# Opposition Brief — Jones v. Kish (No. 06-529)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2006

## Text

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No. 06-529 |

Iu the
Supreme Court of the Anited States

DOROTHY JONES, as personal representative
of the estate of Denise Michelle Jones, deceased,
Petitioner,

Vv.

WILLIAM KISH, III; Joseph Lavis;

Douglas Muncey; and Mohamed Nasser,
Respondents.

On Petition for a Writ of Certiorari

To The United States Court of Appeals
For The Sixth Circuit

BRIEF IN OPPOSITION

GARAN LUCOW MILLER, P.C.
Rosalind Rochkind (P23504)
Counsel of Record for Respondents
John J. Gillooly (P41948)

1000 Woodbridge Street

Detroit, MI 48207-3192
313.446.5522 Telephone

Becker Gallagher Legal Publishing, Inc. 800.890.5001

I.

lil.

i

COUNTER-STATEMENT OF
QUESTIONS PRESENTED

Has Petitioner shown compelling reasons for review
where, contrary to her assertions, she has failed to
demonstrate a conflict between the circuits or any
question requiring Supreme Court consideration?

Has Petitioner shown compelling reasons for review
where, regardless of the resolution of the questions
she has presented, she cannot prevail as she has
ignored other requisites for application of the “danger
creation” exception in the Sixth Circuit?

Has Petitioner shown compelling reasons for review
where, regardless of the resolution of the questions
she has presented, she cannot prevail as she has
ignored respondents’ defenses of qualified immunity
(by failing to address the question of “clearly
established law”) and res judicata?

Has Petitioner shown compelling reasons for review
where she is presenting new theories of liability which
were not presented or preserved in the courts below?

il

PARTIES TO THE PROCEEDINGS
AND RULE 29.6 STATEMENT

The City of Lincoln Park, Aaron Reynolds, and Mustapha
Atat, were each named as defendants in the district court, and
the City of Lincoln Park was also a named appellee in the
circuit court. Petitioner has not included these parties in the
pending Petition.

TABLE OF CONTENTS

Page
Counter-Statement of Questions Presented .......... i
Parties to the Proceedings and Rule 29.6 Statement ... ii
ee OE CE a ies an 2 oe eee ees ill
pee OE Re os Sioa HK ee CRO eee iv
Dae Oe CI 6 6s SG Ker eee ee eee ]
Summary of Reasons to Deny the Petition ......... l
eee OE GE GOS ok ek a hee eae | 2
Reasons for Denying the Petition ............... 6

I. The question of Sixth Circuit application of its
own precedent does not warrant Supreme Court
op eee te ee TU ee ee he ee 9

Ii. Regardless of the Answers to the Questions
Presented in the Petition, Petitioner Cannot
PU os Sols oe nk Sh ore ee ee 9

A. The Petition focuses on only one phrase
utilized in the first of a three-part test required
for application of the “danger creation”
WIN os os Cae ee 9

B. The Petition does not address the existence of
the “clearly established law” required to
overcome respondents’ qualified immunity . . 11

iV

C. The Petition does not address respondents’
asserted res judicata defense ........... 12

If. The Sixth Circuit’s Decision Does Not
Conflict With the Analyses of the Second,
Pours oF Tele CCM ck se ek ee es 13

IV. Petitioner Did Not Present or Preserve a
“Direct Injury” Claim in the Lower Courts,
Which Claim Could Not, in Any Event,
UN 6 oe i ae he ere cl so ad 15
NID 5 0 isk ow Se oo a ee heed 6 ee 8 See 18
Appendix
Appendix A: 4/7/05 Opinion of Michigan Court of
I ii no ee ee ake la

TE ea ia ae ee ee 35a

Appendix C: 2/27/06 Order of Michigan Sapreme
Ae ee hie nee sae bees va 36a

Vv

TABLE OF AUTHORITIES
Page

Cases
Anderson v. Creighton,

ei ED oo be Oo ee ee ee 13
Brousseau v. Hagen, ;

POP ay LOTR 8 SERS ee we ed 3, 83
Bukowski v. City of Akron,

Bee ee Poe Ce GRU) ee is Cece IS 7, 10
Cartwright v. City of Marine City,

Se Fm Ser COG. DUS) kc oe eae passim
Collins v. City of Harker Heights,

AE a Ae CD ed eke ere es 12, 19
County of Sacramento v. Lewis,

Ee Re LO, oe oe Ree eee es _ 18-21
Davis v. Fulton County,

SF .36 1346 (te Ce; 1996) ee tices 8

DeShaney v. Winnebago County Department of Social
Services,
A Ate, Se RPE 5655 od a 6 ete aoe 6 pecans passim
Ditmore v. Michalik,
244 Mich. App. 569; 625 N.W.2d 466 (2001) ....15

Dixon v. City of Lawton,
898 F.2d 1443 (10th Cir. 1990) .............. 12

vl

Dwares v. City of New York,
at We Pe Ce GE. ESOP oc cee eee 16, 17

Jones v. State Farm Mutual Auto Ins. Co..,
202 Mich. App. 393; 509 N.W.2d 824 (1994) ....15

Kallstrom v. City of Columbus,
136. F.3d 1055 (Gi Cr. 1996)... ee ees 4,10

Kennedy v. City of Ridgefield,
G59 Foe Woe Gee CW. BUD) 6 oc ic ccses 8, 16

Meeker v. Edmundson,
GID Fae et Cee Gs SP ok in wi weswwe 16, 17

Morse v. Lower Merion School District,
Se ee ee Ce ls BOE kos oe eR eR a 8

Pierson Sand and Gravel, Inc v. Keeler Brass Co,
460 Mich. 372; 596 N.W.2d 153 (1999) ._.... 14, 15

Reed v. Gardner,
ee ae Bee CP, BD cece ve vesue 16, 17

Ruiz v. McDonnell,
Se ae ST Cee Gy SD 6 a eee Sécas bas 8

Saucier v. Katz,
Sn I nS wack 5. <3

Windle v. City of Marion,
Dk ee ee CP Gl. AD ns oe Swe evo 8 ws 8

Wood v. Ostrander,
ee eee ee Re. CED oo kee ee cucu ws 8

Vil

Federal Statutes

Se Bias ETE ieee Sas FAECES CPA 15
BE ie. | er erer reer earn nee ere amet passim
gi ee ee i ee ae ee eae 3,4
ge ae oe ree rr ee wre re 3

Michigan Statutes

Den AST Law EER Oe eRe Owen ee 3, 17

I

BRIEF IN OPPOSITION

®
SUMMARY OF REASONS TO DENY THE PETITION

In order to prevail on her 42 U.S.C. §1983 claim, it was
necessary for petitioner to identify a relevant constitutional
right that was clearly established on October 8, 2001, the date
she was injured while observing a drag race. The Sixth
Circuit held that she was unable to satisfy the requisites of a
§1983 claim, and unable to avoid the respondents’ qualified
immunity from suit. Yet, seeking review from this Court,
petitioner attempts to shift her theory of liability from the
“danger creation” theory advanced in her Complaint and
addressed by the district and circuit courts, to a “direct
injury” theory raised for the first time to this Court, while she
ignores her burden to demonstrate the existence of a clearly
established constitutional right under either theory. She also
ignores respondents’ defense of res judicata and the
consequences of the final judgment entered in a state
proceeding instituted by petitioner seeking redress for the
same injury and the same conduct she complaints of in this
case. Thus, and regardless of the merits of the arguments
now advanced by petitioner, she cannot prevail and her
Petition should be denied. Moreover, petitioner’s claim is
properly analyzed pursuant to the dictates of DeShaney v.
Winnebago County Department of Social Services, 489 U.S. .
189 (1989), and the Sixth Circuit properly applied both
DeShaney and its own precedent when it held, inter alia, that
respondents’ conduct did not constitute an affirmative act that
had either created or increased the risk to which petitioner
was exposed as an observer of a drag race.

2

Contrary to petitioner’s assertions, precedent from other
circuits, including the Second, Fourth and Ninth Circuits, is
consistent with the reasoning advanced by the Sixth Circuit,
and the tests applied by those circuits who have adopted a
“danger creation” exception to the general rule enunciated in
DeShaney are consistent with the test applied by the Sixth
Circuit. Premised on the language of DeShaney, the conduct
of the state actor must either create a new danger, or increase
an existing danger, and petitioner had alleged no conduct that
satisfies this requirement.

As Petitioner has failed to suggest compelling reasons to
support the granting of her Petition, it should be denied.

scmaieerenine

STATEMENT OF THE CASE

During the early morning hours of October 8, 200i,
Denise Jones was among a crowd of persons observing a drag
race taking place in the City of Detroit, on the border of
Detroit and the City of Lincoln Park, when the driver of one
of the vehicles, Aaron Reynolds, lost control of his vehicle
and struck Ms Jones. Respondents, William Kish, III, Joseph
Lavis, Douglas Muncey and Mohamed Nasser, were police
officers employed by the City of Lincoln Park who were
present during the race.’ On May 8, 2003, petitioner,
Dorothy Jones, as Personal Representative of the Estate of
Denise Michelle Jones, deceased, commenced this litigation
in the United States District Court for the Eastern District of

' A detailed recitation of the underlying facts, taken in the light
most favorable to petitioner, is set forth in the Sixth Circuit
opinion. Pet. App. 2, ef seq.

3

Michigan. Ct. App. JA 18. Petitioner sought to impose
liability on respondents under 42 U.S.C. §§ 1983 and 1985
for fatal injuries suffered by Denise Jones when she was
struck by a vehicle engaged in an illegal drag race on the
public street. She complained that the respondents were
police officers who were present during the drag race, but
who failed to take any steps to stop it, and approved and
encouraged it. Count 1, entitled “Conspiracy”, complained
that the respondent police officers conspired with the drivers,
Aaron Reynolds and Mustapha Atat, to violate Michigan’s
drag race statute, M.C.L. 257.626a, and that they did so for
the purpose of depriving persons of the equal protection of the
law in violation of 42 U.S.C. §1985(3). Ct. App. JA 27.
Count II asserted a cause of action under 42 U.S.C. §1983,
and alleged that the actions of the respondents violated Denise
Jones’ rights under the Fourth and Fourteenth Amendments.
Ct. App. JA 29. Count III asserted a cause of action under 42
U.S.C. §1983 against the City of Lincoln Park. Ct. App. JA
32. In response to this Complaint, respondents filed an
Answer and Affirmative Defenses which included, inter alia,
the affirmative defenses of qualified immunity and res
judicata. Ct. App. JA 108.

Prior to the commencement of this federal action, on
December 20, 2001, petitioner had also commenced suit in
Wayne County Circuit Court, seeking to impose liability for
Denise Jones’ death on respondents, premised on causes of
action allegedly arising under Michigan law. Ct. App. JA
161. A final judgment was entered in the state action on
August 8, 2003, and petitioner appealed that judgment to the
Michigan Court of Appeals, which affirmed the judgment on
April 7, 2005, in Case #250616. Res. App. A at la.
Petitioner’s motion for reconsideration was denied by the
Michigan Court of Appeals on June 17, 2005, and her
Application for Leave to Appeal to the Michigan Supreme

4

Court was denied in Case #129133 on February 27, 2006.
Res. App. B at 35a, Res. App. C at 36a.

