*1 Solomon Shuell SHUELL SOLOMON v 5, 1987, August Docket No. 90688. Submitted at Detroit. Decided 1, 1988. February appeal applied Leave to for. Solomon, personal representative Charlotte as estate Joseph Solomon, deceased, brought wrongful death action in Wayne against Shuell, Hall, Circuit Court John Michael Rich- Department. alleged Nixon ard and the Detroit Police Plaintiff by that decedent was shot death to Shuell defendant while son, Solomon, attempting the decedent was to rescue his Alvin defendants, from the individual all of whom were Detroit they officers civilian dress when arrested Alvin Solomon operation. court, the course of an undercover The trial Marvin J., Stempien, dismissing R. entered orders defendant Nixon granting from the suit and directed verdicts favor of the police department jury subsequently and defendant Hall. A damages returned a verdict in favor of and assessed $100,000, $20,000, the amount of but reduced the award to finding decedent, appeared that the who had arrest scene hands, eighty percent comparatively in his negligent. alia, appealed, claiming, Plaintiff inter that the trial instructing jury court erred when on the rescue doctrine admitting police reports and in certain into evidence. Appeals The Court of held: person goes 1. A who to the rescue of another he whom reasonably peril negligence to believes be in caused of a person may against third maintain an action the third injuries scope case, sustained In the rescue. this instructing jury the trial court erred in the rescue applied only if it found Alvin was in imminent _doctrine References 2d, Appeal seq. Am Jur and Error 810 et §§ 2d, Negligence 227-229, seq. Am Jur 426 et §§ 2d, 623, Am Jur Trial 922. §§ Application comparative negligence gross on action based recklessness, 946, or the like. 10 ALR4th 1.§ development comparative negligence having Modern doctrine applicability negligence generally. actions 78 ALR3d 339. contributory negligence Rescue doctrine: in suit person. rescuer ALR3d rescued 558. inquiry peril concerned the relevant since serious condi- Alvin Solomon’s of the decedent as to belief reasonable contributory negligence Additionally, and a tion. references recklessly attempt requirement have been that the rescue *2 compar- light improper the that rashly in fact or made were negligence, contributory now the and not ative However, required Michigan. is not since the rule reversal jury fairly presented to the a when read as whole instructions applicable parties the case law. the theories of the ruling that its discretion in 2. trial court did not abuse The pointed indicating reports police the decedent had certain Shuell were admissible a and fired a shot at defendant exception hearsay to the rule. business records under the merit. 3. claims of error are without Defendant’s other Affirmed. Shepherd Shepherd, P.J., Judge hold that would dissented. police ruling challenged the the trial court erred exception reports under records were the business admissible reports’ hearsay rule untrustworthiness the in view the police misrepresentation offi- when the motivation for cers, possible department with internal who were faced probable litigation reports the time the were sanctions and at made, credibility of the and the inherent and excessive Shepherd eyes Judge juror’s are taken into account. for a new would remand case trial. Negligence. Negligence Comparative — — 1. Rescues reasonably person goes whom he who to the rescue another peril to be in caused of a third believes person person may for action the third maintain an action, rescue; injuries scope sustained in the such inquire reasonably prudent must trier of fact first whether plaintiff did the same or would have acted as under circumstances; plaintiff it is that the did not similar if found mission, i.e., negli- reasonably carrying act out his he gent, damages percentage by the of his should be reduced negligence. Jury— Appeal 2. Instructions. requires giving jury reversal and of an erroneous instruction only jury’s amounts vacation of the verdict where error set the verdict in the trial that the failure to aside defect such justice. would be inconsistent substantial Appeal Jury— 3. Instructions. appeal, jury are a whole reversal is On instructions read as Solomon v Shuell Opinion of the Court required parties applicable if the theories and the fairly presented jury. law to the Appeal — 4. Evidence. ruling admissibility
A trial court’s on the of evidence will not be reversed absent an abuse of discretion. Chayet (by Harvey
Thurswell, & Weiner Chayet), plaintiff. Jenkins,
Marion R. for defendants. P.J., Before: and Hood and T. M. Shepherd, Burns,* JJ. appeals right
Hood, J. Plaintiff as of from a judgment pursuant jury entered to a verdict jury which the damages found for the and assessed jury, $100,000. however, found percent negligent eighty and defendant percent twenty negligent John Shuell in the shoot- *3 ing resulting Shuell, death of decedent in a judgment total in the amount of $20,000. 20, 1981,
