Appendix AD — Boggerty v. Wilson

Supreme Court, U.S.

89-1047 FILED

} AUG 29 1989

No. JoREPe F. SFANIOL, JR. |

In The eles -

Supreme Court of the United States

October Term, 1989

MAJOR F. BOGGERTY and ADEN

BOGGERTY,

Petitioners,

VSe

CARNESTINE WILSON, JACKIE

VEASLEY, CYNTHIA MARTIN,

DAVID MURRAY and LT. WARREN

COLEMAN,

Respondents,

and

THE CITY OF DETROIT,

Respondent.

APPENDIX A THROUGH D

Lawrence D. Hochman

Melvyn D. Saperstein

29800 Telegraph Road

Southfield, MI 48034

(313) 353-6500

APPENDICES

* * *

APPENDIX A

OPINION

STATE OF MICHIGAN

COURT OF APPEALS

MAJOR F. BOGGERTY and

ADEN BOGGERTY,

Plaintiffs-Appellees

and Cross—Appellants,

_s No. 82510

Pee

EARNESTINE WILSON, JACKIE June 2, 1987

VEASLEY, CYNTHIA MARTIN,

DAVID MURRAY and LT. WARREN

COLEMAN,

Defendants—Cross-

Appellees,

and

THE CITY OF DETROIT,

Defendant-—Appellant.

/

BEFORE: H. Hood, P.J., J. H. Gillis, and J. M.

A-l

Batzer*, JJ. J. M. Batzer, J.

Following a jury trial, defendant City of

gf

Detroit was found liable under 42 USC 1983, for

violating the constitional rights of plaintiff

Major Boggerty (hereafter "plaintiff"). The City

appeals as of right. ansaind

Plaintiffs have cross-appealed the judgment of

no cause of action in favor of the individual

defendants, police officers for the City of

Detroit.

The instant action arises out of the arrest of

plaintiff in the City of Detroit on October 24,

1979, Plaintiff was arrested at the time of the

arrest of his brother, Robert, a felonious assault

Suspect and passenger in plaintiff's car.

Plaintiff testified that the officers informed him

at the time of Robert's arrest that they would have

b

to take him down to the _ police station.

testified that there were three unopened fifths of

liquor in the rear passenger area of his car.

Plaintiff was taken by two policemen to _ the

llth Precinct. Once at the station, plaintiff's

belongings were removed and his watchband was

broken in the process. According to plaintiff, he

was functioning normally during he booking

procedure. After plaintiff s_ belongings were

removed, he was taken by an officer to a door where

he was met by Officer David Murray.

escorted plaintiff to a cell where plaintiff

remained for approximately one hour.

Plaintiff testified that he repeatedly

Ld

‘requested to be let out of his cell to make a phone

all but that Murray at first ignored his requests.

After several minutes, Murray responded and took

1intiff from his cell to a phone in the

fingerprint room. Plaintiff called the home of his

friend, James Carreker, and informed arreker s

wife of his arrest. After the phone call,

plaintiff was taken to a table and fingerprinted.

According to plaintiff, after he wiped his

hands, he was approached by Murray and given a

blank sheet of paper. Plaintiff testified that

Murray told him, "You sign this sheet of paper and

pay $100 and you can go." Plaintiff heard his

brother, Robert, detained in a precinct cell, yell

to Murray to "Bring your red ass in here if you

want to fight.” Murray then allegedly grabbed

plaintiff by his shirt collar and kneed him in the

upper left side of his leg, near his groin.

According to plaintiff, he fell to the floor

nd Murray rantinined birkhé ano con = the lowe _—

ind iurray CONT1LNUEe! KICKING Nim in The yWwer DAaACK.

Three police otficers joined Murray and_ grabbed

plaintiff “spread eagle" on the floor. The

officers hit plaintiff a few more times in the

abdominal irea. Because his’ leg had been

previousiy broken and he did not want to reinjure

plaintif ppealed to a black officer t stop

lt, piaintiftt appeaied to a Dlack officer to stop

: £ ~ - ~ " . .

the beating, but the officer responded, If your

leg is broken, you should have a cast on it." When

plaintiff looked up, he saw a white officer

_" ¥. Ky - y = ee TL, ff Ss ame Leannan

Standatlny Il Lire GOOrway. Line oTrrcers SLUppeUu

assaulting plaintiff and ordered him onto a_ bench.

He remained on the bench until his wife and a

friend, James Carreker, arrived. Plaintiff's wife

paid plaintiff's bond and with the help of Carreker

drove plaintiff tto Sinai Hospital. Although a

Detroit EMS unit had been called to_ transport

plaintiff to Detroit Receiving Hospital for medical

attention, plaintiff refused to go because Sinai

was closer to his home. Plaintiff testified that

sometime after the incident, he learned that his

wife poured him a tumbler full of whiskey which he

drank in the car on the way to the _ hospital.

Plaintiff remained in the hospital until December

24 1979 He continues to suffer pain in his left

Plaintiff's wife, James Carreker and Ruth Gray

, eee :

Chambers corroborated plaintiff's account of events

. . -ceor

occurring before and after plaintiff's arrest and

A-5

subsequent injury at the station.