In this federal action, respondents sought summary
judgment in the district court on the bases that, taking the
evidence in the light most favorable to petitioner, there was
no genuine issue of material fact that petitioner’s claims failed
to implicate the deprivation of any constitutional right, that
respondents were entitled to qualified immunity from suit as
to any arguably implicated constitutional right, and that this
litigation was barred by the doctrine of res judicata. Ct. App.
JA 372. This motion was granted in an opinion released on
September 17, 2004. Ct. App. JA 43. The district court held
that petitioner had failed to establish the requisites for a cause
of action under 42 U.S.C. §1985 because of the absence of
any proof of class-based animus. Ct. App. JA 53-55. As to
petitioner’s claim under 42 U.S.C. §1983, the district court
held inapplicable the “state created danger” exception to the
general rule set forth in DeShaney v. Winnebago County
Department of Social Services, 489 U.S. 189 (1989), as
recognized by the Sixth Circuit Court of Appeals in, for
example, Cartwright v. City of Marine City, 336 F.3d 487
(6th Cir. 2003), and Kallstrom v. City of Columbus, 136 F.3d
1055 (6th Cir. 1998). As petitioner had not shown that
respondents had engaged in unconstitutional conduct, she had
failed to overcome the first inquiry into the respondents’
assertion of qualified immunity.

The judgment of the district court was affirmed on
petitioner’s appeal, and her motion for a rehearing en banc
was denied. Pet. App. 1, 71. Citing DeShaney, supra., the
Court summarized: “Because the officers did not have custody
of Denise Jones at the time of the accident, because the
officers’ actions did not place Denise Jones in any more
danger than she voluntarily undertook before they arrived and

5

because the officers’ participation in this tragedy did not
specially place Denise Jones at any more risk than the 150-
- 300 people attending the drag race, all relevant precedent
requires us to uphold the judgment of the district court
summarily rejecting this constitutional claim.” Pet. App. 2-3.
Further addressing the respondents’ claim of qualified
immunity, the Court held that petitioner had failed to
demonstrate a violation of ‘clearly established’ constitutional
rights. Pet. App. 23.

Petitioner does not address the issue of “clearly
established” law in her Petition, beyond her conclusory
assertion in the Statement of Facts that the respondents would
not be entitled to qualified immunity, asserting that “[t]his
case involves the abuse of authority.” Pet. at 4.2 Nor is
respondents’ affirmative defense of res judicata addressed by
petitioner, although this defense was presented to the Sixth
Circuit for its consideration.

Moreover, notwithstanding Petitioner’s apparent desire to
change her theory of liability, as evidenced by her assertions
that she “does not claim the Respondent police officers had a
duty to protect her under the Fourteenth Amendment” (Pet.
at 6-7), and that she “has never claimed the police officers
failed to protect her or the Constitution creates a duty to
protect” (Pet. at 8), her Complaint relied on a failure to
protect theory to support her §1983 claim. It alleged that
“fejach Defendant had the duty and the opportunity to protect
the decedent from the unlawful actions of the other Defendant
but each Defendant failed and refused to perform such duty,

> Thus, she has failed to sustain her burden of overcoming
respondents’ qualified immunity. Brousseau v. Hagen, 543 U.S.
194 (2004); Saucier v. Katz, 533 U.S. 194 (2001).

TT ee ee eee ee ee ee

6

thereby proximately causing the decedent’s death and
Plaintiff's injuries.” Ct. App. JA 20, 413. It further alleged
that the respondents “failed to use their police vehicle to
prevent the drag race from taking place by driving through the
stretch of road or flashing their lights, or even using the
public address system to warn the drag race participants,
instead of blaring rap music, ‘Everybody Should Be Living It
Up’, to parade and cheer for the event to occur.” Ct. App.
JA 24, 442. Further, and of particular note, the issue raised
against respondents by petitioner before the Sixth Circuit
Court of Appeals, as stated in her Appellant’s Brief, page 1,
was “[wjhether Plaintiff was entitled to summary judgment or
jury question for Fourteenth Amendment substantive due
process claim that state actors created danger, in violation of
42 U.S.C. 1983, which resulted in death of decedent, where
Defendants stipulated to Plaintiff's facts.”

Accordingly, the Petition ignores issues raised below
which are critical to petitioner’s position, such as the
existence of “clearly established” law, while advancing
theories which were previously neither pled nor argued.

REASONS FOR DENYING THE PETITION

Petitioner questions the Sixth Circuit’s analysis of her
Fourteenth Amendment substantive due process claim, and
specifically its conclusion that the principles enunciated in
DeShaney v. Winnebago County Department of Social
Services, 489 U.S. 189 (1989) supported the dismissal of her
claim. In DeShaney, supra., the Court rejected the plaintiff's
argument that Joshua DeShaney’s Fourteenth Amendment due
process rights had been violated by the State when it failed to
protect him against his father’s violence. In so holding, the

7

Court observed that the due process clause was “phrased as a
limitation on the State’s power to act, not as a guarantee of
certain minimum levels of safety and security” ; that the clause
“generally confer{red] no affirmative right to governmental
aid, even where such aid may be necessary to secure life,
liberty, or property interests of which the government itself
may not deprive the individual”; and that “[i]f the Due
Process Clause does not require the State to provide its
citizens with particular protective services, it follows that the
State cannot be held liable under the Clause for injuries that
could have been averted had it chosen to provide them.”
DeShaney, 489 U.S., 195, 196-197. The DeShaney Court did
recognize that “in certain limited circumstances the
Constitution imposes upon the State affirmative duties of care
and protection with respect to particular individuals” (489
U.S., 198), but explained that these circumstances involved
situations where the State had either actual or functional
custody of the plaintiff, thereby preventing him from taking
action to protect himself (489 U.S., 200).

Petitioner has never contended that this case falls within
this “custody” exception but, rather, has relied on a “creation
of danger” exception, derived wholly from the DeShaney
Court’s statement that “[w]hile the State may have been aware
of the dangers that Joshua faced in the free world, it played no
part in their creation, nor did it do anything to render him any
more vulnerable to them.” 489 U.S., 201. Premised on these
few words, the Sixth Circuit has recognized an exception to
the general rule enunciated in DeShaney, applicable only
where the State has either created the danger itself or, where,
by its actions, it has placed a plaintiff in a position worse than
she would have been in had there been no State action at all.
Bukowski v. City of Akron, 326 F.3d 702 (6th Cir. 2003);
Cartwright v. City of Marine City, 336 F.3d 487 (6ta Cir.

8

2003).* In the case at bar, the Sixth Circuit applied this
precedent, including the three-part test enunciated in
Cartwright, supra., 336 F.3d, 493:

To show a State-created danger, plaintiff must show:
1) an affirmative act by the state which either created
or increased the risk that the plaintiff would be
exposed to an act of violence by a third party; 2) a
special danger to the plaintiff wherein the state’s
actions placed the plaintiff specifically at risk, as

*‘Other Circuits have also adopted variations of this “state created
danger” exception. For example, in Kennedy v- City of Ridgefield,
439 F.3d 1055, 1062-1064 (9th Cir. 2006), the Ninth Circuit noted
that it had first recognized “danger creation liability” in Wood v.
Ostrander, 879 F.2d 583 (9th Cir. 1989), which liability included
the requirement that the state actors have placed the plaintiff in
danger that she would not otherwise have faced. Similarly, in
Windle v. City of Marion, 321 F.3d 658, 661-662 (7th Cir. 2003),
the Seventh Circuit discussed the “state created danger exception”
and its requirement of an affirmative act that created or increased
the danger faced by the plaintiff. In Davis v. Fulton County, 90
F.3d 1346, 1351 (8th Cir. 1996), the Eighth Circuit noted that it
had recognized a duty to protect “when the state affirmatively
places a particularized individual in a position of danger that she
would not otherwise have faced.” !n Morse v. Lower Merion
School District, 132 F.3d 902, 908 (3rd Cir. 1997), the Third
Circuit expressed its four-part test, which included the requirement
that the state actors have used their authority to create an
opportunity for crime that would not otherwise have occurred. In
Ruiz v. McDonnell, 299 F.3d 1173, 1182-1183 (10th Cir. 2002),
the Tenth Circuit noted its six-part test for satisfying the danger
creation exception, including the requirements that the state actors
created or increased the plaintiff's vulnerability to the danger, and
that the plaintiff be a member of a limited and specifically definable
group.

9

distinguished from a risk that affects the public at
large; and 3) the state knew or should have known that
its actions specifically endangered the plaintiff. * * *

The court below held that these requirements could not be
satisfied in the circumstances of this case. As to the first
requirement (the only one that petitioner addresses), the court
concluded that allegations directed against respondents did not
constitute an affirmative act that either created or increased
the risk to Denise Jones because, although respondents could
have prevented the race from taking place, “[njo evidence
indicates that the drag race would not have proceeded had the
officers never arrived, and no evidence indicates that the
officers’ actions, whether characterized as allowing the race
to proceed or as encouraging it, increased the risk to
spectators at the race in general or to Jones in particular.”
Pet. App. 12. “‘The question is not whether the victim was
safer during the state action, but whether [she] was safer
before the state action than [she] was after it.’” Pet. App. 11-
12. This analysis is wholly consistent with the observation in
DeShaney, supra., 489 U.S., 201: “That the State once took
temporary custody of Joshua does not alter the analysis, for
when it returned him to his father’s custody, it placed him in
no worse position than that in which he would have been in
had it not acted at all.” In the case at bar, Denise Jones was
in no worse position than if the respondents had not acted at
all because, in either case, the drag race would have occurred.
This is not a situation where the race had already been called
off before the officers arrived. Had there been no state action
at all, if the officers had never appeared, it is indisputable that
there would still have been a race.

The Sixth Circuit also held that since Denise Jones was
not specifically at risk, the second requisite for application of
the state created danger exception was not satisfied. As noted

10

by the Court, “[a! special danger exists ‘where the state’s
actions place the victim specifically at risk, as distinguished
from a risk that affects the public at large.’” Pet. App. 20.
The court noted that there were at least 150 persons observing
the race, that respondents had never interacted with Denise
Jones, and that there was no evidence that respondents “had
any reason to know that they were putting her at risk by their
action/inaction that night.” Pet. App. 22.

Petitioner has asked this Court to consider the Sixth
Circuit’s opinion, principally complaining that it should have
considered respondents’ conduct as satisfying the requirement
for “affirmative state action,” but without explaining how she
could overcome the other deficiencies in her claim.

I. The question of Sixth Circuit application of its own
precedent does not warrant Supreme Court review.

Petitioner does not question the propriety of the danger
creation exception as formulated by the Sixth Circuit in
Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir.
1998), Bukowski v. City of Akron, 326 F.3d 702 (6th Cir.
2003) and Cartwright v. City of Marine City, 336 F.3d 487
(6th Cir. 2003). Rather, she complains that the Court did not
properly apply that precedent in this case when it failed to
recognize the respondents’ conduct as “affirmative state
action.” This question was not deemed to merit an en banc
review by the Sixth Circuit, and it does not raise a compelling
issue requiring Supreme Court review.

11

II. Regardless of the Answers to the Questions
Presented in the Petition, Petitioner Cannot
Prevail.

A. The Petition focuses on only one phrase utilized
in the first of a three-part test required for
application of the “danger creation” exception.