On March Hall, officers Michael John Shuell, and Eichard Nixon of the Detroit Police Department watching were a house on Curtis Street Detroit. Persons in the home were sus- pects in two recent armed robberies. The officers driving police in unmarked cars and were wearing plain clothes. The officers observed a Cut- pick up home, lass automobile arrive at the two subsequently men, and leave. The driver was iden- tified Solomon, as Alvin decedent’s son. Nixon stop later saw the automobile at the home of Alvin family. passenger, Wynee and his Green, was in passenger parked seat. Nixon his car front pulled up Alvin, and Shuell behind Alvin. The * Appeals judge, sitting Appeals by Former Court of on the Court of assignment. Opinion of the Court happened
testimony as to what at trial differed him, and, "rushed” that Nixon next. Alvin testified police identifying officer, as a himself without gun against bb a the car and removed threw him grabbed him Shuell then from his waistband. dragged gun put head, him neck, and a to his the towards himself that he identify did not the rear of the car. Shuell police Alvin further testified as a officer. get yelled father, his at Green of the house with Decedent came out decedent. ground. gun gun, pointing Before dece- at shooting got porch, at Shuell started dent off stop hit. until decedent was him and did identify he did himself as Nixon testified that According police Nixon, came officer. in both hands out of the house with him. heard a in front of Nixon his arms extended shot and saw decedent’s hands recoil
as if he had and He then heard several shots fired the shot. saw decedent fall. identify did
Shuell testified that he and Nixon patting as officers. As he was themselves running down, him with Alvin he saw decedent away gun. stopped about fifteen feet a and assumed a two-handed combat Decedent stance. Shuell pull trigger. Dece- he saw decedent fired when dent died at the scene. personal representative
Plaintiff, of dece- brought wrongful estate, action dent’s this death Department, against Shuell, Police the Detroit voluntarily dismissed, Hall, Nixon was and Nixon. granted and directed verdicts were police department favor Hall. The case *4 alleged against Shuell went to trial. Plaintiff battery, a viola- assault and and Shuell right to life. Fol- tion of decedent’s constitutional jury lowing fourteen-day jury trial, was a given special jury found that verdict form. Solomon v Shuell Opinion op the Court was negligent, negligence Shuell Shuell’s proximate was a cause of decedent’s death. The negligent also found that decedent jury was in his death, own and assessed negligence decedent’s percent. The eighty jury found Shuell did not decedent, commit an and battery upon assault did the question not answer whether de- Shuell prived process. life without due $100,000. plaintiffs damages found A jury to be judgment $20,000 in the amount appeals was entered. Plaintiff as of right. appeal, plaintiff
On first claims that the trial court’s jury instruction on the rescue doctrine was gave erroneous. The trial court a modified version 13.07, instruction, SJI2d rescue doctrine which states: person goes who to the rescue of another who peril
is in imminent and serious caused negligence of contributorily someone else is not negligent, recklessly long attempt so as the rescue is not rashly or made. The court instructed the as jury follows: you find, facts, evidence,
If under the from the Alvin that peril, Solomon was imminent and serious goes who rescue of another is in peril who imminent and serious caused else, the rily recklessly of someone is not contributo-
negligent, long attempt so as the rescue is not rashly or made. instruction, Plaintiff objected arguing to this the rescue doctrine should if apply only the victim actually peril, was in even if the but only rescuer victim reasonably believed the danger. The disagreed plaintiffs court inter- that, pretation. on appeal Plaintiff states when *5 App 19 166 Mich 24 op Opinion the Court thought, house, decedent out of the decedent came in Nixon fact that Shuell and due to the cars, plain Alvin unmarked and had clothes thugs. being by Therefore, it two was assaulted Alvin’s to come to was reasonable for gun. with a defense Michigan adopted in doctrine, in first
The rescue
Brugh
Bigelow,
74; 16
668
310 Mich
NW2d
v
(1944),
plaintiff
provided
that,
comes
where the
put
danger
person
who was
the aid of another
by
plaintiff
could
the
the defendant’s
contributorily negligent
in an action
not be held
plaintiff against
injuries
for
suffered
defendant
attempt.
plaintiff
con
the rescue
When
negligence
prevailing
tributory
rule, the
(1) helped
purpose:
it
rescue
served a dual
doctrine
defen
causal connection between the
establish a
(2)
plaintiff’s
negligence
injury;
and
dant’s
it
contributory negligence.
to eliminate the absolute defense
served
Highway
v
Sweetman
State
p't
14, 26;
783
137
357 NW2d
Mich
De
(1984).
Michigan
applying
cases
the doctrine
situations where
have all
involved factual
peril.