A conflicting account of events was presented

by the Detroit Police Officers. The Detroit Police

received a report at approximately 4:00 p.m., of a

felonious asssault. A woman at the location of the

alleged assault described the assailants as driving

a blue car and heading in a northerly direction.

Defendant Wilson and her partner left the scene in

search of the car but were unable to locate it and

returned to the scene of the crime. As they were

speaking with other officers back at the scene of

the assault, a blue car turned onto that street and

stopped about mid-block. The woman identified the

car and Wilson approached plaintiff who was the

driver.

According to Wilson, plaintiff was holding a

small plastic cup, -which she assumed contained

alcohol. She asked plaintiff to step out of the

vehicle. She also saw a fifth of Canadian Club

sitting along side of plaintiff. She recalled that

A-6

plaintiff was reluctant to comply and_ started

"mumbling and cussing.” After Robert Boggerty was

arrested, Wilson placed plaintiff under arrest for

having open alcohol in his car and disturbing the

peace. Wilson accompanied plaintiff to the

station where, pursuant to Lt. Warren Coleman's

directions, the charge was changed to driving under

the influence of liquor. Plaintiff refused a

breathalyzer test. Wilson testified that the DUIL

charges were eventually dropped due to insufficient

_ evidence. The charges’ regarding plaintiff's

failure to take a breathalyzer test were dropped

upon a referee's finding that the reason for

plaintiff's arrest was belligerence.

Plaintiff called Lt. Warren Coleman as an

adverse witness. Coleman testified that he thought

plaintiff was "quite intoxicated" when he was

brought to the station. Coleman believed that it

was proper to let plaintiff out of his cell to make

a call assuming that the doorman, Murray, thought

A-7

1intiff was capable of making the call. Coleman

testified that on the date of the offense, Murray

was acting as doorman at the precinct. Coleman did

not see the injury but entered the fingerprinting

room within seconds after hearing the sound of

£.

4

someone or something falling. When he entered, he

saw plaintiff and Murray lying on the floor. He

he saw anyone assault plaintiff.

denied that

Two physicians, McCollough and Pollak,

testified concerning plaintiff's injuries. Both

testified that plaintiff suffered a fractured femur

and that it was unusual for a man of

plaintiff's

age to have sustained such a fracture as the result

of a fall because the injury generally required a

higher degree of external force. Pollak read an

excerpt from the emergency room admissions’ records

indicating that it was difficult to examine

nolaintiff because he was intoxicated with alcohol.

Plaintiffs additionally introduced the

~£

testimony of two experts in the area of hiring and

A-8

training police officers. Both experts’ testified

on the basis of standards published by various

criminal justice associations.

Dr. Beckman testified that based upon his

review of Murray's deposition, Murray had had _ no

special training for his position as doorman and

accordingly had not been properly trained. He also

opined that neither Lt. Coleman nor Officer Wilson

had been properly trained. When questioned on the

overall training of doormen provided by the City of

Detroit between the years 1970 and 1979, Beckman

responded that the training methods "did not and

never have'’ met the standards on which he relied.

Beckman acknowledged on cross-examination that

Detroit Police officers go through all state

mandated training and that the training by the City

of Detroit met all state standards.

Dr. Donley concurred in Beckman's assessments.

Like Beckman, Donley testified that Murray had not

been properly trained as a doorman. Donley

A~9

asserted that in 1978 to 1979, the City of Detroit

had a “well written program" for training doormen,

but that the program had not been effectively

carried out. Finally, Donley explained that a

visibly intoxicated prisoner should not be removed

from his cell to make a phone call for a number of

reasons, including injury to. the intoxicated

person. Instead, an intoxicated person should be

permitted his phone call prior to being taken to

Plaintiff's case as submitted to the jury on a

special verdict form charged the individual

jlefendants, variously, with false imprisonment,

assault and battery, negligence, and denial of

1intiff's civil rights. The case against

endant City of Detroit was premised on _ the

City's denial of plaintiff's civil rights by

improper training, or by a "policy, custom or

procedure" which violated plaintiff's civil rights.

‘he jury rendered a verdict of no cause of action

A-10

as to the individual defendants on all counts’ and

rendered a verdict wainst the City in the amount

yf $550,000 for denial of plaintiff's civil rights.

We first address defendant -appellant "s claim

ot error.

ny

Defendant itv of Detroit claims that

plaintiffs presented insufficient evidence of a

denj ] a f n> rj] rj »ohts tr en)eta?i } " eooee wu arnt

ienla yk Civili rights to sustain the jury verdict.

[In reviewing the City’s claim, this Court must

view the evidence in a light most favorable to

1iintiffs and give plaintiffs the benefit of every

AN , f ~Ane }, . 7 is _— = m }

reasonable 1ference that could be drawn from the

windan 1 4 f+ ~ ee- mnman + — oe, ns My ethic

Vidence, it after viewlne the evidence in this

manner, reasonable men could differ, the question

Lac 9 r) sarily lof-+ tho SEE ok ta W ; 7 lTarahea

Was prope riy ~s @ LO wei. }Uur Ye yYapler + Jaco >»

; J } ;

TAC Meet - 90 i ci a297 WLIO an sonar *

145 Mich App 285, 290-291; 377 NW2d 879 (1985).

[} > — ac} > 7 > ordi + — Lac cela r thar thea eth

1é sper l 24 VE a \ A L lakes \ i@al Lima Lu Lil¢ pua y

nramicad hoe (‘4 ra ljaahj litv mn thea (‘3 Ve Cat i ume

premised the City s Liadllity on the City s faliure

to properly train its doormen and the resu

A-]]

oa s

negligent removal of plaintiff from his cell. When

we view the evidence in a light most favorable to

ylaintiffs, we conclude that plaintiffs presented

insufficient evidence to sustain this verdict.