While petitioner focuses her attention on the meaning of
“affirmative state action” as used when assessing danger
creation liability, the critical question pertains less to the
characterization of the conduct as “affirmative,” and more to
the question whether that conduct caused or increased the
danger. As noted by the Sixth Circuit, when discussing the
requisite of an affirmative act: “Whether the conduct of the
government officials in some cases should be treated as a
failure to act or as action ‘may be a difficult question in the
abstract,’. . . but we have always treated governmental
conduct as ‘fall{ing}] on the inaction side of the line,’ .. .
when it does not create or increase the risk of peril posed by

the private actor. ... [W]hen state action or inaction ‘neither
increase[s] decedent’s risk of harm nor render[s] her more
vulnerable,’ . . . the plaintiff cannot establish a cognizable

‘affirmative act’.” [citations omitted] Pet. App. 10-11.
Plaintiff does not meaningfully address this critical question,
other than to suggest that the conduct of the private parties,
Reynolds and Atat, should be imputed to respondents.‘

* There was no desire by either thé public or private actors to
deprive petitioner of her constitutional rights, and petitioner’s
allegations of conspiracy and concert of action may not be used to
transform the circumstances of this case into a constitutional tort.
Petitioner has complained below that the respondents’ conduct
constituted a violation of Michigan’s drag racing statute, M.C.L.
257.626a, which renders drag racing a violation of the Motor

12

Indeed, petitioner’s complaint that the Sixth Circuit relied on
an “assumption of risk” analysis misreads the import of the
court’s analysis. It is undisputed that Denise Jones was
voluntarily present at the drag race, and there is no evidence
that her presence was related to the presence of the officers.
Accordingly, it is impossible on this record to conclude that
it was the conduct of the respondents that exposed her to the
dangers attendant to her voluntary presence at the drag race.

Nor does petitioner address the second and third tests
articulated in Sixth Circuit precedent, which require both the
showing of “a special danger to the plaintiff wherein the
Sstate’s actions placed the plaintiff specifically at risk, as
distinguished from a risk that affects the public at large,” as
well as a showing that “the state knew or should have known

Vehicle Code. However, even were petitioner’s interpretation of
Michigan law correct, 42 U.S.C. §1983 provides a remedy for the
violation of rights created by federal law, and the violation of state
statutory or common law does not give rise to a cause of action
under §1983 unless the conduct which violates state law also
implicates federal rights. Collins v. City of Harker Heights, 503
U.S. 115, 119 (1992). Allegations of a conspiracy to violate a
state statute do not state a claim under §1983. As stated by the
10th Circuit in Dixon vy. City of Lawton, 898 F.2d 1443, 1449 (10th
Cir. 1990), “. . . in addition to proving an agreement, plaintiff was
required to prove an actual deprivation of a right ‘secured by the
Constitution and laws.’ . . . This is because the essence of a §1983
claim is the deprivation of the right rather than the conspiracy.”
The complained of agreement must be one intended to violate
another’s constitutional right and not simply an agreement to act
together in some fashion. An agreement to allow, encourage, or
even participate in a drag race on the public streets would not
constitute a conspiracy to violate someone’s constitutional rights
because drag racing is not, itself, constitutionally tortious, and
there was no intent or agreement to injure another.

13

that its actions specifically endangered the plaintiff.” The
Sixth Circuit concluded that the record failed to support either
of these requisites which, standing alone, supported the
dismissal of petitioner’s §1983 claim. Petitioner’s failure to
address these issues also support the denial of her pending
Petition.

B. The Petition does not address the existence of
the “clearly established law” required to
overcome respondents’ qualified immunity.

Even when a relevant constitutional right is implicated by
a plaintiff's allegations, government officials sued pursuant to
42 U.S.C. §1983 are entitled to a dismissal pursuant to the
doctrine of qualified immunity unless the plaintiff is able to
demonstrate that the right was clearly established at the time
of its alleged deprivation. Anderson v. Creighton, 483 U.S.
635 (1987); Saucier v. Katz, 533 U.S. 194 (2001); Brousseau
v. Hagen, 543 U.S. 194 (2004).° The Sixth Circuit held that
petitioner was unable to do so in this case.

Even if there were doubt about these conclusions, it is
clear at a minimum that Jones has not shown a
violation of constitutional rights that were ‘clearly
established’ at the time of the officers’ action/inaction.
No authority from our circuit extant at the time of the

° In Brousseau, supra., 543 U.S., 599, the Court explained that
“[i]f the law at that time did not clearly establish that the officer’s
conduct would violate the Constitution, the officer should not be
subject to liability or, indeed, even the burdens of litigation.”
Moreover, quoting from Saucier, supra., 533 U.S., 201, the
Brousseau Court reiterated, 543 U.S., 599, “[i}t is important to
emphasize that this inquiry ‘must be undertaken in light of the
specific context of the case, not as a broad general proposition.’”

14

incident even begins to suggest that the 150 people at
the drag race would satisfy the “special danger”
requirement. And no authority from our circuit
supports the theory that the officers committed a
cognizable affirmative act when they did not create or
increase the danger to Denise Jones that she
voluntarily \undertook before they arrived.

Pet. App. 23, Yet, petitioner has neither presented the
question of “clearly established law” as a Question Presented
on her Petition, nor developed any reasoned argument
concerning it. Accordingly, even if this Court were to
determine that the circumstances of this case implicated a
substantive due process violation, respondents would be
entitled to summary judgment premised on their qualified
immunity because that right was not clearly established on
October 8, 2001, and, as the Sixth Circuit held, petitioner
failed to sustain her burden of demonstrating otherwise.

C. The Petition does not address respondents’
asserted res judicata defense.

On December 20, 2001, petitioner brought a state court
action against respondents, asserting claims based on the same
underlying facts and conduct she alleged in this case. Ct.
App. JA 161. That state litigation resulted in a final judgment
on August 8, 2003, which judgment was affirmed on appeal.
Res. App. A at la. Thus, in their motion for summary
judgment, respondents argued that even were petitioner
otherwise able to proceed with her federal claim, it was
barred by the doctrine of res judicata, which precludes a party
from splitting her cause of action and bars subsequent
relitigation based on the same transaction or event. Pierson
Sand and Gravel, Inc. v. Keeler Brass Co, 460 Mich. 372,
380; 596 N.W.2d 153 (1999). Having found no viable §1983

15

claim, neither of the courts below had need to consider this
alternate basis supporting summary judgment. However, the
Petition has ignored this affirmative defense, which precludes
the relief she seeks in her Petition.

Federal courts honor the res judicata effects of state court
judgments under the full faith and credit statute, 28 U.S.C.
§1738. To that end, the preclusive effect of a prior state court
judgment is governed by the law of that state. Michigan law
applies the broad rule of res judicata, which precludes “a
subsequent litigation based upon the same transaction or
events. ...” Pierson Sand and Gravel, supra., 460 Mich.,
380, 596 N.W.2d, 157. “The test for determining whether
two claims arise out of the same transaction and are identical
for res judicata purposes is whether the same facts or evidence
are essential to the maintenance of the two actions.” Jones v.
State Farm Mutual Auto Ins. Co., 202 Mich. App. 393, 401;
509 N.W.2d 824, 834 (1994). Further, in Michigan, “[r]es
judicata applies when (1) the prior action was decided on the
merits, (2) the decree in the prior decision was a final
decision, (3) both actions involved the same parties or their
privies, and (4) the matter in the second case was or could
have been resolved in the first.” Ditmore v. Michalik, 244
Mich. App. 569, 576; 625 N.W.2d 462, 466 (2001). Each of
these elements was satisfied in this case, and the same facts
and evidence were essential to the maintenance of both
actions.

The Petition fails to address this affirmative defense which
defeats petitioner’s claim.

16

Ill. The Sixth Circuit’s Decision Does Not Conflict
With the Analyses of the Second, Fourth or
Ninth Circuits.

Petitioner contends that the Sixth Circuit’s application of
its danger creation exception, and specifically its analysis of
the conduct that constitutes an “affirmative act”, is
inconsistent with opinions of the Second, Fourth, and Ninth
circuits, citing Kennedy v. City of Ridgefield, 411 F.3d 1134
(9th Cir. 2006); Dwares v. City of New York, 985 F.2d 94
(2nd Cir. 1993), and Meeker v. Edmundson, 415 F.3d 317
(4th Cir. 2005).° Although not specifically referenced in her
Questions Presented, petitioner also cites the Seventh circuit
opinion in Reed v. Gardner, 986 F.2d 1122 (7th Cir. 1993).
However, these decisions are distinguishable on their facts.
In Kennedy, supra., 411 F.3d, 1063, the Ninth Circuit found
that the state actor had “affirmatively created an actual,
particularized danger Kennedy would not otherwise have
faced” when he failed to warn that plaintiff's neighbor had
been advised of plaintiff's allegations of child molestation.
Thus, the state action had, at least, altered the risk presented
by the neighbor and deprived plaintiff of the opportunity to
take precautions. In Dwares, the police increased an existing
danger of assaults on individuals exercising their First
Amendment rights, while in Reed, the police either created or
increased the danger that the drunk passenger would drive the

® Perhaps notably, petitioner does not contend that the legal
principles enunciated by the Sixth Circuit are in conflict with legal
principles enunciated by other circuits, but merely asserts that other
circuits would have applied these principles differently. Even were
it true, this would not present a compelling question for this
Court’s review.

17

car after they removed the sober driver.’ In the case at bar,
the respondents’ presence at the scene of the drag race did
neither. Likewise, petitioner’s citation of Meeker is
inapposite. Meeker, supra., did not involve application of a
rule regarding danger creation liability, but was a direct injury
claim, where, as explained by the Fourth Circuit, the
defendant state actor had actively employed a private party to
violate the plaintiff's constitutional right to be free of
malicious corporal punishment. “. . . Meeker’s complaint
asserts that Coach Edmundson used students as his
‘instruments’ to abuse Meeker.” 415 F.3d, 322.°

” Responding to petitioner’s citation of Dwares, supra., and Reed,
supra., the Sixth Circuit appropriately noted that “[bJoth cases . . .
involved victims who faced little danger before the police intervened
and greater peril after the police acted.” Pet. App. 16-17.

* Indeed, both Dwares and Meeker are otherwise distinguishable
from the case at bar because, whether viewed from a danger creation
perspective, or a direct injury analysis, in both cases the state actors
had been the direct cause of a constitutional violation by soliciting or
encouraging another to engage in conduct that, if engaged in by a
state actor, would have been unconstitutional. In Dwares, supra.,
the police officers encouraged private parties to assault the plaintiff
while he was exercising his First Amendment rights. Thus, the
officers were directly liable for the First Amendment violation.
Likewise, Meeker, supra., concerned the constitutional right to be
free from malicious corporal punishment, and the liability of the
defendant coach was based on his direct liability for his role in
instigating and directing the beating administered by others. In both
the Dwares and Meeker cases, the encouraged conduct was, itself,
violative of the plaintiff's constitutional rights, and the state actors
had actively employed a private party to accomplish this end on their
behalf. In the case at bar, the encouraged conduct was simply drag

racing. Nor were the private parties engaged as the alter egos of the
officers.

18

To the extent that the danger creation requirements differ
from circuit to circuit, the differences are not meaningful to
the circumstances of the case at bar, where petitioner is
unable to satisfy the minimum requirement that the conduct of
the state actor serve to either create a new danger, or increase
the risk of an existing one.

IV. Petitioner Did Not Present or Preserve a
“Direct Injury” Claim in the Lower Courts,
Which Claim Could Not, in Any Event,
Succeed.