Starks, 342
Parks v
victim was
actual
See
(1955);
Ross, 345
443;
Mich
filed suit the State De- partment negligent design of the road and improper supra, pp Sweetman, maintenance. 19- 20. that, The trial court found while the negligent going was not her rescue, to the victim’s *6 subsequent assuming act of the function of a bridge icy traffic director on an after the victim longer danger, returning was no in instead of safety vehicle, of her was unreasonable. The plaintiff seventy-five percent negli- court found the gent damages accordingly. pp and reduced her Id., plaintiff appealed, arguing compar- 27-28. The that applied ative should not have because engaged p she was in Id., plaintiff a rescue. 25. We dis- agreed. that, We held where a suffers an injury during scope rescue, of a the trier of inquire pru- reasonably fact must first whether a dent would have acted as the did under the same or similar circumstances. If it is found carrying reasonably that the rescuer did not act in negligent, mission, i.e.,
out his he was his damages percentage should be reduced negligence. pp Id., 26-27. We also held that scope plaintiff’s trial court’s definition of the unduly rescue was plaintiff restrictive. We held that a attempt remains in the course of a rescue where he or she acts under a reasonable belief endangered party’s peril p that Id., continues. plaintiff may Therefore, 28. receive the benefit of the rescue doctrine even after the victim is no longer danger, plaintiff reasonably in if be- endangered party peril. lieved that the was still in p Id., Thus, 28. in Sweetman, we eliminated the requirement that the victim had to in be actual peril plaintiff’s attempt. at the time of the rescue
Other states have held that the rescue doctrine Opinion op the Court although applicable where, there was not actu danger, plaintiff reasonably
ally
in
someone
danger.
The cases do not
believed someone to be
require
at one
there be someone who was
danger,
actually
time
as was the situation
Co, 249
Sweetman. See Eversole v Wabash R
Mo
(1913); Wolfinger
Shaw,
523;
Thus, the instruction the court in the respects. First, instant case was erroneous two jury the should not have been told that if it found from the evidence that Alvin was in imminent and peril, applies. serious have the doctrine Alvin need actually peril; question rather, been in the is reasonably whether decedent believed Alvin was danger. Second, the use of term "contributo- rily negligent” coupled requirement with a that attempt "recklessly rashly the rescue not be or misleading light made” of the fact that comparative negligence, contributory rather than Solomon Shuell v Opinion of the Court Michigan. is now the rule Refer- ences to recklessness and rashness are unneces- sary reasonably since a careful would not recklessly rashly. act and requires
However, not all
instructional
error
jury
only
reversal. A
verdict
be
should
vacated
when the error amounts
a defect in the trial
such that the failure to set aside the verdict would
justice.
be
inconsistent
substantial
Johnson
(1985).
Corbet,
304, 326; 377
NW2d 713
Jury instructions must be read as a whole and
required
reversal
parties
is not
if the
theories
applicable
pre
fairly
and
law were
jury.
sented to the
Co,
Scalabrino Grand Trunk W R
(1984),
758, 766;
NW2d 258
(1985).
reading
jury
lv den
Next, claims certain were not admissible under business records 803(6). exception hearsay rule, to the MRE reports stated that came out of the house pointed Shuell, Shuell, with his shot at they that Nixon told decedent officers. Plaintiff claims these were inadmissible *8 they inherently untrustworthy because were be- they by cause the in- made officers App Mich 19 166 28 by Shepherd, P.J. Dissent they knew faced investigation in the who volved A trial court’s possible liability. civil and criminal will not be admissibility evidence ruling on v of discretion. Hadley absent abuse reversed an Co, 319, 328; 372 Tool App NW2d Trio 143 Mich (1985). court did not We find that trial 537 Peo- admitting reports. its discretion abuse Miller, 210, 224; 558 ple 276 NW2d App (1981). (1979), on 411 Mich grounds rev’d other the trial court erred Plaintiff also claims gun was unre- admitting evidence that decedent’s However, transcript reveals that de- gistered. spouse merely fendant’s counsel asked decedent’s was to registered, decedent’s which whether "I prejudice know.” This did not replied: she don’t the court Plaintiff also claims that erred plaintiff. involving an admitting evidence of altercation Alvin and another decedent’s which family, felonious member were convicted of assault. family value According plaintiff, any probative was outweighed prejudicial effect of severely was "at strife suggesting family decedent’s itself,” crimi- family and that members were evidence; Plaintiff to this there- object nals. did not Dearborn, Bajis fore, we do reach issue. 533, 536; (1986), 151 Mich lv NW2d (1986). Even if this issue den preserved, find no of discretion properly we abuse in the trial court’s decision admit evidence impeachment. Affirmed. Burns, J.,
T. M. concurred. Shepherd, (dissenting). I dis- respectfully P.J. police' reports sent. The decides that majority defendants, made certain of the individual which corroborate their versions essentially *9 29 Solomon v Shuell by Shepherd, P.J. Dissent facts, 803(6), were admissible under MRE the busi- exception ness records to the hearsay rule. The trial majority rules that court "did not abuse in admitting its discretion the reports.” prohibits MRE hearsay except provided 802 as 2.613(A) under the evidentiary pro- rules. MCR vides "an error in the admission ... of evidence ... is not for . . . grounds disturbing a judgment or order unless refusal to take appears this action to the court justice.” inconsistent with substantial CJS, is in general This accord with 5A rule. (error Error, 1727, Appeal & 999 p committed § admitting or hearsay evidence not may may be reversal, grounds upon depending whether such error is prejudicial). 803(6) provides:
MRE
(6)
regularly
activity.
