Gazette v. City of Pontiac , 221 Mich. App. 579 ( 1997 )

561 N.W.2d 879 (1997) 221 Mich. App. 579

Cheriee GAZETTE, Individually and as Personal Representative of the Estate of Pamela Kay Bandy, Plaintiff-Appellant,
v.
CITY OF PONTIAC, Pontiac Police Department, Raymond Sain and Gary D. Bass, Defendants-Appellees.

Docket No. 200391.

Court of Appeals of Michigan.

Submitted January 14, 1997, at Lansing. Decided February 18, 1997, at 9:00 a.m. Released for Publication April 29, 1997.

Dib & Fagan, P.C. by Barry S. Fagan, Detroit, for plaintiff-appellant.

Cummings, McClorey, Davis & Acho, P.C. by Marcia L. Howe, Farmington Hills, for defendants-appellees.

Before MARK J. CAVANAGH, P.J., and WAHLS and JANSEN, JJ.

ON REMAND

MARK J. CAVANAGH, Presiding Judge.

This case is before us for the second time. In our first decision, we affirmed the trial court's grant of summary disposition pursuant to MCR 2.116(C)(8). Gazette v. Pontiac, 212 Mich.App. 162, 536 N.W.2d 854 (1995). The Supreme Court has remanded the case for reconsideration in light of its recent decision in White v. Beasley, 453 Mich. 308, 552 N.W.2d.1 (1996). 453 Mich. 973 (1996). We again affirm.

The facts of the case are set forth in our prior opinion:

On September 18, 1990, [Pamela Kay] Bandy left her home around 8:30 A.M. intending to get her car washed at the Perry Car Wash in Pontiac. When Bandy did not return home after a reasonable time had elapsed, plaintiff, Bandy's daughter, became concerned. Plaintiff and other members of the family contacted defendant Pontiac Police Department. Plaintiff gave the police a description of Bandy's white 1981 Cadillac Fleetwood, which had an unusual mark on the driver's door. Plaintiff also requested that the police investigate the Perry Car Wash, and she provided them with Bandy's bank account numbers so that they could inquire into whether unauthorized withdrawals had been made.

During the course of her conversation with the police, plaintiff mentioned that Bandy was an alcoholic and had recently been released from a rehabilitation program. Plaintiff informed the police that Bandy did not normally disappear for extended periods. Nevertheless, according to plaintiff, the police stated that they were familiar with Bandy, that Bandy was most likely on a drinking binge, and that she would eventually reappear. Plaintiff claims that the police informed her that they had investigated the car wash, had checked Bandy's bank accounts, and had discovered no evidence of wrongdoing, although apparently, in fact, they had done neither.

On September 24, 1990, the Waterford Township police pulled over a white 1981 Cadillac Fleetwood for a routine traffic violation. After discovering that the driver, Robert Hogan, had an outstanding bench warrant, the police searched the car and discovered Bandy's body in the trunk. Estimates placed the time of death at between twelve and thirty-six hours before the body was found. The cause of death was determined to be a combination of starvation, dehydration, and methanol poisoning from consumption of windshield washer fluid that had been in the trunk. Bandy had been physically and sexually assaulted.

Hogan was an employee of the Perry Car Wash. Between September 18 and September 24, Hogan had driven Bandy's Cadillac around Pontiac. During the time that Bandy was missing, unauthorized withdrawals were made from her bank account.

On September 23, 1992, plaintiff filed a complaint in the Oakland Circuit Court, alleging violations of the Michigan Constitution, the Handicappers' Civil Rights Act (HCRA), MCL 37.1101 et seq.; MSA 3.550(101) et seq., the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., and negligence....

On July 16, 1993, defendants moved for summary disposition pursuant to MCR 2.116(C)(8). The trial court noted that the police owe a duty to the general public and that the police owe a duty to a specific individual only if a special relationship has been formed. The trial court ruled that plaintiff had not shown that a special relationship existed between Bandy and defendants. The trial court also rejected plaintiff's argument that defendants failed to provide public services to Bandy because she was an alcoholic and thereby violated the HCRA and the Civil Rights Act. The trial court granted defendants' motion for summary disposition in an order entered September 28, 1993. [Gazette, supra at 165-167, 536 N.W.2d 854.]

I

The Supreme Court has recently held that the public-duty doctrine applies in Michigan. White, supra at 316, 552 N.W.2d 1. The public-duty doctrine is a doctrine of tort law that determines whether a duty in tort exists. Id. at 323, 552 N.W.2d 1. Applied to police officers, the public-duty doctrine insulates officers from tort liability for the negligent failure to provide police protection unless an individual satisfies the special-relationship exception to the doctrine. Id. at 316, 552 N.W.2d 1. The rationale is that police officers should not be liable for ensuring the general public's welfare simply because their job title lists them as "police officers." Id. at 318, 552 N.W.2d 1.

In determining whether a special relationship has been formed in cases involving police officers, the Supreme Court has adopted the test provided in Cuffy v. City of New York, 69 N.Y.2d 255, 513 N.Y.S.2d 372, 505 N.E.2d 937 (1987). Under the Cuffy test, a special relationship exists between police officers and a plaintiff when there is:

"(1) an assumption by the [police officer], through promises or actions, of an affirmative duty to act on behalf of the party who was injured;

(2) knowledge on the part of the [police officer] that inaction could lead to harm;

(3) some form of direct contact between the police officer and the injured party; and

(4) that party's justifiable reliance on the [police officer's] affirmative undertaking." [See White, supra at 320-321, 552 N.W.2d 1, quoting Cuffy, supra at 260, 513 N.Y.S.2d 372, 505 N.E.2d 937.]

Plaintiff alleges that defendants failed to provide police protection to Bandy. However, police officers do not owe a duty in tort to any individual unless the facts of a case fit the special-relationship doctrine. Id. at 324, 552 N.W.2d 1. We find that the facts of this case do not establish a special relationship between Bandy and defendants. Plaintiff has failed to allege two of the elements necessary to the establishment of a special relationship. First, plaintiff has not alleged that there was any contact between Bandy and defendants. Second, plaintiff has failed to allege that Bandy justifiably relied on any affirmative action taken by the police department. In fact, because Bandy herself never contacted the police, she had no knowledge of a promise on which she could rely.

The facts of this case are undeniably tragic. However, "[p]olice officers should not be liable ``for failing to protect a member of the general public from a criminal act of which they were not aware but should have anticipated and prevented.'" Id. at 318, 552 N.W.2d 1, quoting De Long v. Erie Co., 60 N.Y.2d 296, 304, 469 N.Y.S.2d 611, 457 N.E.2d 717 (1983).

Because plaintiff has failed to allege facts sufficient to satisfy the special-relationship exception, plaintiff has failed to establish that defendants owed a duty to Bandy. As a result, plaintiff has failed to state a claim on which relief can be granted, and the trial court did not err in granting summary disposition pursuant to MCR 2.116(C)(8).

II

Because plaintiff's claims under the HCRA and the Michigan constitution are unaffected by White, we adhere to our previous resolution of those issues. See Gazette, supra at 167-170,172-175, 536 N.W.2d 854.

Affirmed.