A plaintiff may establish municipal liability

for deprivations of a federal constitutionally

protected interest if he can show the existence of

a policy or custom and a sufficient causal _ link

between the policy or custom and the constitutional

deprivation. Monell v Dep't of Social Services,

436 US 658; 98 S Ct 2018; 56 L Ed 2d 611 (1978).

fonell's proscription of vicarious liability on a

respondeat superior theory makes plain that the

" sk ae

. ? . a "

‘policy or custom requirement * * * was intended

to prevent the imposition of municipal liability

under circumstances where no _ wrong could be

ascribed to municipal decisionmakers."

City of Oklahoma City v Tuttle, US __ 3 105 5

Ct 2427, 2435; 85 L Ed 2d 791 (1985) (plurality

opinion); Id., 105 S Ct at 2438-2439 (BRENNAN, J.,

concurring).

Additionally, it now appears that in 81983

actions the plaintiff has to present proof of fault

beyond mere negligence on the part of the City in

establishing the policy or tolerating the custom.

See Daniels v Williams, US ; 106 S Ct 662;

88 L Ed 2d 662 (1986) (prison official's negligent

conduct causing unintended loss of or injury to

life, liberty or property does not constitute a

violation of the Due Process Clause of the

Fourteenth Amendment); Davidson v Cannon, US

___; 106 S Ct 668; 88 L Ed 2d 677 (1986) (same).

Plaintiffs clearly presented no facts’ that

tended to show conduct implementing or executing a

policy statement, ordinance, regulation, or

decision officially adopted and promulgated by the

City. Monell v Dep't of Social Services, 436 US at

690; 98 S Ct at 2035-2036. In fact, Donley

testified that the City had a well-written program

for training doomen.

A-13

However, governmental customs, in contrast to

official policies, do not receive "formal approval

through * * * [the local government's] official

decisionmaking channels." Monell, 436 US at

690-691; 98 S Ct at 2036. Rather, they are simply

"'nersistent and widespread * * * practices of * *

* officials.'" Id., at 691; 98 S Ct at 2036.

Even if there were testimony of certain

practices of officers at the llth Precinct from

which it could reasonably be inferred that there

existed a custom of training standards that failed

to meet published standards and which were not in

accord with the City's own program, such a "custom"

does not, in itself, daeaid teh a prima facie case.

There must be ie MARR iraative link" between the

custom at issue (especially where, as here, the

"custom" itself does not establish wrongdoing) and

the constitutional deprivation alleged to cast

blame on the City. Tuttle, 105 S Ct 2436. Federal

circuit courts have taken Tuttle's “affirmative

A-14

link" requirement to mean that there must be some

knowledge or an awareness, actual or imputed, of

the custom's consequences showing the

P P P 1 .

municipality s approval, acquiescence, or

encouragement of the unconstitutional violation.

Hamilton v Rogers, 791 F2d 439 (CA 5, 1985); Jones

v City of Chicago, 787 F2d 200 (CA 7, 1986); see

Hays v Jefferson County, Kentucky, 668 F2d 869,

873-874 (CA 6, 1982), cert den 459 US 833; 103 S Ct

75; 74 L Ed 2d 73 (1982).

Further, the quantum of evidence needed to

establish the "affirmative link" is considerably

greater where, as here, the particular custom that

plaintiffs claim resulted in their injuries

involves a course of municipal inaction that is a

200d deal removed from the constitutional

deprivation alleged. Oklahoma City v Tuttle,

supra; Napier v Jacobs, 145 Mich App 285, 298; 377

NW2d 879 (1985). We find that the Tuttle

affirmative link is missing in the instant case.

>

|

—

oa

In the case sub judice, plaintiffs’ own expert

testified that the training of Detroit police

officers met all state standards. Plaintiffs

presented no evidence that the standards’ their

experts relied on were accepted generally by

municipal departments or were of such a nature that

the failure to live up to them was’ substantially

likely to result in injury. Plaintiffs presented

no evidence of similar incidents at other precinct

lockups. The City's mere failure to measure up

to published training standards thought by

plaintiffs' expert to be superior to the standards

of Michigan law and its failure to follow through

on its own written standards does not make a prima

facie case. Plaintiffs’ evidence when viewed most

expansively can establish no more than negligence

on the City's part. Such a quantum of fault is

insufficient.

In Daniels v Williams, supra, the plaintiff

sought damages in a 81983 action for injuries

A-16

allegedly sustained while a jail inmate when he

slipped ona pillow left on the jail stairs by a

guard. In affirming summary judgment for the

defendant, the U.S. Supreme Court stated:

"Our Constitution deals with the _ large

concerns of the governors and the governed, but it

does not purport to supplant traditional tort law

in laying down rules of conduct’ to regulate

liabiltiy for injuries that attend living together

in society."

