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STATE OF MICHIGAN
COURT OF APPEALS


BRENDA CONLEY, as Personal Representative of the Estate of CHRISTOPHER CONLEY, Deceased, Plaintiff-Appellant, v THOMAS BOBZEAN, Defendant, and JASON CRAWFORD, ROBIN BURKE, JOHN PAINE, JACK DELAND and CITY OF ADRIAN, Defendants-Appellees.

UNPUBLISHED January 12, 2006

No. 257276 Lenawee Circuit Court LC No. 02-002887-NO

Before: Murray, P.J., and Jansen and Kelly, JJ. PER CURIAM. Plaintiff appeals as of right the trial court's grant of summary disposition in favor of defendants, Jason Crawford, Robin Burke, John Paine, Jack DeLand and the city of Adrian, on plaintiff's claims of their breach of statutory and common law duties owed to decedent, based on his status as an alleged "incapacitated" person in accordance with MCL 333.6501, and violation of duties owed pursuant to 42 USC 1983. We affirm. Plaintiff contends defendants were negligent by breaching the duty owed to decedent to detain him in protective custody when he was determined to be intoxicated. Plaintiff asserts the failure of defendants to abide by the directives of MCL 333.6501 to secure decedent medical attention constituted the proximate cause of his death and was grossly negligent. A trial court's decision on a motion for summary disposition is reviewed de novo on appeal. Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). The applicability of governmental immunity is also a question of law reviewed de novo. Baker v Waste Management of Michigan, Inc, 208 Mich App 602, 605; 528 NW2d 835 (1995). MCL 333.6501(1) provides: -1-


An individual who appears to be incapacitated in a public place shall be taken into protective custody by a law enforcement officer and taken to an approved service program, or to an emergency medical service, or to a transfer facility . . . for subsequent transportation to an approved service program or emergency medical services. When requested by a law enforcement officer, an emergency service unit or staff shall provide transportation for the individual to an approved service program or an emergency medical service. This subsection shall not apply to an individual who the law enforcement officer reasonably believes will attempt to escape or will be unreasonably difficult for staff to control. MCL 333.6104(3) defines a person that is "incapacitated" as being: [A]n individual, as a result of the use of alcohol, is unconscious or has his or her mental or physical functioning so impaired that he or she either poses an immediate and substantial danger to his or her own health and safety or is endangering the health and safety of the public. First and foremost, plaintiff has failed to demonstrate that decedent meets the definitional requirements of an "incapacitated" person. Decedent was intoxicated, which was verified by administration of a PBT test. At the time of police involvement, plaintiff fails to demonstrate decedent posed "an immediate and substantial danger" to himself or was "endangering the health and safety of the public." While decedent had previously been involved in a physical altercation and purported verbal threats, during the time of police interaction decedent was not engaged in actions or behavior that constituted a danger to himself or others. Intervention by defendants to prevent decedent from driving his motor vehicle precluded any implication of decedent being a threat to himself or the public. The mere appearance of intoxication, without concomitant existence of dangerous behavior, is not sufficient to necessitate invocation of MCL 333.6501. Plaintiff's assertion of liability with regard to the city of Adrian is premised merely upon a tenuous allegation that the city of Adrian failed to properly discipline or prevent the officers from engaging in wrongful conduct. If it is demonstrated that the officers did not engage in wrongful conduct, no liability can be attributed to the city of Adrian. In addition, this Court has recognized that "a governmental agency is immune from tort liability when `engaged in the exercise or discharge of a governmental function.'" Markis v City of Grosse Pointe Park, 180 Mich App 545, 557; 448 NW2d 352 (1989), quoting MCL 691.1407(1). Maintaining a police force is a recognized governmental function. Mack v City of Detroit, 254 Mich App 498, 500; 658 NW2d 492 (2002). Therefore, the city of Adrian was entitled to immunity from tort liability for activities that are related to the operation of its police force. Plaintiff contends that defendants, by failing to detain decedent, breached their duty to him and thereby proximately caused his death. To establish a prima facie case of negligence, plaintiff was required to demonstrate: (1) defendants owed a duty to plaintiff; (2) defendants breached that duty; (3) the breach of duty by defendants was a proximate cause of plaintiff's damages; and (4) plaintiff suffered damages. Markis, supra at 558. This Court has previously indicated that a "public official's duty is owed to the public and not to any specific individual in society." Id. Based on the absence of any discernible duty, plaintiff is unable to demonstrate a prima facie case of negligence.

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Defendants correctly assert they are entitled to governmental immunity from tort liability. Defendants were acting in their official capacity and within the course of their employment and the scope of their authority. Importantly, the determination by defendants to offer transport to decedent rather than assume custody of him did not constitute gross negligence and was within the scope of their authority and, therefore, is entitled to immunity. Defendants were confronted with a decision whether to take decedent into protective custody or assist him to an alternative, safe location. Defendants elected the latter course of conduct. It has been recognized that the course of action elected to be taken by defendants is precisely the type of action that the concept of governmental immunity was designed to protect. Morse, supra at 894 n 6. Plaintiff also contends that defendants' actions, or inaction, constituted gross negligence precluding the applicability of governmental immunity. MCL 691.1407(2)(c) allows for individual immunity for governmental employees as long as their conduct "does not amount to gross negligence that is the proximate cause of the injury or damage." "Gross negligence" is defined within MCL 691.1407(7)(a) as "conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results." This Court has held that to establish the existence of gross negligence: [S]imply alleging that an actor could have done more is insufficient under Michigan law, because, with the benefit of hindsight, a claim can always be made that extra precautions could have influenced the result. However, saying that a defendant could have taken additional precautions is insufficient to find ordinary negligence, much less recklessness. Even the most exacting standard of conduct, the negligence standard, does not require one to exhaust every conceivable precaution to be considered not negligent. The much less demanding standard of care

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