Records of
conducted
memorandum,
record,
report,
compilation,
or data
form,
acts,
any
transactions, occurrences,
or
events, made
or
time by,
near the
or from
information transmitted
aby,
with knowl-
edge, if kept in
regularly
the course of a
conducted
activity,
regular
business
if
practice
it was the
of that
dum,
activity
business
make
memoran-
record,
report,
compilation,
or data
all as
hy
shown
the testimony of the custodian or other
witness,
qualified
unless the
source
information
preparation
or the
method or
circumstances
indicate lack of trustworthiness. The term "busi-
paragraph
business,
ness” as used in this
includes
institution, association, profession, occupation, and
kind,
calling
every
whether or not conducted for
profit. [Emphasis added.]
Police
have
been
under
rejected
hearsay exception
reasons,
for several
including:
(1)
of police
inclusion
officer’s factual conclusions
although
witness,
he
eye
was not an
Derrick
Blazers,
176, 180-181;
355 Mich
(1959);
declarants
making
when
of their
business
course
lar
Co, Trunk W R
Grand
Hewitt v
statement,
(1983);
309, 322-325; 333 NW2d
motive of
(3) untrustworthiness,
specifically,
Fabricators,
Big
Inc v
declarant, Central
Industries,
Inc, Div of US
Dutchman
(1976). The federal
352, 354-355; 247 NW2d
under
exception
this
note on
committee
advisory
803(a)
*10
evidence,
states:
FRE
rules of
federal
the informant
of
of the motivation
Problems
disagreement.
difficulty and
of
been a source
have
477,
Hoffman,
109,
63 S Ct
318 US
In Palmer
(1943),
report
of an accident
exclusion
L Ed 645
made
defendant
collision
the
engineer, offered
by the since deceased
crossing
grade
in a
trustees
railroad
"in
case,
report was not
upheld. The
was
business,”
of the
not a record
regular
of
course
business,
as a
of the business
systematic conduct
prepared for use
report was
the Court. The
said
opinion men-
railroading. While the
litigating, not
engineer only ob-
motivation of
tions the
opera-
routine
emphasis on records of
liquely, the
impact on
virtue of
significant only by
tions is
motivation
raises
ion of the Court
lack
ment
sent.”
of routineness
to be accurate. Absence
opin-
to be accurate.
lack of motivation
gone
mere
Appeals
beyond
had
engineer’s state-
of motive to be accurate:
misrepre-
"dripping with motivations
(CA
Palmer,
976,
2,
Hoffman v
129 F 2d
1942).
has said:
Court
Supreme
Our
writing. It
be admit-
report
could
police
is a
proponent
if the
as an exhibit
ted into evidence
can show
of the
requirements
it meets the
However,
because
exception.
records
business
the circum-
police
business
the "nature”
usually
reports are
such
under which
stances
Solomon v Shuell
P.J.
by Shepherd,
Dissent
made,
possibility
police
qualifying
so
Detroit,
unlikely.
181,
is
189;
[Moncrief
(1976) (citing
By comparison, I case, note a federal Wilson v Beebe, (CA 6, 1984), F2d aff'd on reh en (CA 6, 1985), banc 770 F2d 578 803(8), on FRE *11 federal business records hearsay exception. In that case, defendant, a state trooper, shot the plain tiff while attempting to handcuff him during an arrest. Plaintiff brought a negligence and civil rights trial, action. At plaintiff sought to admit a memorandum written by the superior defendant’s in which the superior concluded that defendant had acted contrary department training weapons use handling. The district court ad mitted the memorandum. In affirming, the Sixth Circuit concluded that all the relevant factors indicated that the memorandum was accurate. The Sixth Circuit indicated that the memorandum was free from problems motivational which might de- by Shepherd, P.J. Dissent I in the Wilson note from its trustworthiness.
tract case that memorandum police officer. interest present reports serious in the instant case they problems. are official Because motivational police reports have inher- I documents believe eyes. jurors’ credibility in the excessive ent and Therefore, of these I believe admission I remand not harmless. would error and was was the case for new trial.