"That injuries inflicted by governmental

negligence are not addressed by the United States

Constitution is not to say that they may not’ raise

significant legal concerns and lead to the creation

of protectible legal interests. The enactment of

tort claim statutes, for example, reflects the view

that injuries caused by such negligence’ should

generally be redressed. It is no reflection on

either the breadth of the United States

Constitution or the importance of traditional tort

law to say that they do not address the _ same

concerns." [footnote omitted.] 88 L Ed 2d 669

Having found that plaintiffs presented

insufficient evidence to recover for violation of

plaintiff's constitutional rights, we find it

unnecessary to address defendant-appellant's

remaining claims of error. We move to plaintiffs’

A-17

claim on cross-appeal.

ITI

Plaintiffs contend that the trial court’ erred

by refusing to permit plaintiffs to make objections

during trial to the video deposition of plaintiffs'

witness, Dr. Mitchell Pollak. Plaintiffs sought to

object to Pollak reading from his discharge summary

a statement that plaintiff was admitted after being

involved in an altercation in which he tripped on

his leg and fell down.

Plaintiff's objection came too late. The

applicable court rule, GCR 1963, 315.6(2) [now MCR

2.315(F)], provided that objections are waived

unless a party presents the deposition, along with

his objections to the trial court, ten days before

trial. We reject plaintiffs’ argument that the

availability of a written transcript negates the

waiver, which was couched in mandatory terms in the

court rule. The availablility of the written

transcript has little or no effect in avoiding the

A-18

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delay caused by objections to a video deposition at

or near the time of trial. Sponenburegh Vv

Wayne County, 106 Mich App 628; 308 NW2d 589

(1981), relied upon by plaintiffs, is inapposite.

Moreover, as in Sponenburgh, reversal is not

required here since plaintiffs were not denied a

fair trial by admission of the testimony, which

supported at least one of plaintiffs’ alternative

theories of liability against the City.

IV

Plaintiffs complain that they were reversibly

prejudiced when defense counsel commented on, and

cross-examined plaintiff concerning the factual

inconsistencies between his’ various pleadings,

amendments thereof, and his trial testimony. In a

similar vein, plaintiffs allege that they are

entitled to a new trial because defense counsel for

the individual defendants improperly commented on

the history of the pleadings, noting the number of

amendments and the addition of claims.

A-19

NN

With regard to the former contention, "counsel

should be afforded a summational free rein in

. " . ; P .

comparing pleadings and testimony before the trier

of fact. Vachon v Todorovich, 356 Mich 182, 187;

97 NW2d 122 (1959). Such a rule discourages

deceptive pleading and "its observance affords a

time-tried and altogether valuable means of getting

it the truth when facts are disputed." Id., pp

157-188. See also Beals v Walker, 98 Mich App 214;

296 NW2d 828 (1980), rev'd on other grounds, 416

Mich 469; 331 NW2d 700 (1982).

However, we believe that comment on the mere

fact of amendment of pleadings is distinguishable.

ne rules provide for liberal pleading and

imendment. As such, we believe that comment . on

such practice, aside from the evidentiary facts

involved, is improper. However, in the instant

case, those comments were isolated, and as such,

innocuous. We decline to reverse.

V

Plaintiffs assert two errors relating to their

claim that the individual defendants Coieman and

Murray were negligent in their care of plaintiff, a

prisoner in a local lockup.

First, ~ plaintiffs argue that they were

entitled to present evidence of, and entitled to a

jury instruction on, Department of Corrections

rules and regulations, promulgated pursuant to MCL

791.262; MSA 23.22, dealing with the supervision

and administration of local penal institutions.

Specifically, plaintiffs wished to present expert

testimony relating application of the

administrative rules to the conduct of the

individual defendants and an_ instruction that

violation of the rules was evid:nce of negligence.

The court denied these requests below on the

grounds that violation of the administrative rules

had not been properly pled.

Violation of administrative rules and

A-21

regulations are evidence of negligence, and as

such, when a violation is’ properly pled, the

violation is properly submitted for jury

determination. Beals v Walker, 416 Mich 469, 481;

331 NW2d 700 (1982). Plaintiffs alleged in their

complaint that the individual defendants had a

"duty to know and_— follow administrative

regulations."

We believe that violation of the rules was

properly pled and that the trial court erred in

ruling to the contrary. However, we believe

admission of evidence regarding these violations

would have been otherwise denied, and as such we

decline to reverse. Queen Ins Co v Hammond, 374

Mich 655, 658-659; 132 NW2d 792 (1965). Before

evidence of a violation of an administrative rule

or regulation is admitted at trial, the trial court

must consider whether the harm suffered was what

the regulation was designed to prevent. Beals v

Walker, p 482. The regulations presented by

A-22

plaintiffs at trial dealt with specifications for

detoxification cells, holding cells, and

segregations cells. These rules deal with the

safety of prisoners within the various cells. They

serve to protect prisoners from assault within the

cells. They are not intended to prevent injuries

to persons in other areas of a local _ lockup

building. 2

Plaintiffs contend that the trial court’ erred

by refusing to permit their expert witness Donley

to offer an opinion on whether defendant Murray had

acted properly in his handling of plaintiff. In

each instance in which the opinions were sought,

defense counsel objected that the questions

embraced the ultimate issue of fact. The trial

court sustained the objection of defense counsel,

reasoning that the opinions were beyond the areas

of the expert's expertise. We agree with the trial

court.