In its Opinion, the Sixth Circuit distinguished the
circumstances of this case from_“direct injury” claims
controlled by County of Sacramento v Lewis, 523 U.S. 833
(1998):

* * * Had the officers organized or participated in this
race, the issue would cease to turn on whether they
were responsible for harm caused by a private actor
and would turn instead on whether they had caused the
harm themselves. See County of Sacramento v Lewis,
523 U.S. 833, 849, 118 S.Ct. 1708, 140 L.Ed.2d
1043 (1998) (noting that officers will be liable under
the Due Process Clause for injuries caused by
“grossly negligent” or “reckless” conduct that
“shock[s] the conscience”).

Under these circumstances, we would have no reason
to determine whether the officers had increased the
risk of harm to the victim because they would be the
source of that risk. Here, however, Jones has not
alleged that the officers had anything to do with the
organization of the race or that they participated in it.
All of which explains why plaintiff has not presented

19

this case as one in which the officers directly harmed
Denise Jones but rather as one in which they allowed
private actors to harm her. * * *

* * *

* * * While we decline to extend the [siate created
danger] doctrine in this case, nothing in our decision
prevents future litigants from arguing what the
plaintiff has not argued here — that the alleged actions
of the officers converted the private misconduct of the
drivers into public misconduct and in the process
converted this claim into a direct-injury constitutional

claim under the Lewis, as opposed to DeShaney, line
of cases.

Pet. App. 17-18, 25.

In apparent response to this discussion, petitioner now
asserts that which was never asserted before — that
respondents “participated in the planning and preparation
taking place for the illegal drag race” and “actively
participated in the illegal drag race”. Pet. at2. To the extent
that petitioner seeks now to convert her claim into a direct
injury claim under Lewis, she has failed to preserve it in
either of the courts below. Moreover, and as the Sixth Circuit
observed, there are neither allegations nor facts to support
such a claim, and plaintiff's reliance on tort principles does
not cure this defect or advance her legal position.

As noted in Collins v. City of Harker Heights, 503 U.S.
115, 125 (1992), the Supreme Court has “always been
reluctant to expand the concept of substantive due process.”
However, in recognition of the need to protect the individual
from the arbitrary exercise of unrestrained governmental

20

power, the Court has recognized the existence of botli
procedural and substantive due process rights. The
substantive rights are quite circumscribed, as the Court
explained in Lewis, supra., 523 U.S., 846:

Our cases dealing with abusive executive action have
repeatedly emphasized that only the most egregious
official conduct can be said to be “arbitrary in the
constitutional sense,” Collins v Harker Heights, 503
U.S., at 129, thereby recognizing the point made in
different circumstances by Chief Justice Marshall,
“*that it is a@ constitution we are expounding.’” * * *
Thus, in Collins v Harker Heights, for example, we
said that the Due Process Clause was intended to
prevent government officials “‘ “from abusing [their]
power, or employing it as an instrument of
oppression.”’” * * * [citations omitted]

Of course, the circumstances of the case at bar are not
about the exercise of governmental power, but about the
failure to exercise such power. Thus, the appropriate analysis
is the one arguably provided by DeShaney, supra.

Moreover, noting that “conduct intended to injure insome _
way unjustifiable by any government interest is the sort of
official action most likely to rise to the conscience-shocking
level” (523 U.S., 849), the Lewis Court recognized that some
lesser standard might apply in some circumstances, but
cautioned against simply transforming tortious conduct into
unconstitutional conduct, 523 U.S., 848:

* * * Thus, we have made it clear that the due process
guarantee does not entail a body of constitutional law
imposing liability whenever someone cloaked with
State authority causes harm. In Paul v Davis, 424

21

U.S. 693, 701; 96 S.Ct. 1155, 1160-1161; 47
L.Ed.2d 405 (1976), for example, we explained that
the Fourteenth Amendment is not a “font of tort law
to be superimposed upon whatever systems may
already be administered by the States,” and in Daniels
v Williams, 474 U.S., at 332, we reaffirmed the point
that “{o]ur 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 liability for injuries that
attend living together in society.” * * *

Thus, as the Court pointed out in DeShaney, 489 U.S.,
202, “the Due Process Clause of the Fourteenth Amendment
. . . does not transform every tort committed by a state actor
into a constitutional violation.” Yet, and as evident in
petitioner’s repeated reference to principles of tort law, that
is precisely the effect of the petitioner’s argument in this case.

4

CONCLUSION

For the foregoing reasons, the Petition for Writ of
Certiorari should be denied.

22

Respectfully submitted,

GARAN LUCOW MILLER, P.C.

ROSALIND ROCHKIND (P23504)
Counsel of Record

JOHN J. GILLOOLY (P41948)

1000 Woodbridge Street

Detroit, MI 48207-3192

Telephone: 313.446.5522

Attorneys for Respondents

Dated: December 13, 2006.

APPENDIX

App. la

APPENDIX A

STATE OF MICHIGAN
COURT OF APPEALS

No. 250616
LC No. 01-143011-NI

[Filed April 7, 2005]

DOROTHY JONES, as Personal Representative of
the Estate of DENISE MICHELLE JONES,
Deceased,

Plaintiff-Appellant,

v

AARON REYNOLDS, MUSTAPHA ATAT, a/k/a

CRAZY MOE MUSTAPHA, a/k/a MOE ATAT,

and MARSHA DESIREE HUMPHREY,
Defendants,

and

CITY OF LINCOLN PARK, WILLIAM KISH III,
JOSEPH LAVIS, DOUGLAS MUNCEY, and
MOHAMED NASSER.

Defendants-Appellees.

Before: Talbot, P.J., and Jansen and Gage, JJ.

Nee meee eee eee Oe ee”

App. 2a
PER CURIAM.

Plaintiff, Dorothy Jones, personal representative of the
estate of Denise Michelle Jones (hereinafter “decedent”),
appeals as of right from a default judgment entered against
Aaron Reynolds, Mustapha Atat, and Marsha Desiree
Humphrey for $25 million.’ The default judgment was the
final order for the proceeding, and plaintiff's appeal is based
on the following orders involving defendants Lincoln Park
and Lincoln Park Police Officers William Kish III, Joseph
Lavis, Douglas Muncey, and Nasser Mohamed”; (1) an order
only allowing plaintiff to amend its complaint with state
claims, denying plaintiff's motion to compel documents, and
setting aside a default entered against defendants; (2) an order
granting defendants’ motion for summary disposition and
denying plaintiff's motion for summary disposition; and (3)
an order granting Lincoln Park’s motion for summary
disposition as to plaintiffs original complaint.

' Reynolds and Atat were the drivers of the vehicles involved in the
race leading to decedent’s death, and Humphrey owned the vehicle
driven by Reynolds. On April 28, 2003, Reynolds plead guilty to
charges of involuntary manslaughter, failure to stop at the scene of
an accident resulting in death or injury, two counts of felonious
driving, and one count of drag racing in Wayne County Circuit
Court.

* Throughout this opinion Lincoln Park, Kish, Lavis, Muncey, and
Nasser will collectively be referred to as defendants, singularly
Lincoln Park will be referred to by name, and Kish, Lavis,
Muncey, and Mohamed will collectively be referred to as
“defendant police officers” and individually by name.

App. 3a

At approximately 1:45 a.m. on October 8, 2001,
defendant police officers drove to the intersection of Fort
Street and Outer Drive, and parked at the Lincoln Park Palace
Party Store. Reynolds and Atat had met to drag race and
wagers had been made. From the Lincoln Park Palace Party
Store defendant police officers observed a large group of
people who had gathered across Outer Drive in Detroit.
Plaintiff alleges that defendant police officers played rap
music over their patrol car’s public address system to
encourage a drag race, indicated that they would not arrest
anyone, and gave the “go ahead” for the race. Reynolds and
Atat started northbound on Fort Street. The car driven by
Reynolds veered and fatally struck decedent, severing her leg,
and injured two other bystanders.

Plaintiff filed a complaint against Reynolds, Humphrey,
Atat, and defendants. The circuit court entered some orders
staying the proceedings due to the criminal proceedings
against defendant police officers. On March 28, 2003, after
a hearing, the circuit court granted summary disposition in
favor of Lincoln Park, finding that defendant police officers
were not the proximate cause of decedent’s injuries, as
proximate cause is defined in Robinson v City of Detroit, 463
Mich 439, 613 NW2d 307 (2000). But the circuit court
granted plaintiff's motion to file an amended complaint.

Plaintiff filed its first amended complaint alleging in part:
(1) that defendants should be liable for conspiracy to violate

* On March 3, 2003, Officers, Nasser, Muncey, and Lavis entered
a plea of no contest to neglect of duty, and all charges were
dismissed against Kish.

App. 4a

_MCL 257.626a (the drag racing statute); (2) that defendant
police officers should be liable under MCL 691.1407(2)(C);
(3) defendants were liable for common law gross negligence
based on the wanton and willful conduct of defendant police
officers; (4) Lincoln Park was liable under MCL 691.1405;
(5) defendants were liable for federal constitutional violations
under 42 USC 1983; and (6) defendants were liable for
nuisance per se. At a hearing, the circuit court informed
plaintiff there could not be any federal claims in the amended
complaint because of time issues, thus, restricting the
amended complaint. Subsequently, the trial court ordered
that: (1) plaintiff be permitted to file an amended complaint
alleging state law claims against defendants; (2) plaintiff's
federal claims be stricken and withheld from filing until the
state claims are heard; (3) the defaults entered against
defendants be set aside; and (4) plaintiff's motion to compel
Lincoln Park to produce documents and things is denied.
Plaintiff filed an amended complaint per the circuit court
order to only include state law claims, which changed the last
complaint only by removing the federal claims. Another
hearing was conducted on a motion for summary disposition
filed by defendants’ and plaintiff. The circuit court did not
think that nuisance per se was one of the exceptions to
governmental immunity and again noted that defendant police
officers were not the proximate cause of decedent’s injuries,
thus, granted defendants’ motion for summary disposition and
denied plaintiff's motion for summary disposition.

I]

Plaintiff argues, on appeal, that governmental immunity
under MCL 691.1407(2)(c), as interpreted by Robinson,
supra, illegally provides immunity to government employees
giving them a vehicle to conspire to immunize themselves.
We disagree.

App. 5a

Plaintiff failed to present this issue to the trial court.
Generally, constitutional challenges to a statute may not be
raised for the first time on appeal. Brookdale Cemetery Ass’n
v Lewis, 342 Mich 14, 18; 69 NW2d 176 (1955); Lumber
Village, Inc v Siegler, 135 Mich App 685, 692; 355 NW2d
654 (1984). In addition, plaintiff has not properly presented
the issue on appeal. It is difficult to ascertain what plaintiff's
exact argument is with regard to this issue. Seemingly,
plaintiff is challenging the constitutionality of the Michigan
Supreme Court’s interpretation of the governmental immunity
statute in Robinson, supra, because it does not account for
conspiracy like 42 USC 1985.‘ Plaintiff provides no support
for why Michigan’s governmental immunity statute must take
conspiracy into account. To properly present an appeal, an
appellant must appropriately argue the merits of the issues she
identifies in her statement of the questions involved.
Richmond Twp v Erbes, 192 Mich App 210, 220; 489 NW2d
504 (1992), overruled in part on other grounds in Bechtold v
Morris , 443 Mich 105; 503 NW2d 654 (1993). The appellant
may not merely announce her position and leave it to this
Court to discover and rationalize the basis for her claims,
Wilson v Taylor, 457 Mich 232, 243; 577 NW2d 100 (1998);
Ambs v Kalamazoo County Road Comm, 255 Mich App 637,
650; 662 NW2d 424 (2003), nor may she give issues cursory

* “In order to establish a claim under 42 USC 1985(3) plaintiffs
must prove: (1) the existence of a conspiracy, (2) intent to deny
plaintiffs the equal protection of the laws or of equal privileges and
immunities under the laws, (3) injury or deprivation of a federally
protected right of plaintiffs, (4) an overt act in furtherance of the
object of the conspiracy, and (5) some racial or other class-based
invidiously discriminatory animus behind the conspirators’
actions.” Mitchell v Cole, 176 Mich App 200; 439 NW2d 319
(1989) citing Griffin v Breckenridge, 403 US 88, 102-103; 91 SCt
1790; 29 L Ed 2d 338 (1971).

