*1
ZAVALAv ZINSER
10, 1982,
Docket No. 59195. Submitted November
at Detroit. Decided
23,
February
appeal granted,
1983. Leave to
is one generally particu- which is owed to the and not to [1, [2, 5, [4] [5, 5 Am Jur 75 Am Jur 6] 4 Am Jur 3, § 6] 73 Am Jur 243 et 61A Am Jur 6] 57 Am Jur 2d, Appeal seq. 2d, Appeal 2d, References 2d, Summary Judgment Trial 389. 2d, Pleading 2d, and Error 772 et and Error Municipal, for Points 18.§ §§ School, in Headnotes 26.§ seq. and State Tort Liability any particular individ- An officer is not liable to lar individuals. duty. of that for breach ual but duty was owed of whether a 2. The determination of law to an individual Here, pleaded which showed a no facts were court to decide. *2 properly granted duty The court to these owed summary judgment since an essen- for defendant negligence missing. was element of actionable tial properly Summary judgment 3. department governmen- operation a is a Detroit. The allega- liability. There was no immune from tort tal function of intentional tortious conduct. tion findings underlying the court’s 4. record does not disclose ruling denying request discretionary to amend defendants’ its allege violation of 42 USC 1983. their defendants’ necessary remanded to the trial court to make the The case is supplemented findings record to the Court of and return the opinion. Appeals days of the effective date of this within proceedings part for further con- Affirmed in and remanded opinion. sistent with this Kaufman, question a N. J. dissented and noted that exists duty the officers a ministerial as to whether breached peace. perform preserve the He believes some minimum acts to was, therefore, improper. summary judgment He also special relationship noted that raised the issue of a give duty of due care. Whether the which would rise to a reasonably question officers acted was a of fact for the trier of fact, therefore, summary judgment improper. He would reverse.
Opinion of the Court Duty. — — 1. Law of Peace Enforcement Officers Preservation preserve peace duty owed to A law enforcement officer’s is individuals; public generally particular officer and not to particular is not liable to individual but duty. for breach of that Pleading Duty. — — 2. of Law Questions by The determination of whether a was owed a defendant plaintiff question court to an individual is a of law for the decide. Immunity Departments. — 3. Governmental Police operation governmental function a (MCL691.1407; 3.996[107]). liability immune from tort op Opinion the Court Rulings Discretionary Findings. — — — 4. Trial Record Appeals may supple- The Court of remand to the trial court for mentation of the record where the record does not disclose the discretionary ruling findings underlying the trial court. N. J. Immunity — — Summary Judgment 5. Governmental Ministerial — — Duties Law Enforcement Officers Preservation Peace. governmental
Summary judgment upon im- based is properly granted on the issue of a officer’s preserve it failure to where cannot be said as a matter of law that the officer did not breach his ministe- perform rial some minimal acts to Appeal Summary Judgments — — Law Enforcement Officers Special Relationships — — Due Care. granted judgment improperly A in an action citizen officer wherein the raised special relationship giving issue of a rise to a of due care go the officer where there is a of fact which should regarding to the trier of fact whether the officer acted reason- *3 ably. Munro, Gagleard, Addis, Howard Schwartz Gagleard Imbrunone & Michael A. Gagleard), (by counsel, of Riley, P.J., Before: D. C. J.N. Kaufman
D. F. JJ. Walsh, Plaintiffs, D. F. Jose Baudelio Zavala Walsh, Zavala, and his wife Maria appeal from the circuit court’s entry of in summary judgment favor of Sergeant Zinser, defendants Andrea Freida Officer Harris, Y. 1963, and the City of Detroit. GCR 117.2a).1 This controversy arose out of shooting 1Although summary judgment the circuit court’s order states that granted 1963, 117.23”, under "GCR it is clear that the order was 117.2(1). pursuant 1963, to GCR. Opinion op the Court plaintiff Jose Zavala outside a Detroit bar in the morning early hours November 1975. Mr. As Zavala left the bar that morning, he encountered a large group of in people front of the building; some people, including brother, of the Mr. Zavala’s were fighting. shouting After at his brother to stop fighting, Zavala was shot and seriously injured participants one of the in fight. At the time incident, Harris, of the defendants Zinser and City officers, sitting were nearby their marked vehicle.
Plaintiffs participants sued several of the fight.2 were They granted permission later Zinser, amend their add defendants Harris, and the alleged Detroit. They defendants Zinser and Harris negligent had been failing fight, failing to stop Mr. him, shooting Zavala’s assailant from in gen- erally failing uphold or enforce the law. They "special relationship” between Mr. Za- vala and defendant police giving rise of due care toward Plaintiffs him. alleged the vicarious defendant Detroit for the negligent conduct of its employees. Zinser, Harris,
Defendants and the City of De- troit moved for summary judgment under GCR 117.2(1). The court ruled that plaintiffs’ claims defendant gov- were barred by ernmental immunity, and that duties owed officers in this case had been owed to the public generally and not to Mr. Zavala individually. The motion for summary judgment was, therefore, granted. appeal,
On plaintiffs challenge the court’s deter- *4 mination that defendant officers did not owe 2 that, suggests following trial, jury judgment The record a a plaintiffs’ entered amount of favor defendant Victor Guerra $1,209,726. 352
356
Opinion of the Court
After
careful
Zavala.
"private”
duty
and studied consider-
pleadings
examination
however,
arguments,
we are
plaintiffs’
ation
ruling
was correct.
that
court’s
persuaded
essence,
no more than that
plaintiffs alleged
In
had
their
duty
defendant
breached
It is well settled that
preserve
officer to
of a law enforcement
is owed to the
generally
is one which
individuals;
for
particular
and not
breach
particular
officer is not liable to
Mary-
South v
public.
individual but
How)
land,
(18
396;
(1855);
by a defendant to an individual Moning v of law for the court to decide. Alfono, reh NW2d Hendricks, den supra. Doe v Mich 951 case, In this pleaded no facts were which showed duty owed to these Since an essential element negligence missing, of actionable therefore, properly granted the court judgment officers. *5 Zavala v Zinser 357 Kaufman, Dissent N. J. J.
