art 17. under Const treatment process plaintiffs due claim We conclude the due also Plaintiff has misconstrued must fail. right Michigan process Constitution. under person provides 1, § "[n]o Const deprived liberty property, life, . . . or be shall process It of law.” further states without due corporations "right individuals, firms, of all just voluntary to fair and treat- associations and ment legislative and executive the course of investigations hearings not in- shall be fringed.” presented no that defen-

Plaintiff has evidence deprived policy, dants, virtue of custom just process. Moreover, the treat- due "fair of ment” language to such treatment in the refers legislative investigations course and executive implicate legisla- hearings. This not case does hearings. investigations and tive or executive grant- Accordingly, did err in trial court disposition regarding ing summary plaintiffs to defendants process due claim.

ii argues in Plaintiff next that trial court erred summary disposition Wayne granting to defendant County regarding It tort claim. constitutional County plaintiffs contention that failed is proper policy system and for classi- to maintain a prisoner pris- segregating fying a from other pose particular threat harm oners known prisoner. that identify

First, has under which failed Michigan Constitution this claim is section 156 143 213 Mich Opinion by Jansen, J.

based, A must first establish the constitu- damage remedy violation itself tional before Michigan injury under Constitution can be J.); recognized. supra, p Smith, Marlin, 648 (Boyle, p supra, Although plaintiff Rushing 338. relies on (1990), Wayne Co, 436 Mich in NW2d support position, of her do not we believe that Rushing controls because case involved a brought claim present under 1983. USC Plaintiff brought

case has her claim under 42 USC 1983. complaint, plaintiff rights

In her reiterates (equal 1, § enumerated under Const (cruel protection), punishment), § 16 or unusual (due process). However, 17§ has not policy, that, shown virtue of a custom or deprived county rights. her of these constitutional Boyle explained liability Smith, In Justice imposed only should be on the state where the agent implements action a state or executes a policy officially adopted regulation, statement, ordinance, or decision promulgated by body’s governmental though officers or custom even such approval a custom has not received formal through body’s decision-making official chan- J.). supra, p Smith, nels. (Boyle, deposition testimony

Plaintiff relies on the Deputy Mark Javor. was Javor asked whether there was a concern in Marshall, his mind that being first-degree who was tried for five counts of plaintiff, murder, was in the same cell with who juror was a former on Marshall’s case. Javor re- sponded plaintiff, discharged who was as a juror contempt-, pris- when she held was was a response. oner and this resulted a certain Javor stated: jury,

Ms. Johnson is off the so it would be one Wayne Co Jansen, J. thing going jury, was to be on the but if she still case, jury. Limited facilities off the off she’s like I just general policy, our manpower, and said, and up jurors contempt before for we have locked court, contempt, they’re found in and once of case, put them in the with the they’re off the back men, that are even if it’s the defendants other general procedure. back there. Just only stated that time Javor also was anyone would isolate when deputy sheriffs physical of harm. possibility there a known was there was a Javor’s indicates testimony whenever segregating prisoners certain policy if physical harm possibility there a known was Thus, in the same cell. prisoners placed other plaintiff’s allegation contradicts directly this failed to maintain a County complaint Wayne segre- for and classifying proper policy system prisoners prisoners from other gating certain particular a threat of harm those pose known to prisoners. evi- present has failed to

Accordingly, not main- Wayne County did dence that defendant classifying proper system policy tain prisoners from other segregating prisoners certain threat harm. The pose particular known court, therefore, did err sum- granting trial regarding County mary disposition tort claim. constitutional plaintiffs

hi court erred Last, the trial argues regard to disposition with summary granting emotional infliction of claim of intentional reverse the agree plaintiff and We distress.' this claim. disposition regarding summary grant disposition summary granted The trial court Opinion by Jansen, 2.116(C)(7) respect under MCR with to this claim. 2.116(C)(7) MCR tests is whether claim barred (here, immunity granted by govern- because of law 2.116(C) immunity). A under mental motion MCR (7), may depositions, supported by affidavits, be documentary admissions, or other evidence. MCR 2.116(G)(3). If such material is submitted to the 2.116(G)(5). court, it must MCR be considered. pursuant immunity Governmental to MCL 3.996(107) 691.1407; an MSA is affirmative defense requires and party’s the defense be stated in the

responsive pleading. 2.111(F)(3)(a); MCR Dep’t Corrections, v Wade 439 Mich (1992). 483 for In NW2d order to survive a motion summary disposition, allege the must justifying application exception gov- facts of an to immunity. ernmental Id. following exception

