Johnson v. Wayne County

Cavanagh, P.J.

(concurring in part and dissenting in part). I concur in parts i and n of the majority opinion. However, I disagree with the majority’s resolution of the issues in part m. I believe that it is inconsistent to conclude that all of plaintiffs other claims, under the same factual situation, were not supportable for purposes of summary disposition, but plaintiffs claims of gross negligence and intentional infliction of emotional distress were.

The majority finds that plaintiffs claim of an Eighth Amendment violation cannot stand because defendants were not deliberately indifferent to a substantial risk of harm to plaintiff. Deliberate indifference arises when a person disregards a risk of harm of which that person is aware. Farmer v Brennan, 511 US —; 114 S Ct 1970 ; 128 L Ed 2d 811, 825-827 (1994). However, the majority also finds, under the same facts, that plaintiff presented sufficient evidence justifying application of the gross negligence exception to governmental immunity. I fail to see how defendants’ conduct could be so reckless as to demonstrate a substantial lack of concern for whether an injury resulted (as the majority concludes in its analysis of the latter), and yet not be deliberately indifferent to a substantial risk of harm to plaintiff (as the majority concludes in its analysis of the former). 1 _

*164 Moreover, I do not believe that plaintiff has alleged sufficient facts to sustain her claim of intentional infliction of emotional distress. Plaintiff has not shown that defendants’ conduct was "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.” Linebaugh v Sheraton Michigan Corp, 198 Mich App 335, 342 ; 497 NW2d 585 (1993). Defendants have a policy of segregating certain prisoners whenever there is a known possibility of harm if other prisoners are placed in the same cell. Plaintiff has presented no evidence that defendants disregarded a known possibility of harm by placing plaintiff in the same cell as Tamara Marshall and later handcuffing the two together. In fact, plaintiff does not allege that Marshall ever attempted to physically assault her. Moreover, plaintiff never informed defendants that she feared for her safety, and the deputies periodically looked into the cell that plaintiff shared with Marshall. Under these facts, I cannot find that defendants’ conduct was extreme and outrageous.

Furthermore, I believe that the majority’s decision places an unreasonable burden on defendants, who must maintain a jail system with limited facilities and personnel. Under the majority opinion, any prisoner could allege intentional infliction of emotional distress merely for being confined for a time in the same cell with or briefly handcuffed to a person accused of a heinous crime, regardless of the lack of evidence that any physical harm would result or, indeed, that there would be any attempt at physical harm._

*165 I dissent with regard to the majority’s findings that governmental immunity does not bar plaintiff’s claim of intentional infliction of emotional distress and that plaintiff presented sufficient facts to support that claim. I would affirm this case in its entirety.

In his concurring opinion, Judge Kolenda argues that the majority’s resolution of these issues is not inconsistent because constitutional torts involve standards not applicable to common-law torts. However, discussions of constitutional torts and common-law torts generally focus on negligence rather than intentional torts. See, e.g., Burnham, Separating constitutional and common-law torts: A critique and a proposed constitutional theory of duty, 73 Minn L Rev 515 *164 (1989); Whitman, Government responsibility for constitutional torts, 85 Mich L R 225, 248-254 (1986). In any case, the gross negligence exception to governmental immunity is not a common-law rule but rather a creature of statute.