652 F.2d 969 (10th Cir. 1981), 79-1376, Garrick v. City and County of Denver

Docket Nº:79-1376.
Citation:652 F.2d 969
Party Name:John Joseph GARRICK, Jr., Plaintiff-Appellee, v. CITY AND COUNTY OF DENVER; Manager of Safety, Daniel P. Cronin; Chief of Police, Arthur G. Dill, Defendants, Alan D. Jones, Defendant-Appellant.
Case Date:June 29, 1981
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 969

652 F.2d 969 (10th Cir. 1981)

John Joseph GARRICK, Jr., Plaintiff-Appellee,

v.

CITY AND COUNTY OF DENVER; Manager of Safety, Daniel P.

Cronin; Chief of Police, Arthur G. Dill, Defendants,

Alan D. Jones, Defendant-Appellant.

No. 79-1376.

United States Court of Appeals, Tenth Circuit

June 29, 1981

Page 970

David J. Bruno of Bruno, Bruno & Bruno, Denver, Colo., for defendant-appellant, Alan D. Jones.

Clifford L. Beem of Tague, Goss, Schilken & Beem, P. C., Denver, Colo., for plaintiff-appellee.

Before SETH, Chief Judge, and BREITENSTEIN and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

John Garrick brought this action under 42 U.S.C. § 1983 against the City and County of Denver and Alan D. Jones, a Denver police officer. Garrick sought actual and exemplary damages, alleging his constitutional rights were violated when Jones shot him in the abdomen during a scuffle following a traffic stop. Jones counterclaimed for actual and punitive damages, claiming he was assaulted by Garrick. The jury awarded Garrick $20,500 in actual damages against Jones and the City and County of Denver, and $70,000 in exemplary damages against defendant Jones only. The City and County of Denver have not appealed. Jones appeals the trial court's denial of his motion for a new trial or remittitur. He contends that the $70,000 punitive damage award is the result of the jury's misconception regarding the purpose of exemplary damages and is grossly excessive. We affirm.

The facts of this lawsuit, viewed in the light most favorable to Garrick, are briefly as follows. At about 2:00 a.m. on May 26, 1976, Jones and his partner observed a car making an illegal U-turn. They stopped the car in which Garrick, the driver, and two companions were riding. Jones smelled burning marijuana, and ordered the occupants to get out of the car and to put their hands on the car roof. They complied. Jones began to search the car, whereupon Garrick asked him if he needed a warrant. Jones replied in the negative and struck Garrick on the back of the head. When Garrick turned around to look at Jones he was struck again. Garrick then grabbed Jones and a shoving match ensued with each man holding the other by the upper arms or shoulders. Jones is 6 feet 6 inches tall and weighed about 240 pounds at the time. Garrick is 5 feet 10 inches tall and weighed about 185 pounds. Garrick testified that he was holding onto Jones to protect himself from further blows. Garrick's companions remained with their hands on the car under the control of Jones' partner.

During this scuffle, Garrick made a statement to the effect that they ought to calm down and straighten the matter out. At this point Jones drew his service revolver and shot once at Garrick, grazing his ribs. Garrick then let go of Jones and raised his arms. Jones shot him again. The bullet

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entered Garrick's abdomen and lodged near his spine.

As a result of the wound, Garrick had 30 centimeters of his small intestine removed. He has adhesions in his abdomen and will suffer permanent pain and indigestion.

The only issue raised on appeal concerns the punitive damage award. Jones concedes that the court properly instructed the jury on the issue. However, he contends the jury was confused about the nature of punitive damages and by its award intended to compensate Garrick for his pain and suffering rather than to punish Jones. He also argues that the award was grossly excessive under the circumstances.

The trial court correctly instructed the jury that punitive damages are awarded "in order to punish the wrongdoer for some extraordinary misconduct done to serve as an example or...

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