Plaintiff relies to governmental immunity: Except section, provided as otherwise in this regard

without nature of the discretionary or ministerial question, conduct in . . . each em- ployee governmental of a agency . . . shall be immune from or liability injuries persons tort damages property . . caused . em- ployee . . . while if all of the employment course of or ... following service are met: (a) The . . employee . acting ... is or reason- ably of his or or acting believes he she is scope within the authority. (b) governmental agency engaged is in the discharge exercise or governmental of a function. (c) The . . employee’s . . . . conduct does not gross negligence amount to cause proximate is the injury damage. As used in this subdivision, "gross negligence” means conduct so reckless as to demonstrate a substantial lack of concern for whether injury an results. [MCL 691.1407(2); 3.996(107)(2).] MSA Wayne v Opinion by Jansen, J. Only is issue here. We the third element at summary disposition is of this claim believe jurors honestly precluded could because reasonable regard to whether reach different conclusions negligence. gross amounts to defendants’ conduct App 79, Vermilya Dunham, 83; 489 195 Mich present deputy case, the In the NW2d holding placed plaintiff in a cell sheriffs involved juror had been a on Mar Plaintiff with Marshall. was and Marshall case for two weeks shall’s first-degree charged murder in counts of with five City publicized highly Detroit. case Marshall on was in the cell with Plaintiff separate handcuffed two together occasions County Jail taken to jail they again placed in the same cell. where were plaintiff cell, in the stated that While deputy laughed window and looked inside the sheriffs pointed at her. regard with to minds could differ Reasonable were so the actions of defendants whether reckless lack of as to substantial demonstrate injury Thus, for an resulted. concern whether plaintiff presented evidence, if be- has sufficient by fact, of to lieved a rational trier show negligent grossly in a manner so defendants acted governmental immu- are not covered nity. plaintiff presented

Further, has sufficient evi- show that the actions of defendants were dence to proximate injury. Asch, cause of her Dedes "a” 99, 118; 521 The trial 446 Mich NW2d 488 could not ruled the defendants’ actions court proximate plaintiff’s injury sole cause of be the sentencing plain- Judge action of Tennen’s because proximate injury. jail her As tiff was a cause of to Judge plaintiff notes, of sentenc- Tennen’s action contempt ing days’ imprisonment to three her App Jansen, question Rather, is court issue here. placing plaintiff is whether acts defendants’ laughing the same cell with Marshall plaintiff then at plaintiff’s injury. cause A rea- juror sonable could find that the actions of the proximate plaintiff’s defendants were a cause of injury placed deputy where sheriffs the same mony cell Marshall and there is testi- prison- separating there is a means of deputies danger ers if the feel there is a from putting people together. certain

Accordingly, plaintiff presented has sufficient evidence to show that the defendants’ conduct was grossly negligent proximate and a cause of her injury. governmen- Defendants are not entitled to immunity tal as a matter of law under MCR 2.116(C)(7). jury will have determine alleged by plaintiff whether the conduct as is actually grossly negligent and whether the con- proximate plaintiff’s injury. duct was a cause presented Because has evidence show gross negli that defendants’ conduct constitutes gence, may she claim, maintain her tort which in this case is intentional infliction of emotional dis presented tress. Once has sufficient facts justifying application gross negligence ex ception governmental immunity, may she then p supra, Wade, maintain tort claim. See Kleiman, Patterson v 191, 192; 199 Mich (1993), 761 NW2d as aff'd modified 447 429; Mich (1994). 526 NW2d 879 Thus, we must next consider whether alleged has sufficient facts to meet the elements of the tort of intentional infliction of emotional dis- tress.1 This claim would be decided under MCR 1Although the trial court dismissed this tort claim on the basis of 2.116(C)(7) only, finding by govern- MCR the claim was barred Wayne v Jansen, J. 2.116(0(10). alleged has suffi- We believe that she such a motion. facts to withstand cient emo- infliction of The elements of intentional (1) outrageous extreme and tional distress are: (3) (2) causation; recklessness; conduct; intent or (4) v Detroit distress. Duran and severe emotional App 622, 629-630; 504 NW2d News, Inc, 200 Mich (1993). Liability claim has been for such a complained only of has conduct found where the outrageous character, in and so extreme been so possible degree, go beyond bounds all as to regarded, decency, ut- as atrocious and to be community. terly Line- in a civilized intolerable Corp, Michigan baugh v Sheraton (1993). 342; 497 NW2d find trier of fact could that a rational We believe outrageous was so that defendants’ conduct goes degree that it and so extreme character decency beyond in a civi- of common all bounds society. that she was Plaintiff has lized placed with Marshall in the same cell juror Marshall’s case. had after been execution-style deaths of This case concerned highly publicized people was a in Detroit and six case. Marshall about questions assertedly asked badgered intimidated her. the case and through deputies the window looked laughing. in the cell Plaintiff remained started Marshall was hour before Marshall for one brought deputies again However, removed. plaintiff where to the cell with Marshall back They together again hour. for one remained together to the and taken handcuffed then placed County and Marshall were Plaintiff Jail. properly argument immunity, before this is we believe mental us. This the evidence is before by plaintiff. appeal argument All and on was raised below argument review de an involves us and such Thus, properly Peterman argument this Court. is before this novo. Resources, 521 NW2d Dep’t 446 Mich Natural D. J. by Opinion Kolenda, C. together approximately in the same cell with jail, being seven women. After from other released hospitalized result of had to be as a a testimony Further, mental breakdown. there is deputies they policy sepa- from rating have prisoners possibility where there is a known physical harm. alleged by plaintiff These facts as are sufficient outrageous to show extreme and of conduct behalf defendants, at least acted in a reckless plain- manner, and that defendants’ actions caused injury. jury Thus, a tiff’s will have to determine actually whether defendants are tional infliction of emotional distress. the trial court’s liable for inten-