Donley was qualified as an expert in the area

A-23

of police hiring and training. As such, we find no

abuse of discretion in the court's exclusion of his

opinion testimony concerning whether individual

police officers breached their standard of care.

VI

Finally, plaintiffs claim that the absence of

defendant David Murray from trial entitled them to

a default judgment, GCR 1963, 506.6(2), or at

least, entitled them to an instruction that

Murray's absence permitted the jury an inference

that his testimony would have been adverse to

lefendants' cause, SJI2d 6.01. Plaintiffs premised

their request for default on the alleged previous

oral command of Judge Dunn, at an April, 1984

hearing, that Murray appear at trial.’ The trial

court denied both the default judgment and

plaintiff's request for SJI2d 6.01 on the ground

that the record contained no written order

compelling Murray's presence at trial.

Courts speak through their written orders, not

A-24

—

their oral statements. Hosner v Brown, 40 Mich App

515; 199 NW2d 295 (1972). The record contains no

written order of the trial court, GCR 1963, 506.1,

or subpoena’ , GCR 1963, 506.4, compelling Murray's

presence. Accordingly, we agree with the trial

court that neither the default sanctions of GCR

1963, 506.6(2) nor the jury instruction, SJI2d

6.01, has application here. Cavanaugh v Cardamone,

147 Mich App 159; 383 NW2d 601 (1985). See also

Kaniewski v Emmerson, 44 Mich App 737, 738-739; 205

NW2d 812 (1973).

The trial court's judgment in favor of

plaintiffs against the City of Detroit is REVERSED.

The trial court's judgment of no cause of action

against the individual defendants is AFFIRMED.

/s/ John H. Gillis

/s/ James M. Batzer

A-25

FOOTNOTES

l Tn appropriate circumstances, a Single

decision by a municipal policymaker may result in

municipal liability under s1983. Pembaur Vv

Cincinnati, US ; 106 S Ct : 89 L Ed

2d 452 (1986).

-We note that subsequent to Young Vv

City of Ann Arbor, 119 Mich App 512; 326 NW2d 547

(1982), remanded on other grounds, 422 Mich 900

(1985), subsequent history at Young Vv

City of Ann Arbor, 147 Mich App 333, 335; 382 NW2d

785 (1985), in which this Court held that

Department of Corrections rules dealing with "local

jails" included city and county jails, as well as

local lockups, the Lesiglature amended MCL 791.262;

MSA 23.22 to specifically limit Department of

Corrections administrative regulations to jails

under the jurisdiction of the county sheriffs.

3

The stenographer's notes from that hearing

were never located.

“In a post-trial motion for default judgment

below and on appeal, plaintiffs present a_ subpoena

served on counsel for the individual defendants

compelling Murray's attendance on January 9, 1984,

a trial date some six months prior to the actual

trial of this matter. That subpoena is not a part

of the lower court’ record. More importantly,

absent a record of service for the ultimate June

trial date, we decline to given this non-record

order credence.

-

STATE OF MICHIGAN

COURT OF APPEALS

MAJOR F. BOGGERTY and

ADEN BOGGERTY,

Plaintiffs—Appellees

and Cross-Appellants,

Vv No. 82510

EARNESTINE WILSON, JACKIE

VEASLEY, CYNTHIA MARTIN,

DAVID MURRAY and LT. WARREN

COLEMAN,

Defendants-—Cross-

Appellees,

and

THE CITY OF DETROIT,

Defendant-Appellant.

/

BEFORE: H. Hood, P..I., J.H. Gillis and J.M.

Batzer*, JJ.

H. Hood, P. J. Dissenting in part.

I must respectfully dissent from those

portions of the majority decision which vacate the

jury's verdict and which approve the trial court's

A-27

ruling as to the absence of defendant David Murray.

First, I cannot agree with the majority's

conclusion that plaintiff's evidence was

insufficient to support a jury verdict.

In Napier v Jacobs, 145 Mich App 285, 290-291;

377 NW2d 879 (1985), this Court stated that the

standard for review of a sufficiency of the

evidence claim in a civil case is comparable to the

standard used in ruling on a motion for judgment

notwithstanding the verdict:

"A judgment notwithstanding the verdict on

defendants’ motion is appropriate only if the

evidence is insufficient-as a matter of law to

support a judgment for plaintiff.

Basic Food Industries Inc v Grant, 107 Mich App

685, 695; 310 NW2d 26 (1981). In reaching a

decision, the trial court must view the evidence in

the light most favorable to the plaintiff and give

the plaintiff the benefit of every reasonable

inference that could be drawn from the evidence.

Isom v Farrugia, 63 Mich App 351, 354-355; 234 NW2d

520 (1975). If after viewing the evidence in this

manner reasonable men could differ, the question is

one for the jury and judgment notwithstanding the

verdict is improper. Id." Drummey v Henry, 115

Mich App 107, 111; 320 NW2d 309 (1982), lv den, 417

Mich 895 (1983).