App. 6a

treatment with little or no citations of supporting authority,
Goolsby v Detroit, 419 Mich 651, 655 n 1; 358 NW2d 856
(1984), Silver Creek Twp v Corso, 246 Mich App 94, 99; 631
NW2d 346 (2001). Argument must be supported by citation
to appropriate authority or policy. MCR 7.212(C)(7),
Peterson Novelties, Inc v City of Berkley, 259 Mich App 1,
14; 672 NW2d 351 (2003). An appellant’s failure to properly
address the merits of her assertion of error constitutes
abandonment of the issue. Yee v Shiawassee County Bd of
Comm’rs, 251 Mich App 379, 406; 651 NW2d 756 (2002).
Thus, plaintiff has abandoned this issue on appeal.

Nonetheless, this argument is without merit. This Court
and the Michigan Supreme Court have found that MCL
691.1407 is not unconstitutional on numerous occasions,
McCann v State of Michigan, 398 Mich 65, 77, 80; 247
NW2d 521 (1976), Ryan, J., concurring; Pittman v City of
Taylor, 398 Mich 41; 247 NW2d 512 (1976); Allen v Dep't
of Mental Health, 79 Mich App 170; 261 NW2d 247 (1977);
Wojtasinski v Saginaw, 74 Mich App 476, 254 NW2d 71
(1977). Michigan’s governmental immunity statute is not in
conflict with 42 USC 1985, and Michigan’s governmental
iivimunity statutes does not prevent plaintiff from bringing a
federal 42 USC 1985 claim, instead, only limits plaintiff's
ability to bring state tort claims. See Borg-Warner
Acceptance Corp v Dep't of State, 433 Mich 16, 19; 444
NW2d 786 (1989); Ross v Consumers Power Co (On
Rehearing), 420 Mich 567, 647-648; 363 NW2d 641 (1984).
Plaintiff may bring suit against a municipality pursuant to 42
USC 1985, thus, plaintiff's contention is without merit. See
Jones v Powell, 462 Mich 329, 336-337; 612 NW2d 423
(2000).

Plaintiff's remaining contentions seem to be based on
policy. Where the language of a statute is clear, it is not the

App. 7a

role of the judiciary to second-guess a legislative policy
choice; a court’s constitutional obligation is to interpret, not
rewrite, the law. See Hanson v Bd of Co Rd Comm'rs of
Mecosta Co, 465 Mich 492, 504; 638 NW2d 396 (2002). A
court’s function in interpreting a statute is not “to
independently assess what would be most fair or just or best
public policy,” but “to discern the intent of the Legislature
from the language of the statute it enacts.” /d. The Supreme
Court has clarified how MCL 691.1407 is to be applied in
Robinson, supra, and this Court is bound to follow our
Supreme Court’s decisions. Boyd v W G Wade Shows, 443
Mich 515, 523; 505 NW2d 544 (1993); Lopez v General
Motors Corp, 224 Mich App 618, 630; 569 NW2d 861
(1997). For the above reasons, plaintiff has not properly
presented this argument on appeal and the argument is without
merit. -

iil

Plaintiff's next issue on appeal is that the trial court erred
in granting defendants’ motions for summary disposition
pursuant to governmental immunity and denying plaintiff's
motion for summary disposition where defendant police
officers were grossly negligent and the proximate cause of
decedent’s injuries. We disagree.

A. Standard of Review

This Court reviews decisions on motions for summary
disposition de novo. Roberts v Mecosta Co Gen Hosp (After
Remand), 470 Mich 679, 685; 684 NW2d 711 (2004).
Apparently, the circuit court granted defendant’s motion for
summary disposition pursuant to MCR 2.116(C)(7), which
permits summary disposition where a claim is barred by
governmental immunity. In evaluating whether summary

App. 8a

disposition should have been granted under MCR
2.116(C)(7), this Court “considers all documentary evidence
submitted by the parties, accepting as true the contents of the
complaint unless affidavits or other appropriate documents
specifically contradict them.” Fane v Detroit Library Comm,
465 Mich 68, 74; 631 NW2d 678 (2001); MCR 2.116(G)(5).
Summary disposition should not be granted unless no factual
development could provide a basis for recovery. Simmons v
Apex Drug Stores, 201 Mich App 250, 252; 506 NW2d 562
(1993).

Plaintiff's cross motion requested summary disposition
pursuant to MCR 2.116(C)(9) and (10). MCR 2.116(C)(9)
provides that a motion for summary disposition may be raised
on the ground that the opposing party has failed to state a
valid defense to the claim asserted against him. The motion
tests the sufficiency of a defendant’s pleadings alone, and all
well-pled allegations are accepted as true. Allstate Ins Co v
Morton, 254 Mich App 418, 421; 657 NW2d 181 (2002).
Summary disposition is proper if the defenses are so clearly
untenable as a matter of law that no factual development could
possibly deny a plaintiff's right to recovery. /d. at 421.
Under MCR 2.116(C)(10), a party may move for dismissal of
a claim based on the assertion that there is no genuine issue
with respect to any material fact and the moving party is
entitled to judgment or partial judgment as a matter of law.
The motion tests the factual support for a claim, and when
reviewing the motion, the court must consider all of the
documentary evidence in the light most favorable to the
nonmoving party. Maiden v Rozwood, 461 Mich 109, 120;
597 NW2d 817 (1999).

App. 9a

B. Proximate Cause

The circuit court granted defendants’ motions for
summary disposition and denied plaintiff's motion for
summary disposition finding that defendants were immune
under MCL 691.1407 because defendant police officers’
conduct was not the proximate cause of decedent’s injuries.
We find that summary disposition was properly entered in
favor of defendants based on governmental immunity under
MCL 691 .1407(2) because defendant police officers were not
“the” proximate cause of decedent’s injuries. Because
defendants stated a valid defense and plaintiff is not entitled
to judgment as a matter of law, plaintiff's motion for
summary disposition was properly denied pursuant to MCR
2.116(C)(9) and (10).

MCL 691.1407(2) provides:

Except as otherwise provided in this section, and
without regard to the discretionary or ministerial
nature of the conduct in question, each officer and
employee of a governmental agency . . . is immune
from tort liability for an injury to a person or damage
to property caused by the officer, employee, or
member while in the course of employment or service
.. . If all of the following are met:

(a) The officer, employee, member, or volunteer
is acting or reasonably believes he or she is acting
within the scope of his or her authority.

(b) The governmental agency is engaged in the
exercise or discharge of a governmental function.

App. 10a

(c) The officer’s, employee’s, member’s, or
volunteer’s conduct does not amount to gross
negligence that is the proximate cause of the injury or
damage. As used in this subdivision, “gross
negligence” means conduct so reckless as to
demonstrate a substantial lack of concern for whether
an injury results.

Whether a governmental employee was acting within the
course of his employment depends on the existence of an
employment relationship and the circumstances of the work
environment created by the relationship, including the
temporal and spatial boundaries established. Backus v
Kauffman (On Rehearing), 238 Mich App 402, 407-409; 605
NW2d 690 (1999). And, whether the employee was acting
within the scope of his authority depends on the reasonable
power delegated to him to accomplish the business of his
employer under the circumstances. /d.

There appears to be no dispute that defendant police
officers were within the course of their employment and
within the scope of their authority. The dispute is whether
defendant police officers were the proximate cause of
decedent’s injuries. The circuit court granted summary
disposition finding that defendant police officers were not the
proximate cause of decedent’s injuries and death. Plaintiff
argues that the gross negligence of defendant police officers
was the proximate cause of decedent’s injuries because it was
part of a chain that was not broken.

Governmental employees are immune from liability for
injuries they cause during the course of their employment if
they are acting within the scope of their authority, if they are
engaged in the discharge of a governmental function, and if
their “conduct does not amount to gross negligence that is the

App. lla

proximate cause of the injury or damage.” Robinson, supra,
at 462. To be the proximate cause of an injury, gross
negligence of a government employee that subjects him to
liability must be “the one must immediate, efficient and direct
cause” preceding the injury. /d.; Tarlea v Crabtree, 263
Mich App 80, 92; 687 NW2d 333 (2004) (finding that the
defendants’ conduct was not the proximate cause of the
plaintiff's death due in part to heat stroke where the plaintiff
had the option to not participate in a football-camp run or to
stop and rest during the run). In Robinson, supra at 462, our
Supreme Court provided:

{Rlecognizing that “the” is a definite article, and
“cause” is a singular noun, it is clear that the phrase
“the proximate cause” contemplates one cause. Yet,
meaning must also be given to the adjective
“proximate” when juxtaposed between “the” and
“cause” as it is here. We are helped by the fact that
this Court long ago defined “the proximate cause” as
“the immediate efficient, direct cause preceding the
injury.” Stoll v Laubengayer, 174 Mich 701, 706;
104 NW 532 (1913). The Legislature has nowhere
abrogated this, and thus we conclude that in MCL
691 .1407(2)(c); MSA 3.996(107)(2)(c) the Legislature
provided tort immunity for employees. of
governmental agencies unless the employee’s conduct
amounts to gross negligence that is the one most
immediate, efficient, and direct cause of the injury or
damage, i.e., the proximate cause.

Reynolds and Atat were racing vehicles and accelerating
at a high speed when the vehicle driven by Reynolds veered
off into a crowd of onlookers and hit decedent, severing her
leg, causing her to bleed to death. In a light most favorable
to plaintiff, defendant police officers sanctioned and condoned

App. 12a

the race and played rap music over the public address system
of their police vehicles to encourage a competitive
atmosphere. Plaintiff argues that defendant police officers’
overt actions were the proximate cause because the race
would not have occurred but for defendant police officers’
overt actions, which were all a part of one chain of events.

Applying the Robinson standard, in this case, the impact
of the vehicle driven by Reynolds with decedent’s body was
“the one most immediate, efficient and direct cause” of
decedent’s injuries and death. See Curtis v Flint, 253 Mich
App 555, 563; 655 NW2d 791 (2002). Clearly, the one most
immediate, efficient, and direct cause of decedent’s death was
Reynolds’ vehicle striking decedent. Defendant police
officers’ conduct, assuming gross negligence, while a cause
of decedent’s death, it was but one cause, and was therefore,
not “the one most immediate, efficient, and direct cause” as
required by Robinson. Id. The second most direct cause
would be.decedent gathering at the particular location. Even
if plaintiff had established the necessary level of negligence,
the claims against defendant police officers were factually
insufficient to overcome immunity because defendant police
officers were not the proximate cause of decedent’s injuries or
death. See Curtis, supra at 563. As such, Lincoln Park is not
Vicariously liable.

For the above reasons, the circuit court did not err in
granting defendants’ motion for summary disposition based on
the fact that defendants were not “the” proximate cause of
decedent’s death, and denying plaintiff's motion for summary
disposition when defendants stated valid defenses and plaintiff
was not entitled to judgment as a matter of law. Because the
alleged actions and inactions of defendant police officers were
not “the” proximate cause of decedent’s injuries or death, it

App. 13a

is unnecessary to address whether defendant police officers
were grossly negligent. See Robinson, supra.