Accordingly, grant summary disposition with respect to the claim of intentional infliction emotional is distress reversed. part, part,

Affirmed reversed in and re- proceedings. manded for further Jurisdiction not is retained. (concurring). agree

D. C. com- Kolenda, I pletely Judge opinion and have Jansen’s signed jury easily it without reservation. A could locking conclude mass murderer in a cell with ways then, that were plainly plaintiff, laughing terror, visible to at her happened plaintiff, if thereby as claimed communicating mercy to her that she was at the utterly murderer, of a was behavior that is intoler- community. separately able in a civilized I write respond complaint to the dissent’s that there is an inconsistency between that and the other holdings Judge opinion. There not. is Jansen’s opinion Part hi of the is based on traditional tort analysis. Parts i and ii involve constitutional torts unique applica- that are and involve not standards ble to common-law torts. Far more needs to be Cavanagh, P.J. Accordingly, proved that a to establish former. prove former not does of facts does set prove the latter. it cannot mean that (concurring part dissent- in and P.J. Cavanagh, parts ing part). i and n of the in I concur in disagree opinion. majority However, I the part majority’s in m. I resolution of issues that all that it to conclude believe is inconsistent plaintiffs claims, under the same factual other of situation, summary purposes supportable of

were not gross disposition, plaintiffs of but claims negligence of emotional and intentional infliction distress were. plaintiffs majority finds claim of an

Eighth Amendment violation cannot stand because deliberately not indifferent to a defendants were plaintiff. to Deliberate risk of harm substantial indifference arises when a disregards person a risk person Farmer v harm of which that is aware. of Brennan, —; Ct 128 L Ed 2d 114 S US (1994). majority However, also 825-827 plaintiff pre- facts, finds, under the same application justifying of sufficient evidence sented governmental gross exception negligence to immunity. conduct I fail to see how defendants’ to demonstrate a substan- could be so reckless as injury for whether an resulted tial lack of concern (as majority analysis in of the concludes its latter), yet deliberately a be indifferent not (as major- plaintiff risk of harm to substantial ity analysis in its concludes former).1_ argues majori concurring opinion, Judge In Kolenda his ty’s not because constitu of these issues is inconsistent resolution applicable to common-law torts. involve not tional torts standards However, generally torts and common-law torts of constitutional discussions See, e.g., negligence than intentional torts. focus rather critique Burnham, Separating A and common-law torts: constitutional theory duty, L Rev 515 proposed 73 Minn a constitutional App Mich Cavanagh, P.J. plaintiff

Moreover, I has do believe that sufficient facts to sustain claim infliction of emotional Plain- intentional distress. tiff has not shown defendants’ conduct was outrageous character, so "so extreme in degree, go beyond possible all as bounds decency, regarded and to be as atrocious and ut- terly community.” intolerable in civilized Line- baugh Michigan Corp, v Sheraton 335, 342; 497 NW2d 585 have Defendants policy segregating prisoners certain whenever possibility there is a known of harm if other prisoners placed are same cell. Plaintiff has presented disregarded no evidence that defendants by placing possibility a known of harm the same cell as Tamara Marshall and later hand- cuffing together. fact, the two In does not allege attempted physically that Marshall ever Moreover, assault her. defendants never informed safety, that she feared for her and the deputies periodically looked into the cell that facts, shared with Marshall. Under these I cannot that find conduct defendants’ was extreme outrageous. majority’s

Furthermore, I believe that deci- places sion an defendants, unreasonable burden jail system who must maintain a facilities and with limited personnel. opin- majority Under the any prisoner allege ion, could intentional infliction being merely of emotional distress confined for briefly a time in the same cell with or handcuffed person regardless a crime, accused of a heinous any physical of the lack of evidence that harm any or, indeed, would result there would be attempt physical at harm._ (1989); Whitman, responsibility torts, Government for constitutional any case, 85 Mich L exception gross negligence R 248-254 In governmental immunity is not a common-law rule but rather creature of statute. Opinion by Cavanagh, P.J. findings regard majority’s I dissent with plain- immunity governmental bar does not infliction of emotional of intentional tiff’s claim distress and to plaintiff presented facts sufficient support affirm this case claim. I would entirety. its

Case Details

Case Name: Johnson v. Wayne County

Court Name: Michigan Court of Appeals

Date Published: Sep 1, 1995

Citation: 540 N.W.2d 66

Docket Number: Docket 169802

Court Abbreviation: Mich. Ct. App.