"As explained in Killen v Benton, 1 Mich App

294, 298; 136 NW2d 29 (1965), a ' judgment

A-28

CC

“

notwithstanding the verdict may be allowed only if

there is insufficient evidence as a matter of law

to make an issue for the jury.'"

As indicated by its special verdict, the jury

in the instant case accepted plaintiff's theory

that defendant had a custom or. policy’ of

inadequately training its officers in the care and

custody of intoxicated persons.

In support of this’ theory, plaintiffs

introduced the testimony of two expert witnesses.

Dr. Beckman stated that according to "National

Standards" a doorman must have training in the care

and safety of prisoners to detect degrees of

intoxication or drugs. Based upon his review of

Murray's deposition, Beckman concluded that Murray

had had no special training for his position as

doorman and accordingly, that Murray had not been

properly trained. In addition, Beckman opined that

neither Lieutenant Coleman nor Officer Wilson had

been properly trained. Finally, when questioned on

the overall training provided by the City of

A-29

Detroit between the years 1970 and 1979, Beckman

responded that the training methods "did not and

never have" met the National Standards.

Dr. Donley concurred in Beckman's assessments.

Like Beckman, Donley tstified that Murray had not

been properly trained as a doorman. Unlike

Beckman, however, Donley asserted that in 1978 and

1979, the City of Detroit had a "well written

program" for training doormen, but that the program

had not been effectively carried out. Finally,

Donley explained that a visibly intoxicated

prisoner should not be removed from his cell to

make a phone call for a number of reasons:

"A Well, there is a number of reasons. A

erson could fight. When he is in the cell, locked

1 a cell it is very unlikely -- not much harm can

ye done to anybody. If he is taken out of the cell

and his contact with an officer or people out in

the lobby area, he can cause quite -- if a_ person

is in fact intoxicated, stumble and fall and cause

an injury."

de

I

I

i

t

In addition, Lieutenant Coleman testified that

letting plaintiff, an allegedly intoxicated

prisoner, out of his cell to make a phone call was

A-30

consistent with procedures in effect at the

precinct.

When this testimony is viewed in a ligit most

favorable to the plaintiffs and plaintiffs are

eiven the benefit of every reaosnable inference

which can be drawn from the evidence, I conclude

that sufficient evidence was presented to establish

that the City either had a policy of failing to

train its doormen or that the training provided was

so grossly negligent that it amounted to

"deliberate indifference". Furthermore, Donley's

testimony establishes that the lack of adequate

training was likely to cause the very danger which

befell plaintiff. Because the doorman’ was

inadequately trained, he permitted a visibly

intoxicated person to leave his cell thereby

rendering it likely that an injury would occur.

Accordingly, the jury could infer that by failing

to Crain its doormen, the City exhibited a

deliberate indifference to the resulting violation.

A-31

That there was testimony that the city met state

standards is not dispositive if those standard are

themselves inadequate.

The City contends that municipal policy could

never be established absent deliberate action by a

designated municipal policymaker. While

concededly, Justice Rehnquist, in a footnoote to

Tuttle! raises the question, he also specifically

refused to address it. See 85 L Ed 2d 804, fn 7

And the actual holding of Tuttle is far more

limited. Tuttle stands for the proposition that an

isolated incident of police mis-conduct can never

establish municipal liability. Since plaintiffs’

1llegations of municipal policy are supported by

more than the single incident complained of, Tuttle

does not bar recovery in the instant action.

MA

toreover, in lis

geht of the expert testimony

regarding the City's training program, the jury

could infer that the absence of adequate’ training

or the failure to routinely implement adequate

A-32

| :

training was a conscious decision by the City's

policymakers.

Unlike the situation in Tuttle, plaintiffs

here presented evidence of a city-wide lack of

adequate training, or at least, a grossly negligent

training program. The jury's decision was not

based on the single, isolated incident but rather

on the City's overall failure to provide adequate

training as testified to by Beckman and Donley.

The expert testimony was sufficient to establish a

municipal policy upon which to render the City

liabie. While defendant cast considerable doubt on

the opinions of plaintiff's experts, the jury, in

weighing the experts testimony, obviously resolved

those doubts in favor of plaintiffs.

Unlike the majority, I would hold that

plaintiffs did establish an "affirmative link"

between the City policy and the constitutional

deprivation. Tuttle, 105 S Ct 2436. Both experts

testified that proper training would have alerted a

A-33

t

+

}

’

’

. e

~ bona’

doorman to the dangers inherent in caring for

intoxicated prisoners. Moreover, Donley

specifically stated that one of the dangers

attendant upon letting an intoxicated person out of

his cell was that the prisoner might stumble and

fall and injure himself. Accordingly, the complete

failure to train _the doorman made the risk of

personal injury highly likely and the City's

failure to train could be viewed as the "moving

force" of the violation, i.e. the injury. I would

affirm.

I also cannot agree with the majority that the

absence of defendant David Murray was adequately

handled, The absence of David Murray was a point

of confusion and contention throughout these

proceedings. [I am convinced that the plaintiffs

were at least entitled to an instruction as to

Murray's absence.