C. Willful and Wanton Misconduct

Plaintiff also argues that she has alleged willful and
wanton misconduct in addition to gross negligence, and that
in order to establish a claim only needs to show that defendant
police officers were “a” proximate cause. However, plaintiff
has provided no relevant support for this argument and we
have found no support for the argument.

Plaintiff does not raise the willful or wanton issue in the
statement of questions presented. The appellant must identify
her issues in her brief in the statement of questions presented.
MCR 7.212(C)(5), Grand Rapids Employees Independent
Union v Grand Rapids, 235 Mich App 398, 409-410; 597
NW2d 284 (1999). Ordinarily, no point will be considered
which is not set forth in the statement of questions presented.
Caldwell vy Chapman, 240 Mich App 124, 132; 610 NW2d
264 (2000). Further, plaintiff has not presented any support
for the contention that willful and wanton conduct is an
exception from governmental immunity that only requires a
showing of “a” proximate cause. Plaintiff cites Gibbard v
Cursan, 225 Mich 311; 196 NW 328 (1923)
(nongovernmental negligence case describing instructions for
contributory negligence) and Burnett v Adrian, 414 Mich 448;
326 NW2d 810 (1982) (regarding a recreational use law that
authorized recovery for gross negligence or will and wanton
conduct), neither applying willful misconduct as an exception
to governmental immunity. To properly present an appeal, an
appellant must appropriately argue the merits of the issues she
identifies in her statement of the questions involved.
Richmond Twp, supra at 220. The appellant may not merely
announce her position and leave it to this Court to discover

App. 14a

and rationalize the basis for her claim 3, Wilson, supra at 243;
Ambs, supra at 650, nor may she give issues cursory
treatment with little or no citation of supporting authority,
Goolsby, supra at 655 n 1; Silver Creek Twp, supra at 99.
Argument must be supported by citation to appropriate
authority or policy. MCR 7.212(C)(7), Peterson Novelties,
Inc, supra at 14. An appellant’s failure to properly address
the merits of her assertion of error constitutes abandonment
of the issue. Yee, supra at 406.

Regardless, we have found no authority supporting
plaintiff's contention that when willful and wanton conduct is
involved defendants only need to be “a” proximate cause.
We have found no such exception to governmental immunity.
To the contrary, in Young v Robin, 122 Mich App 84, 87; 329
NW2d 430 (1982), this Court held that “We need not address
the defendants’ contention that the trial court erred in finding
that there existed a genuine issue of fact as to whether the
State troopers were guilty of willful and wanton misconduct,
since conduct falling short of an intentionally wrongful act is
not an exception to governmental immunity.” Thus, this
claim was not even @ valid exception to governmental
immunity prior to the July 1986 amendments to MCL
691.1407. See Sudui vy Hamtramck, 221 Mich App 455, 458
(Corrigan, J.), 480-481 (Murphy, J.); 562 NW2d 478 (1997).

We find that plaintiff has abandoned her argument with
regard to willful and wanton conduct, and the argument is
without merit.

D. Nuisance Per Se
Plaintiff contends that her motion for summary disposition

should have been granted and Lincoln Park’s denied based on
nuisance per se. The circuit court found that Lincoln Park

App. I5a

was immune from a nuisance per se claim. We find that
plaintiff has failed to present a question of fact constituting a
nuisance per se because a car racing is not a nuisance at all
times, without regard to the care with which it is conducted.

Generally, governmental agencies are granted statutory
immunity from tort liability unless otherwise provided in the
act. MCL 691.1401 et seq; see also Haaksma v Grand
Rapids, 247 Mich App 44, 52; 634 NW2d 390 (2001).
However, it is not clear whether nuisance per se is firmly
recognized as an exception to governmental immunity. See
(Li v Feldt After Second Remand), 439 Mich 457, 477; 487
NW2d 127 (1992), overruled on other grounds by Pohutski v
Allen Park, 465 Mich 675; 641 NW2d 219 (2002) (where the
Supreme Court commented that “regardless of whether
nuisance per se might qualify as an exception to governmental
immunity,” the plaintiffs in the cases before it did not present
nuisance per se claims); McDowell v Detroit, 264 Mich App
337, 346-347; 690 NW2d (2004). Nonetheless, even if
nuisance per se is a recognized exception plaintiff has,
nevertheless, failed to establish facts amounting to a nuisance
per se.

This Court in McDowell, supra, recently provided the
following with regard to nuisance per se:

“[A] nuisance per se is an activity or condition which
constitutes a nuisance at all times and under all
circumstances, without regard to the care with which
it is conducted or maintained.” Li v Feldt (After
Second Remand), 439 Mich 457, 476-477; 487 NW2d
127 (1992)(opinion by Cavanagh, C.J.). In order to
meet the definition of a nuisance per se, the condition
must be unreasonable by its very nature and must not
be predicated on a lack of case. /d. at 477. Pursuant

App. l6a

to this definition, our Supreme Court has stated that
neither an- improperly timed traffic light nor the
maintenance of a holding pond could be considered
“an intrinsically unreasonably or dangerous activity,
without regard for care or circumstances .
[because] both activities serve obvious and beneficial
public purposes and are clearly capable of being
conducted in such a way as not to pose any nuisance
at all.” /d.

A nuisance per se is not predicated on the want of care, but is
unreasonable by its very nature. Li, supra at 477.

In the present case, a drag race was at issue. Plaintiff
relies upon the following deposition testimony of Lincoln
Park Police Chief Kish:

Q. If the facts show in this case that there were two
Mustangs that were designed for drag racing,
propelled by nitrous oxide, on a public street,
would you consider that to be a dangerous activity
at all times, under any circumstances?

A. Yes.

Q. Similarly, using those types of vehicles on a public
street that I’ve described, would you consider that
to be an inherently dangerous activity?

A. Yes.

Q. Would you agree that drag racing two Mustangs
modified to consume nitrous oxide, as the

App. 17a

evidence will show in this case, on a public street,
is an intrinsically unreasonably dangerous activity
without regard for care or circumstances?

A. Yes.

Plaintiff contends that Lincoln Park, based on the testimony
of Chief Kish, acknowledges that drag racing is a nuisance per
se.

We find that a nuisance per se does not exist in this case.
Plaintiff contends that a nuisance per se exists because
“conducting a race on October 7, 2001, at approximately 1:30
A.M., in the morning, when most people are presumably
asleep, this ‘drag race’ activity being conducted on a public
{[s]treet, in a residential neighborhood,” and then listed other
factors specific to the race. Certainly, driving and racing can
be conducted in a manner that is safe. Under the present
circumstances the race was not conducted in a safe manner,
but races are conducted professionally all of the time and are
maintained and conducted in a manner that is not a nuisance
under all circumstances. This Court is to review the activity
to determine if it is a nuisance at all times no matter the care
or how it is maintained. A race certainly can be envisioned
which is not a nuisance and can be conducted and maintained
in a manner that does not cause a nuisance. Plaintiff's claim
is predicated on lack of care. And, racing is not an
intrinsically unreasonable or dangerous activity. The
questioning of Chief Kish in the deposition presents a question
based on a specific situation in which proper care may not
have been taken. In addition, Chief Kish would not be able
to make legal conclusions as to what a nuisance per se is.
Racing is not “an intrinsically unreasonable or dangerous

App. 18a

activity.” Li, supra at 477 (opinion by Cavanagh, C.J.).
Obviously with proper care and concern, racing can be
conducted in a manner that does not pose a nuisance at all
times and under all circumstances.

For the above reasons, plaintiff has failed to present a
question of fact constituting a nuisance per se because a car
racing is not a nuisance at all times, without regard to the care
with which it is conducted, thus, the circuit court properly
granted Lincoln Park’s motion for summary disposition’ and
denied plaintiff's motion for summary disposition.

E. Motor Vehicle Exception to Governmental Immunity

Plaintiff's next argues that the trial court erred in granting
Lincoln Park’s motion for summary disposition pursuant to
MCL 691.1405-and denying plaintiff's motion for summary
disposition where Lincoln Park was not entitled to
governmental immunity because of the motor vehicle
exception to governmental immunity. We disagree. The
determination whether a vehicle is a motor vehicle within the
scope of the exception to governmental immunity is an issue
of statutory construction subject to de novo consideration on
appeal. Stanton v Battle Creek, 466 Mich 611, 614-615; 647
NW2d 508 (2002).

* Even if the circuit court improperly decided the motion based on
governmental immunity (as it indicated that governmental immunity
did not provide an exception for nuisance per se, which is not
clear), “{a] trial court’s ruling may be upheld on appeal where the
right result issued, albeit for the wrong reason.” Gleason v
Michigan Dep't of Transportation, 256 Mich App 1, 3; 662 NW2d
822 (2003).

App. 19a

The trial court properly granted Lincoln Park’s motion for
summary disposition and denied plaintiff's motion for
summary disposition because the Lincoln Park police vehicles
were not being operated within the meaning of MCL
691.1405; i.e., decedent’s injuries and death were not directly
associated with the operation of the Lincoln Park police
vehicles.

The motor vehicle exception of the governmental
immunity act, MCL 691.1405, provides:

Governmental agencies shall be liable for bodily
injury and property damage resulting from the
negligent operation by any officer, agent, or employee
of the governmental agency, of a motor vehicle of
which the governmental agency is owner, as defined
in Act No. 300 of the Public Acts of 1949, as
amended, being sections 257.1 to 257.923 of the
Compiled Laws of 1948.

Plaintiff contends that Lincoln Park’s answer to her
requests for admissions establishes that defendant police
officers’ vehicles were operated in a manner excepting
Lincoln Park from governmental immunity. Lincoln Park in
its answers to plaintiff's requests for admissions, admitted that
defendant police officers operated and occupied Lincoln Park
vehicles during the drag race, these vehicles were parked at
a Lincoln Park party store near the drag race, and that
defendant officers were within the scope of their employment
during the drag race. Plaintiff argues that Lincoln Park police
cars hyped the crowd and that, although the lights were off,
the engines were running. Plaintiff also argues that the police
vehicles were being operated in violation of the drag racing
statute MCL 257.626a because the vehicles were rendering
assistance to the race. Plaintiff relying on Nolan v Bronson,

App. 20a

185 Mich App 162; 460 NW2d 284 (1990), argues that the
vehicle does not have to be moving and can support
application of governmental immunity under the current facts
because all that is necessary is that the vehicle is “‘being used
or employed in some function or to produce some desired
work or effect.’” Nolan, supra at 177.

