WILLIAMS
v.
THOMPSON
Docket No. 93832.
Michigan Court of Appeals.
Decided July 18, 1988.Sommers, Schwartz, Silver & Schwartz, P.C. (by Stanley S. Schwartz and Richard D. Fox), for plaintiff.
Vandeveer, Garzia, Tonkin, Kerr, Heaphy, Moore, Sills & Poling, P.C. (by Richard B. Poling, Jr., and Robert D. Brignall), for City of Rochester and Douglas Ehle.
Before: WEAVER, P.J., and M.J. KELLY and J.R. KIRWAN,[*] JJ.
M.J. KELLY, J.
This Court issued its unpublished per curiam opinion in this matter on October 15, 1987, which affirmed the decision of the trial court. Thereafter by split decision an order was entered granting rehearing as a majority of the panel was persuaded that this case should be revisited in the light of the recent decision in Morse v City of Mount Pleasant, 160 Mich. App. 741; 408 NW2d 541 (1987).
We affirm the trial court's dismissal of plaintiff's claim against the City of Rochester for violation of his civil rights under 42 USC 1983 for reasons stated in our prior opinion. Cf. Daniels v Williams, 474 U.S. 327; 106 S. Ct. 662; 88 L. Ed. 2d 662 (1986).
We reverse the court's entry of summary disposition in favor of defendant-appellee Douglas Ehle under MCR 2.116(C)(10) because plaintiff's claim was not so deficient as to have been unsupportable at trial. Plaintiff testified to being intoxicated, indicating that he had consumed a pint of whiskey and two quarts of beer. Plaintiff's mother, who had *846 not been deposed but whose affidavit had been submitted in support of plaintiff's claim, swore that she received a call from the Rochester Police Department telling her that her son was intoxicated and to come down to pick him up. She states that when she arrived at the police station she was told by the officer that her son could not have gone far because he was "too drunk to walk." Witness Heft testified that she contacted the policeman because she observed plaintiff's vehicle swerving, running off the pavement two or three times, and crossing the center line. She testified that plaintiff's appearance was that of a person in a daze, his eyes were glassy, he did not seem to know where he was, he walked slowly and aimlessly, and talked in an ambling, slow, drawling way.
Construing the depositions and affidavits in a light most favorable to plaintiff, a trier of fact could find a violation of the police department's own policies to take an intoxicated person into custody. It could also find a violation of the statute under state law, MCL 333.6501(1); MSA 14.15(6501)(1), which states in part:
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 pursuant to subsection (4) for subsequent transportation to an approved service program or emergency medical service.
MCL 333.6104; MSA 14.15(6104) defines incapacitated as being "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."
It is for the trier of fact to determine whether under the conflicting evidence the testimony of *847 plaintiff and of Crystal Heft showed an individual so impaired that he posed an immediate threat to his own health and safety. The jury could also find, based upon plaintiff's mother's version, that defendant Ehle was aware of plaintiff's intoxicated condition, having communicated that fact to plaintiff's mother. See also Morse v City of Mount Pleasant, supra, and Trimper v Headapohl, 162 Mich. App. 320; 412 NW2d 731 (1987).
The summary disposition entered by the circuit court in favor of defendant Douglas Ehle only is reversed.
Affirmed in part and reversed in part.
J.R. KIRWAN, J., concurred.
WEAVER, P.J. (concurring).
I concur.
I agree that the differing testimony given by officer Ehle and plaintiff's mother raises a question of material fact which should go to the trier of fact.
I also agree that MCL 333.6501(1); MSA 14.15(6501)(1) is controlling. However, the majority opinion omits a crucial portion of the definition of "incapacitated." MCL 333.6104(3); MSA 14.15(6104)(3) states in full:
"Incapacitated" means that an 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. [Emphasis added.]
The trier of fact must determine whether the testimony is sufficient to show that plaintiff appeared to Officer Ehle to be so impaired as a result of the use of alcohol that he posed an immediate threat to his own health and safety or to the health and safety of the public.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.