One variation of the standard jury

instructions, SJI 2d 6.02, reads:

A-34

"(The [plaintiff/defendant] in this case has

not offered [the testimony of / ].

You may infer that this evidence would have _ been

adverse to the [plaintiff/defendant] if you believe

that the evidence was under the control of the

{plaintiff/defendant] and could have been produced

by [him/her], and no reasonable excuse for

[plaintiff's/defendant's] failure to produce the

evidence has been shown.)"

This instruction, if requested, should be given

when a question of fact arises regarding both

"control" and “reasonable excuses". Both questions

were raised in the present case and therefore the

instruction was applicable.

The Supreme Court has held that when an

accurate and applicable standard jury instruction

has been requested by a party, it should be given

by the trial court if the court gives any

instruction at all on the subject covered by the

requested instruction. Socha v Passino, 405 Mich

3, 467; 275 NW2d 243 (1979). In Javis v

Ypsilanti Board of Education, 393 Mich 689; 227

NW2d 543 (1975) our Supreme Court held that

reversal was required where an applicable and

A-35

requested jury instruction was not. given. In

Johnson v Corbet, 423 Mich 304; 377 NW2d 713

(1985), however, the Supreme Court decided that the

Javis rule need no longer be applied.

Rather, the Johnson Court concluded that

failure to give a requested and applicable jury

instruction should be reviewed under the harmless

error standard of GCR 1963, 529 [MCR 2.6139(a)] and

that the appellate court should set aside a jury

verdict only if the failure to do so would be

"inconsistent with substantial justice".

In my opinion, the standard jury instruction

was clearly applicable and appropriate to the

present case. The instruction is meant to

encompass situations where there is a question of

fact regarding the cause of the defendant's

ibsence. Such a question of fact was obviously

present in this case. In addition, the questions

which the jury asked regarding Murray's absence and

the judge's comments on the his absence further

A-36

————E

indicate that the instruction was applicable.

Moreover, the instruction given by the trial court

jleviated widely from the standard instruction and

failed to make any reference to the inferences

contained in the instruction.

Because the question of Murray's absence was

raised during the trial and because the court

itself noted and instructed the jury on Murray's

ibsence, the court erred in failing to give SJI 2d

6:01. Considering David Murray's pivotal role in

the events resulting in the injuries, the failure

to give the appropriate instruction cannot be

viewed as harmless error, and plaintiff's are

entitled to a new trial as to David Murray even if

the jury verdict as to City is overturned.

Except for these two points, I concur in Judge

Batzer's opinion.

/s/ Harold Hood

A-37

Ls City of Oklahoma City v Tuttle, US ;

105 S Ct 2427; 85 L Ed 2d 791 (1985), relied

on in the majority opinion.

APPENDIX B

ORDER

(Michigan Supreme Court)

(Entered February 22, 1988)

81500

81500( 68)

MAJOR F. BOGGERTY and =

ADEN BOGGERTY,

Plaintiffs—Appellants,

v SC: 81500

COA: 82510

EARNESTINE WILSON, JACKIE LC: 81-107897-NO

VEASLEY, CYNTHIA MARTIN,

DAVID MURRAY and LT.

WARREN COLEMAN,

Detendants-—Appellees,

and

CITY OF DETROIT,

‘Defendant-Appellee

Cross—Appellant.

On order of the Court, the application for

leave to appeal and the application for leave to

B-1

appeal as cross-appellant are considered, and they

are DENIED, because we are not persuaded that’ the

questions presented should be reviewed by this

Court.

Levin and Archer, JJ., would grant leave to

appeal.

I, CORBIN R. DAVIS, Clerk

of the Michigan Supreme

Court, certify that the

foregoing is a true and

complete copy of the order

entered at the direction

of Court.

February 22, 1988 /s/ Corbin R. Davis

APPENDIX C

ORDER

(Michigan Supreme Court)

(Entered May 31, 1989)

81500

(74)

MAJOR F. BOGGERTY and

ADEN BOGGERTY,

Plaintiffs-—Appellants,

V SC: 81500

CoA: 82510

EARNESTINE WILSON, JACKIE LC: 81-107897-NO

VEASLEY, CYNTHIA MARTIN,

DAVID MURRAY, and WARREN

COLEMAN,

Defendants—Appellees,

and

CITY OF DETROIT,

Defendant-—Appellee,

Cross-—Appellant.

On order of the Court, the motion for

reconsideration of this Court's order of February

22, 1988, is considered, and it is DENIED, because

C-1

_—————————————

it does not appear that the order was entered

erroneously.

Levin, J., would grant reconsideration and

would grant leave to appeal.

10524 :

I, CORBIN R. DAVIS, Clerk

of the Michigan Supreme

Court, certify that the

foregoing is a true and

complete copy of the order

entered at the direction

of the Court.

May 31, 1989 /s/ Corbin R. Davis

APPENDIX D

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE

MAJOR F. BOGGERTY and

ADEN BOGGERTY,

Plaintiffs,

vs. Case No. 81 107897-NO

EARNESTINE WILSON, et al,

Defendants.

/

SPECIAL VERDICT

Ls SECTION 1983: Do you find any of the in-

dividual Defendants violated Plaintiff

MAJOR BOGGERTY'S constitutional rights?