Recently, in addressing nearly the exact same argument in
Poppen v Tovey, 256 Mich App 351, 355-356; 664 NW2d
269 (2003), this Court provided:

Citing Wells v Dep't of Corrections, 79 Mich App
166; 261 NW2d 245 (1977) and Nolan v Bronson, 185
Mich App 163; 460 NW2d 284 (1990), plaintiff
argues that for purposes of the motor-vehicle
exception it is not necessary that a vehicle be in
motion at the time of the injury to find that the injury
resulted from “operation” of a motor vehicle. Rather,
all that is necessary is that the vehicle is “‘being used
or employed in some specific function or to produce
some desired work or effect.’” Nolan, 185 Mich App
at 177, quoting Wells, 79 Mich App at 169. Our
Supreme Court, however, recently rejected this
expansive definition of “operation” in Chandler v
Muskegon Co, 467 Mich 315; 652 NW2d 224 (2002),
determining that such a construction defines the term

“so broadly that it could apply to virtually any

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situation imaginable in which a motor vehicle is
involved regardless of the nature of its involvement.”
Id. at 321. Noting the well-established principle that
the statutory exceptions to governmental immunity
must be narrowly construed, the Court concluded that
the phrase “‘operation of a motor vehicle’ means that
the motor vehicle is being operated as a motor
vehicle” and, therefore, encompasses only those

RENNER

App. 2la

“activities that are directly associated with the driving
of a motor vehicle.” /d. at 320-321 (emphasis in
original). Applying this definition to the undisputed
facts of this case, we find no error in the trial court’s
conclusion that plaintiff's injuries did not result from
“operation” of a government-owned motor vehicle.
At the time of the collision, the city vehicle had been
stopped for approximately three to five minutes in
order to permit its passenger to inspect a public utility.
Once stopped for this purpose, its presence on the
road was no longer “directly associated with the
driving of that vehicle. /d. at 321. Accordingly, the
vehicle was not being operated “as” a motor vehicle
at the time of the accident and summary disposition in
favor of the city was appropriate.

Thus, the mere involvement of a motor vehicle is not
sufficient to abrogate immunity. Rather, the negligent
operation of a vehicle requires that the motor vehicle was
being operated as a motor vehicle, and the exception
encompasses only activities which are directly associated with
the driving of a motor vehicle. See Chandler, supra at 320-
32; Poppen, supra at 355. To result from the negligent
operation of a motor vehicle, generally an injury must result
from physical contact between the governmental-owed vehicle
and the plaintiff's vehicle, or from circumstances in which the
government-owned vehicle physically forced the plaintiff's
vehicle off the road or into another object. See Robinson,
supra at 457; Curtis, supra at 559.

Clearly, the Lin oln Park vehicles were not being
operated “as a motor vehicle,” as statutorily defined and
interpreted by this Court and the Supreme Court. It is
undisputed the vehicles were not moving, and, at most, were
being used through their public address systems. There was

App. 22a

no physical contact between decedent and the Lincoln Park
police vehicles; nor was any activity of the Lincoln Park
police vehicles directly associates with the driving of a motor
vehicle. The circuit court properly granted Lincoln Park’s
motion for summary disposition in this regard and properly
denied plaintiff's motion for summary disposition because
decedevit’s injuries did not result from the negligent operation
of Lincoln Park police vehicles.

IV

Plaintiff next contends, on appeal, that the trial court
abused its discretion by setting aside the entry of default
against defendants. We disagree.

A. Standard of Review

The application and construction of court rules is an issue
of law subject to de novo review. Barclay v Crown Bldg &
Development, Inc, 241 Mich App 639, 642; 617 NW2d 373
(2000). Whether a default or a default judgment should be set
aside is within the sound discretion of the trial court, and this
Court reviews a trial court’s decision to set aside a default or
default judgment for a clear abuse of discretion. Amoco
Builders & Developers, Inc v Team Ace Joint Venture, 469
Mich 90, 97; 666 NW2d 623 (2003). “An abuse of discretion
involves far more than a difference in judicial opinion.”
Alken-Ziegler, Inc v Waterbury Headers Corp, 461 Mich 219,
227; 600 NW2d 638 (1999). A trial court abuses its
discretion when “the result is ‘so palpably and grossly
violative of fact and logic that it evidences not the exercise of
will but the perversity of will, not the exercise of judgment
but the defiance thereof, not the exercise of reason but rather
of passion or bias.’” /d., quoting Marrs v Bd of Medicine,
422 Mich 688, 694; 375 NW2d 321 (1985). Where there has

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App. 23a

been a valid exercise of discretion, appellate review is sharply
limited. /d.

B. Setting Aside a Default

Plaintiff contends that defendants never filed answers to
plaintiff's amended complaint filed on March 31, 2003 or at
least did not answer within the proper time period established
by the fact that the default needed to be set aside. Plaintiff
further contends that the trial court abused its discretion in
setting aside the default. We find that the circuit court did not
clearly abuse its discretion in setting aside the default entered
against defendants.

A motion to set aside a default or a default judgment
generally may be granted only if good cause is shown and an
affidavit of facts showing a meritorious defense is filed.
MCR 2.603(D)(1); Alken-Ziegler, supra at 223. Whether a
party has made a sufficient showing of good cause and of a
meritorious defense are discrete inquiries, but the strength of
a proffered meritorious defense can affect the necessary
showing of good cause. Alken-Ziegler, supra at 232-233.
Good cause sufficient to warrant setting aside a default or a
default judgment may be shown by: (1) a substantial
irregularity or defect was present in the proceeding on which
the default is based; or (2) there was a reasonable excuse for
failure to comply with the requirements that created the
default. /d. at 233; see also Amoco Builders & Developers,
Inc, supra. A substantial defect or irregularity must have
prejudiced the defendant to constitute good cause. Alycekay
Co v Haske Construction Co, 180 Mich App 502, 506-507;
448 NW2d #3 (1989); Emmons v Emmons, 136 Mich App
157, 164-165; 355 NW2d 898 (1984). The policy of this state
generally favors the meritorious determination of issues, but
once regularly entered, default judgments should stand after

App. 24a

expiration of the time provided. Amco Builders &
Developers, Inc, supra at 95; Alken-Ziegler, supra at 227;
Koski v Allstate Ins Co, 456 Mich 439, 447; 572 NW2d 636
(1998); Wendel v Swanberg, 384 Mich 468, 476; 185 NW2d
348 (1971).

1. Defendant Police Officers

Plaintiff filed an amended complaint on March 31, 2003.
On April 17, 2003, defendant police officers filed a motion to
set aside the order granting leave to amend complaint and to
strike the amended complaint. MCR 2.603 provides for entry
of a default “[if] a party against whom a judgment for
affirmative relief is sought has failed to plead or otherwise
defend as provided by these rules.” Plaintiff entered the
default based on defendants’ failure to comply with MCR
2.108. MCR 2.108(A)(1) provides: “A defendant must serve
and file an answer or take other action permitted by law or
these rules within 21 days after being served with the
summons and a copy of the complaint in Michigan in the
manner provided in MCR 2.108(A)(1).”.» MCR 2.108(B)
provides: “A motion raising a defense or an objection to a
pleading must be served and filed within the time for filing the
responsive pleading or, if no responsive pleading is required,
within 21 days after service of the pleading to which the
motion is directed.” MCR 2.108(C)(3) provides: “The
response to a supplemental pleading or to a pleading amended
either as of right or by leave of court must be served and filed
within the time remaining for response to the original pleading
or within 21 days after service of the supplemental or
amended pleading, whichever period is longer.”

Defendant police officers filed the motion to strike the
amended complaint and motion to set aside the amended
complaint within the proper time period pursuant to MCR

App. 25a

2.108(B), and this is consistent with the “otherwise defend”
language of MCR 2.603, thus, entry of the default was

improper. In Alken-Ziegler, supra at 229, our Supreme Court
noted:

. although the law favors the determination of
claims on the merits, . . . it also has been said that the
policy of this state is generally against setting aside
defaults and default judgments that have been properly
entered. {Citations omitted and emphasis added. |

Thus, the policy is not against setting aside defaults that have
not been properly entered. Defendant police officers did
otherwise defend, thus, entry of the default was improper.
Nonetheless, even if the default was properly entered, the
circuit court did not clearly abuse its discretion in setting
aside the default against defendant police officers.

Defendant police officers’ motion and objection to the
amended pleading and the record support that there were
substantial procedural irregularities, thus, defendant police
officers have shown “good cause.” On March 14, 2003,
plaintiff brought a motion for leave to file an amended
complaint and attached the amended complaint.
Subsequently, on March 27, 2003, defendant police officers
filed a motion for summary disposition contending that
summary disposition was proper on plaintiff's original
complaint and the proposed first amended complaint attached
to the March 14, 2003, motion to amend. On March 28,
2003, there was a hearing on Lincoln Park’s motion for
summary disposition and the circuit court indicated that
plaintiff could file the amended complaint. Then, on March
31, 2003, plaintiff filed the first amended complaint, which
differed from the amended complaint presented at the hearing.
The amended complaint also contained claims that the circuit

App. 26a

court had already granted summary disposition on and federal
claims which were later stricken. Further, defendant police
officers provided plaintiff with a meritorious defense before
the first amended complaint filed, which also supported a
complete defense for defendant police officers for the claims
in the amended complaint (noting that the federal claims were
stricken from her first amended complaint). Moreover,
defendant acknowledged at the April 25, 2003 hearing that
there were no new State claims against defendant police
officers in the amended complaint, and the federal claims
were stricken. Thus, defendants’ response to plaintiff's
original complaint addressed all of the claims against
defendant police officers that were valid. It is clear defendant
police officers’ prior response adequately provided a
meritorious defense to the amended complaint raising no new
proper claims against defendant police officers.°

Even, if defendant police officers were somewhat
negligent, “[t]he mere existence of negligence does not
preclude a finding of good cause.” Huggins v Bohman, 228
Mich App 84, 88, 578 NW2d 326 (1998). Indeed, the first of

° A specific affidavit of meritorious defense is not required when -
it is clear from the record that defendants had presented a
meritorious defense. See /SB Sales Co, supra at 533-544; Jones v
Philip Atkins Construction Co, 143 Mich App 150, 161; 371 NW2d
508 (1985); see also Hertz Schram & Saretsky v Turner,
unpublished per curiam opinion of the Michigan Court of Appeals
(Docket No. 239176, issued January 20, 2004); Francis v Yelle,
unpublished per curiam opinion of the Michigan Court of Appeals
(Docket No. 237406, issued May 29, 2003). We note these
unpubiished opinion as persuasive, because of the limited case law,
but notes that unpublished opinions are not binding under the rules
of stare decisis. MCR 7.215(C)(1); see also Dyball v Lennox, 260
Mich App 698. 705 n 1; 680 NW2d 522 (2003).

App. 27a

the five specific grounds for providing relief from a judgment
is “mistake, inadvertence, surprise, or excusable neglect . . .
.” MCR 2.612(C)(1)(a). Defaults and default judgments may
also be set aside under the standards of MCR 2.612,
pertaining to relief from judgment. MCR 2.603(D)(3); Alken-
Ziegle, supra at 234 n 7. As noted, “[a] showing of a
meritorious defense and factual issues for trial can fulfill the
‘good cause’ requirement because in some situations, allowing
such a default to stand would result in manifest injustice.”
Huggins, supra at 88, citing Park v American Casualty Ins
Co, 219 Mich App 62, 67; 555 NW2d 720 (1996). Finally,
relief from judgment rule authorizes relief for “any other
reason justifying relief from the operation of judgment.”
MCR 2.612(C)(1)(f). This catchall provision grants a trial
court wide discretion to set aside a default if it determines that
manifest injustice might flow from the entry of a default
judgment.

For the above reasons, we find that the trial court did not
commit a clear abuse of discretion in setting aside the default
entered against defendant police officers.

2. Lincoln Park

Although, a closer question, the circuit court did not
clearly abuse its discretion in setting aside the default entered
against Lincoln Park.