Summary judgment was also properly for defendant
of Detroit.
operation
The
governmental
function.
691.1407;
Fiser v Ann Ar-
3.996(107);
MCL
bor, 107
App 367;
Mich
Plaintiffs
also
appeal
on
the court
abused its discretion in denying their
request
amend their complaint
allege
defendants’ viola-
tion of 42 USC 1983. The record does not disclose
findings
underlying
the court’s discretionary
ruling; appellate review
impossible
in this case
without
such findings. See LaBar v Cooper, Mich
Ben P
NW2d 136
&
Fyke
Sons
Co,
v Gunter
Mich
Affirmed in part and remanded for pro- ceedings consistent with this opnion. We retain jurisdiction. Riley,
D. C. P.J., concurred. N. J. (dissenting). I believe sum- mary judgment was improper on the issue of the police officers’ A liability. police officer is generally immune when performing discretionary acts. The alleged that the officers here sat back App Kaufman, J. N. J. "in- altercation, not to preferring watched was shot. Mr. Zavala until after tervene” officers have whether becomes of this an assault while to sit back discretion ministerial there is a I believe occurs. nature acts to minimum some perform such a Charter creates duty: *6 public the shall "The offenders, rights crime, protect the prevent arrest
peace, of serve Nation health, pre- guard the property, persons and the the State and order, the laws of and enforce Char- City.” of the Detroit ordinances and the ter, 11, 7-1101. ch duty: state create
Statutes of this nightwatchmen the and be the of "It shall direction of the under the of the force and officers mayor ordinances of the all the conformity in with police, and and chief of state, suppress city, and laws of the riots, the and and breaches of disturbances in fleeing justice from any person pursue and arrest persons state; apprehend any and all any part the of against laws of committing any offense the of in the act the involving a state, city, of the the ordinances or forthwith peace, and to take the offender of the breach before the dealt with proper magistrate, court or be offense; proper offi- complaints to make for the person known or believed magistrates any and of cers the violation of the ordinances guilty them to be of state; and at all city, penal laws of the of the or the laws, such diligently faithfully to enforce all times and good preservation of regulations and ordinances order and the and to serve all for ordain; may welfare as council them delivered to process directed or service, police, purposes the chief of and for such have all every policeman nightwatchman, shall and and constables, upon view and powers may the without of and arrest violating any process, any person the act J. N. involving peace, or a breach of ordinance of committing the laws d&the state. any crime any policeman may and serve and The chief of proceedings viola- process in suits and execute all city, also other of the ordinances of tions process which, law, may a constable serve.” MCL 92.4; 5.1752. rights of the contained Detroit’s
One basic that: Rights Declaration of government institution. "City is a service provide public peace "The shall safety persons property health and for City.” Charter, Rights, Declaration also duty may by police A ministerial be shown departmental sup- If the department policy. policy Rights Declaration and the ports general specific statutory provisions, more charter Regard- presence easier case for is shown.1 the officers department’s policy, though, less of the general prevent have a to enforce laws and enough of the It is not say breaches *7 First, "public”. extends to the Mr. only this "public”. Zavala and others like him are the Sec- ond, from Mr. Zava- "public” good what —different 1If, however, departmental policy dictates that officers should allow (a "rough” neighborhoods possibilty raised in breaches the plaintiffs) conformity this case the and the officers acted in with shown, policy, rights may Í983. I that would a civil act violation be 42 USC liberally plaintiffs opportunity allow the an to amend their 1963, 118.1; allegation. to include LaBar v Coo this GCR Davis, per, 371 US 137 NW2d Foman v 178, 182; 227, 230; 83 S Ct 9 L Ed 2d plaintiffs alleged proposed complaint that the in their amended officers did not and others involved in intervene because are both the altercation are male Mexican-Americans. The officers females, Thus, one white and one black. VIII, 49, fight on Count account of race that the officers "failed to act and said ¶ * * gender Throughout *”. their briefs and other court, supporting documents submitted to this Court and the trial plaintiffs refer to the as “cowards”. officers N.J. served inaction? "private” good
la’s
—is
Third,
breaching
if in
an individ-
"public” duty
harmed,
allow the indi-
majority
ual
would
faced with the
remedy?
paradox
vidual a
We are
enforced
"right”
which cannot be
because no
public
standing
one member of the
would have
sue,
specifi-
as a whole would not be
yet
Forge
College v
Valley
Cf.
Christian
cally injured.
Separation
Americans United for
State, Inc,
Church and
464, 493,
454 US
fn
102 S Ct
(1982) (Brennan,
dissenting). Inter-
L Ed 2d 700
estingly,
majority cites decisions of the Con-
necticut courts for the proposition
Sestito v
general
owe
In
public.
Groton,
178 Conn
The plaintiffs also raised the issue of a "special relationship”. give This would rise to a duty of due care. Whether officers acted reasonably question of fact which should go to the trier of fact. Summary judgment improper. allegations
Serious are raised in this case. A forced into inaction —whether for budgetary poses dangers reasons or otherwise — to individual liberties. The are duty-bound agáinst to act crime. That is the purpose behind having department. When violate that duty, injured members of the should be entitled to relief. Police officers must be permitted the discretion perfor- needed in the duties, mance of their official but breaches of their ministerial duties cannot go unremedied. Did these officers breach that ministerial We do not duty? law, and, therefore, know as a matter of judgment under a application govern- blanket mental improper. I would reverse on grounds. these