(Answer yes or no as to each Defendant).

EARNESTINE WILSON NO

JACKIE VEASLEY NO

CYNTHIA MARTIN NO

DAVID MURRAY NO

WARREN COLEMAN | NO

r FALSE ARREST AND IMPRISONMENT: Do you find

that any of the individual defendants falsely

arrested and imprisoned Plaintiff MAJOR

BOGGERTY? (Answer yes or no as to each

Defendant).

EARNESTINE WILSON NO

JACKIE VEASLEY NO

CYNTHIA MARTIN NO

ASSAULT AND BATTERY: Do you find that any of

the individual Defendants committed an

assault and battery on Plaintiff MAJOR

BOGERTY or assisted in such assault and

battery on Plaintiff MAJOR BOGGERTY? (Answer

yes or no as to each Defendant).

DAVID MURRAY NO

WARREN COLEMAN NO

Was the liability of any of the individual

Defendants a proximate cause of injuries

or damage to the Plaintiff? If so, whom:

(Answer yes or no as to each Defendant)

EARNESTINE WILSON NO

JACKIE VEASLEY NO

CYNTHIA MARTIN NO

DAVID MURRAY NO

WARREN COLEMAN NO

IF YOU ANSWERED "NO" TO THE ABOVE QUESTION, DO NOT

ANSWER QUESTION NO. 5 BUT GO ON TO QUESTION NO. 6.

IF YOU HAVE ANSWERED QUESTIONS 1, 2, 3 OR 4 "YES",

ANSWER QUESTION NO. 5.

5. | DAMAGES UNDER THE PREVIOUS CAUSES OF ACTION:

As to Plaintiff MAJOR BOGGERTY:

(a) We award Plaintiff compensatory damages

in the amount of:

Actual $ Exemplary

(Answer this question only if you have

answered "yes" to the question

regarding violation of Plaintiff's

Constitutional rights in paragraph No.

1)

(b) We award Plaintiff punitive damages in

the amount of $

6. (a) Without regard to your previous findings

above, do you find that any of the individual

D-3

Defendants were negligent in the manner they

dealt with Plaintiff MAJOR BOGGERTY?

(Answer yes or no as to each Defendant).

EARNESTINE WILSON NO

JACKIE VEASLEY NO

CYNTHIA MARTIN NO

DAVID MURRAY NO

WARREN COLEMAN NO

IF YOUR ANSWER IS "NO", PROCEED DIRECTLY TO

THE QUESTION UNDER PARAGRAPH NO, 7.

(b) Was the negligence of the individual

Defendants who were negligent a proximate

cause of the injuries or damages to Plaintiff?

ANSWER: (Yes or No)

IF YOUR ANSWER IS "NO", PROCEED DIRECTLY TO

THE QUESTION UNDER PARAGRAPH NO. 7.

Without duplicating any money damages that

might have been awarded under the previous

causes of action, what is the total amount

of plaintiff's damages as it pertains to

the Defendants' negligence, if any?

(a) As to Plaintiff MAJOR BOGGERTY:

Actual $ Exemplary $

Was the Plaintiff MAJOR BOGGERTY negligent?

ANSWER: (yes or No)

IF YOUR ANSWER IS "NO", PROCEED DIRECTLY TO

THE QUESTION UNDER PARAGRAPH NO. 7

Was the Plaintiff's negligence a proximate

cause of the injury or damage to the Plain-

tiff?

ANSWER: (Yes or No)

IF YOUR ANSWER IS "NO", PROCEED DIRECTLY

TO THE QUESTIONS UNDER PARAGRAPH NO, 7.

Using 100 percent (100%) as a total combined

negligence which proximately caused the injury

or damage to the Plaintiff, what percentage

of such negligence is attributed to the

Plaintiff?

ANSWER: percent

Please note that the Court will reduce the

amount of money damages under this paragraph

No. 6 by the percentage of negligence you

attribute to Plaintiff, if any. The re-

mainder will be the amount which Plaintiff

is entitled to recover as a result of the

Defendants’ negligence.

SECTION 1983 (City of Detroit): Do you find

that the City of Detroit failed to train its

police force, or trained it in a reckless

or grossly negligent manner, or was deliber-

ately indifferent to training required, so

that future police misconduct was almost

inevitable, or do you find that there was a

policy, custom, ordinance or procedure which

violated Plaintiff MAJOR BOGGERTY'S consti-

tutional rights?

YES X NO

If the answer to the above was YES, then

dovevninn whether this was a proximate cause

to Plaintiff MAJOR BOGGERTY'S injuries. If

the answer to the above is NO, then go on to

Question No. 8.

Was the City's liability above the proximate

D-6

cause of Plaintiff MAJOR BOGGERTY'S injuries?

YES X NO

If the answer to the above is YES, then indi-

cate the amount of money damages you award

Plaintiff:

Actual $ 550 , 000

Exemplary $

8. As to Plaintiff ADEN (LOUISE) BOGGERTY:

(Answer this question only if you have

answered yes to one or more of the questions

above)

(a) We award Plaintiff ADEN (LOUISE)

BOGGERTY compensatory damages in

the amount of $50,000

DATED:

JURY FOREPERSON