At a March 28, 2003 hearing the circuit court indicated
that it was granting Lincoln Park’s motion for summary
disposition because of governmental immunity. And, the
circuit court at this same hearing indicated that plaintiff could
amend the complaint. At this hearing, Lincoln Park
addressed plaintiff's submitted amended complaint and
contended that it did not matter because it was still entitled to

App. 28a

governmental immunity pursuant to Robinson, supra. There
were three versions of the amended complaint presented prior
to entry of the default judgment: (1) March 14, 2003, plaintiff
presented one version with her motion for leave to amend; (2)
on March 28, 2003, at the hearing plaintiff presented another
version of the amended complaint and was granted leave to
amend; and (3) on March 31, 2003, piaintiff filed yet another
version of the amended complaint, which subsequently had
claims stricken from it. The amended complaint, filed on
March 31, 2003, which Lincoln Park did not respond to, was
later found to be improper. On April 25, 2002, a hearing was
conducted and it appears that both Lincoln Park and the
circuit court were confused as to whether Lincoln Park was
still a party to the proceedings, since the circuit court had
earlier granted its motion for summary disposition. The new
complaint contained the former allegations that the circuit
court had already granted summary disposition on and new
claims for nuisance per se and federal claims. There were
questions throughout the hearing regarding the filing of the
complaint. The circuit court ordered that the federal law
claims contained in the amended complaint were to be stricken
and for plaintiff to file another amended complaint without the
federal claims.

The was a substantial number of irregularities and defects
in the proceedings below regarding plaintiff's amended
complaint; thus, there was “good cause” to set aside the
default against Lincoln Park. Alken-Ziegler, supra at 233;
Barclay, supra at 653. Lincoln Park presented a defense
based on goversmental immunity in its original pleadings,
which carried over to the amended pleadings. These
arguments also covered plaintif s addition of the nuisance per
se claim, in which, the complaint itself was lacking because
racing is not a nuisance per se. And, Lincoln Park presented
a meritorious defense at the hearing where plaintiff argued her

_

App. 29a

motion to amend when it argued that it was still entitled to
governmental immunity on the claims presented in the
amended complaint.’

Even if Lincoln Park was somewhat negligent, “(t]he
mere existence of negligence doe: not preclude a finding of
good cause.” Huggins, supra at 88. Indeed, the first of the
five specific grounds for providing relief from a judgment is
“mistake, inadvertence, surprise, or excusable neglect... .”
MCR 2.612(C)(1)(a). Defaults and default judgments may
also be set aside under the standards of MCR 2.612,
pertaining to relief from judgment. MCR 2.603(D)(3); Alken-
Ziegler, supra at 234 n 7. As noted, “[a] showing of a
meritorious defense and factual issues for trial can fulfill the
‘good cause’ requirement because in some situations, allowing
such a default to stand would result in manifest injustice.”
Huggins, supra at 88, citing Park, supra at 67. Finally, the
relief from judgment rule authorizes relief for “any other
reason justifying relief from the operation of judgment.”
MCR 2.612(C)(1)(f). This catchall provision grants a trial
court wide discretion to set aside a default if it determines that
manifest injustice might flow from the entry of a default
judgment. Manifest injustice would result if the default was
not set aside as Lincoln Park, would be liable to plaintiff for
claims for which it is immune.

For the above reasons, it was not a clear abuse of
discretion for the circuit court to find that Lincoln Park

” As noted above, a specific affidavit of meritorious defense is not
required when it is clear from the record that defendants had
presented a meritorious defense. See /SB Sales Co, supra at 533-
544; Jones, supra at 161; see also Hertz Schram & Saretsky, supra
v Turner; Francis, supra.

App. 30a

satisfied the good cause prong of the analysis, even if it was
negligent in responding to the first amended complaint, as it
thought it was dismissed from the case. This lesser showing
of good cause is sufficient when, as seen in this case, a
manifest injustice could result from the default judgment in
light of the existence of a meritorious defense. The circuit
court’s decision to set aside the default was not palpably and
grossly violative of fact and logic. See Alken-Ziegler, supra
at 227.

V

Plaintiff next argues, on appeal, that the trial court abused
its discretion in denying plaintiff's motion to compel
production of relevant documents from Lincoln Park. We
disagree.

A. Standard of Review

A motion to compel discovery is a matter within the trial
court’s discretion, and the court’s decision to grant or deny a
discovery motion will be reversed only if there has been abuse
of that discretion. Linebaugh v Sheraton Michigan Corp, 198
Mich App 335, 343; 497 NW2d 585 (1993). In civil cases,
an abuse of discretion is found only in extreme cases in which
the result is so palpably and grossly violative of fact and logic
that it evidences a perversity of will, a defiance of judgment,
or the exercise of passion or bias. Dep’t of Transp v
Randolph, 461 Mich 757, 768; 610 NW2d 893 (2000).
Michigan law generally provides for the discovery of any
relevant, nonprivileged matter. MCR 2.302(B)(1); Eyde v
Eyde, 172 Mich App 49, 54-55; 431 NW2d 459 (1988).

App. 3la

B. Motion to Compel Production of Documents

Plaintiff contends that the circuit court abused its
discretion in denying plaintiff's motion to compel production
of documents against Lincoln Park, particularly, when the
original request was submitted before Lincoln Park was
dismissed from the case. It does not appear that the circuit
court abused its discretion, but, regardless, any error was
clearly harmless. Plaintiff's brief on appeal does not
specifically address what documents it wanted, but indicated
the production of documents were “relevant to find
impeachment evidence.” However, in granting summary
disposition in favor of defendants the circuit court viewed all
evidence in a light most favorable to plaintiff, thus, the
admission of impeachment evidence would not have changed
anything. Consequently, any error was harmless error and
plaintiff's substantial rights were not affected. See Craig v
Oakwood Hosp, 471 Mich 67, 76; 684 NW2d 296 (2004);
Campbell v Sullins, 257 Mich App 179, 197; 667 NW2d 887
(2003); MCR 103(a); MCR 2.613({A). As such, even if the
circuit court did abuse its discretion (which it does not seem
that it did), plaintiff is entitled to no relief on this issue.

vi

Plaintiff's final issue on appeal is that the trial court
abused its discretion in striking and withholding from filing
the federal civil rights claims where the motion to file an
amended complaint was stipulated to and granted by the
circuit court. We disagree because the circuit court did not
abuse its discretion in restricting plaintiffs first amended
complaint to state claims.

App. 32a

A. Standard of Review

This Court reviews a trial court’s decision on a motion to
amend and a motion to strike for an abuse of discretion.
Frank W Lynch & Co v Flex Techs, Inc, 463 Mich 578, 583;
624 NW2d 180 (2001), Ostroth v Warren Regency, GP, LLC,
263 Mich App 1, 5; 687 NW2d 309 (2004); Phillips v Deihm,
213 Mich App 389, 394; 541 NW2d 566 (1995).

B. Plaintiff's Federal Claims

Plaintiff contends that the circuit court abused its
discretion in restricting her first amended complaint to state
claims, thus, striking her 42 USC 1983 claims. Plaintiff
sought leave to amend her complaint pursuant to MCR
2.118(A)(2), which provides that “except as provided in
subrule (A)(1), a party may amend a pleading only by leave
of court or by written consent of the adverse party. Leave
shall be freely given when justice so requires.” MCR
2.118(A)(2).

Particularized reasons for denying a motion to amend
include: (1) undue delay; (2) the movant’s bad faith or
dilatory motive; (3) repeated failures to cure deficiencies by
amendments previously allowed; (4) undue prejudice to the
nonmoving party; and (5) futility. Sands Appliance Services,
Inc v Wilson, 463 Mich 231, 239-240; 615 NW2d 241 (2000).
Seemingly, the circuit court limited plaintiff's amended
complaint to state claims because of time and undue prejudice
to defendants’ ability to remove the claim to federal court;
there was also confusion that was caused by plaintiff
presenting three different proposed first amended complaints.
The record reflects that the circuit court noted these
particularized reasons and seemed to weigh this against the
fact that plaintiff would not be prejudiced. There was

App. 33a

confusion surrounding the claims in that the 42 USC 1983
claims were not specifically in the motion to amend plaintiff
presented to the circuit court when requesting an amendment.

While it is true that leave to amend shall be freely given
when justice so requires, MCR 2.118; Terhaar v Hoekwater,
182 Mich App 747, 751; 452 NW2d 905 (1995), the circuit
court did not violate this rule in limiting plaintiff's amendment
to state claims. Plaintiff's amended complaint filed on March
31, 2003, was different then the one presented in its motion
for an amended complaint and the one it presented at the
motion hearing. With respect to claims not raised in the
motion, but argued at the hearing, these claims were not
stated in writing with particularity, and were therefore not
properly within the motion to amend the complaint. See
MCR 2.119. The circuit court also preserved plaintiff's right
to seek to amend to add federal claims once it had ruled on the
pending motions for summary disposition or to bring another
claim. And, the circuit court’s final order was given with the
understanding that it reserved adjudication of damages for the
pending federal district court claims against defendants. The
circuit court did not abuse its discretion in striking plaintiff s
federal claims and only allowing the amended complaint to
allege state claims, see Weymers v Khera, 454 Mich 639, 654;
563 NW2d 647 (1997), citing Dacon v Transue, 441 Mich
315, 328; 490 NW2d 369 (1992); Ben P Fyke & Sons v
Gunter Co, 390 Mich 649, 658; 213 NW2d 134 (1973),
particularly when defendants may have been prejudiced if the
federal court claims were allowed and plaintiff suffered no
prejudice.

App. 34a
Affirmed.*

/s/ Michael J. Talbot
/s/ Kathleen Jansen
/s/ Hilda R. Gage

* Lincoln Park has requested that sanctions be imposed against
plaintiff for a vexatious appeal. MCR 7.216(C)(1) governs
sanctions requested for a vexatious appeal. MCR 7.216(C)(1)
indicates that a motion for sanctions must be filed pursuant to MCR
7.211(C)(8). And MCR 7.211(C)(8) provides that a request for
sanctions must be made by motion; a brief on appeal is insufficient
to request sanctions. There is no indication that Lincoln Park has
separately filed a motion for sanctions at the appellate level.
Moreover, no appropriate legal authority was cited to support
sanctions. Therefore, Lincoln Park’s request for sanctions is
denied.

App. 35a

APPENDIX B

Court of Appeals, State of Michigan

Docket No.250616

LC No.01-143011-NI

[Filed June 17, 2005]
Dorothy Jones)

)
v )

)
Aaron Reynolds _)

)

ORDER

The Court orders that the motion for reconsideration is
DENIED.

A true copy entered and certified by Sandra Schultz
Mengel, Chief Clerk, on

June 17, 2005 /s/ _Sandra Schultz Mengel
Date Chief Clerk

App. 36a

APPENDIX C

Michigan Supreme Court
Lansing, Michigan

SC No.: 129133

[Filed February 27, 2006]

DOROTHY JONES, as Personal

Representative of the Estate of

DENISE MICHELLE JONES, Deceased,
Plaintiff-Appellant,

Vv

AARON REYNOLDS, MUSTAPHA ATAT,
a/k/a CRAZY MOE MUSTAPHA,
a/k/a MOE ATAT, and MARSHA
DESIREE HUMPHREY,

Defendants,

and

CITY OF LINCOLN PARK, WILLIAM

KISH Ill, JOSEPH LAVIS, DOUGLAS

MUNCY, and MOHAMED NASSER,
Defendants-Appellees.

ORDER

Nee eee eee eee eee ee Oe

App. 37a

On order of the Court, the application for leave to appeal
the April 7, 2005 judgment of the Court of Appeals is
considered, and it is DENIED, because we are not persuaded
that the questions should be reviewed by this Court.

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.

February 27, 2006 /s/ _ Corbin R. Davis
Clerk

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1613%3A2. Public record. Not legal advice.