947 F.2d 1042 (3rd Cir. 1991), 90-1118, Simmons v. City of Philadelphia

Docket Nº:90-1118.
Citation:947 F.2d 1042
Party Name:Delores SIMMONS, Administratrix of the Estate of Daniel La Friscoe Simmons, Appellees, v. The CITY OF PHILADELPHIA; Police Officer A. Panati, Badge No. 2587, Appellants.
Case Date:October 18, 1991
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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947 F.2d 1042 (3rd Cir. 1991)

Delores SIMMONS, Administratrix of the Estate of Daniel La

Friscoe Simmons, Appellees,


The CITY OF PHILADELPHIA; Police Officer A. Panati, Badge

No. 2587, Appellants.

No. 90-1118.

United States Court of Appeals, Third Circuit

October 18, 1991

Argued Sept. 27, 1990.

Rehearing and Rehearing In Banc

Denied Nov. 21, 1991.

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Charisse Lillie, City Solicitor, Norma S. Weaver, Chief Deputy in Charge of Claims, Miriam B. Brenaman (argued), Divisional Deputy in Charge of Appeals, City of Philadelphia, Law Dept., Philadelphia, Pa., for appellants.

Mark B. Frost (argued), Frost, DeMesquita & Rudow, Philadelphia, Pa., for appellees.

Before SLOVITER, Chief Judge, and BECKER and WEIS, Circuit Judges.


OPINION ANNOUNCING THE JUDGMENT OF THE COURT TABLE OF CONTENTS PAGE I. THE FACTUAL BACKGROUND AND PROCEDURAL HISTORY 1049 A. The Factual Background 1049 B. The Trial Proceedings 1049 II. WAS THE CITY ENTITLED TO J.N.O.V. WITH RESPECT TO PLAINTIFF'S 1055 FEDERAL CLAIMS? A. Did the City Waive its Inconsistency Objection to the § 1055 1983 Verdicts? PAGE B. The Alleged Inconsistency of the Verdicts; the Requisites for 1058 Establishing a Municipality's Direct Liability for a Policy or Custom and a Failure to Train; and (More On) Waiver 1. The Alleged Inconsistency of the Verdicts 1058 2. The Predicates to a Municipality's Direct 1059 Liability for a Policy, Custom, or Failure to Train 3. More on Waiver 1065 C. The Sufficiency of the Evidence 1066 1. Standards for Determining Whether the City 1067 Breached a Constitutional Duty to Intoxicated and Potentially Suicidal Detainees 2. The Sufficiency of the Evidence With Respect to 1070 Plaintiff's Municipal Custom or Policy Allegation 3. The Sufficiency of the Evidence With Respect to 1074 Plaintiff's Failure to Train Theory III. WAS THE CITY ENTITLED TO J.N.O.V. WITH RESPECT TO PLAINTIFF'S 1076 PENDENT STATE CLAIMS? A. Did the City Waive its Argument that Plaintiff Failed to Allege 1076 and Establish any Pendent State Claims? B. The Alleged Errors in the Jury Instructions 1077 1. The Alleged Error of Permitting the Jury to 1078 Consider the Condition of the Lockup Facilities 2. The Alleged Error of Instructing the Jury that 1079 Police Directives Establish a Statutory or Common Law Duty 3. The Instruction that Intoxication Can Lower a 1079 Prisoner's Duty to Exercise Due Care 4. The Alleged Error of Failing to Instruct the 1080 Jury on the Preconditions to a Duty Arising from a Special Relationship C. Is the City Immune from Liability With Respect to Plaintiff's 1084 State Claims? IV. IS THE PLAINTIFF ENTITLED TO DELAY DAMAGES UNDER RULE238 ? 1088 V. CONCLUSION 1088 Page 1048

BECKER, Circuit Judge.

This is an appeal from a judgment of the district court entered on a large jury verdict in favor of the mother and administratrix of the estate of an emotionally disturbed young man who hung himself in a Philadelphia station house lockup after

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having been arrested for intoxication. This appeal requires exploration of the recesses of the federal civil rights law insofar as it bears on the liability of municipalities and municipal police officers under these circumstances. More particularly, this appeal requires examination of the predicates to a municipality's liability for a policy, a custom, or a failure to train employees in light of a trio of Supreme Court decisions expanding on the prerequisites to municipal liability established in Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). This appeal also necessitates prediction of how the Pennsylvania Supreme Court would decide issues concerning the prerequisite to a duty to protect an intoxicated and suicidal prisoner and the effect of the state's Tort Claims Act on the validity of municipal ordinances, such as Philadelphia's, waiving immunity from liability for police negligence. Finally, because in a number of instances counsel for the defendant City of Philadelphia arguably failed to preserve points raised on appeal, I devote a good deal of attention to an explanation of the principles of waiver and their application to this case. For the reasons that follow in this opinion and in Judge Sloviter's separate opinion, the district court's order denying the City's post-trial motions, its judgment on the verdict, and its award of delay damages to the plaintiff will be affirmed.


A. The Factual Background 1

In the early hours of the morning of October 19, 1985, Philadelphia ("City") police officers took Daniel Simmons, who was 24 years of age and had no prior convictions, into custody for public intoxication. Pursuant to a departmental directive, the City police ordinarily do not file charges against intoxicated persons, but merely hold them in protective custody until they are sober or can be released to a responsible party.

When the police detained Simmons, who was heavily intoxicated, he grew agitated, became quite concerned about his arrest, and began to cry. The arresting officers attempted to calm him and transported him to the City's Sixth Police District, where they placed him in the custody of the facility's turnkey, Officer Albert Panati. The arresting officers informed Panati that Simmons was crying and upset at the time that he was taken into custody. Following his arrival at the district detention facility, Simmons became confused, emotional, and deeply concerned about his arrest and its consequences. The district court determined that, "[i]n spite of his condition, the minor nature of his offense, and his inability to call his family," no one at the detention facility placed a call on Simmons's behalf. Simmons v. City of Philadelphia, 728 F.Supp. 352, 353 (E.D.Pa.1990). Indeed, Panati testified that it was his practice not to place telephone calls on behalf of intoxicated detainees and to permit such a detainee to place a phone call only if the detainee made a request and was, in the officer's judgment, sufficiently sober.

Panati removed Simmons's belt and sundry of his personal belongings as required by a City police directive before placing him alone in a cell. Panati, however, did not comply with a second directive, presumably intended to forestall suicide attempts, which provides that "[w]henever possible, a minimum of two persons are to be placed in a cell/detention room." Notwithstanding this directive, Panati customarily attempted to house intoxicated detainees separately, in order to prevent altercations. Because the cell block was empty at the time that he incarcerated Simmons, Panati could not have housed Simmons with another prisoner, even had he decided that Simmons should not be left alone in a cell. The district court determined, however, that "there were other jails in the City which

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were not totally empty" to which Simmons could have been taken. Id.

Panati returned to Simmons's cell approximately fifteen minutes after he first had placed him there. At this point, because Simmons had untied his shoe laces and they were flopping around, Panati removed them--a step that a City police directive instructs should be taken immediately upon incarceration. The district court determined that "[a]side from removing the shoe laces, no other steps were taken to protect Simmons." Id.

Panati's desk was separated by a wall from the cell block in which Simmons was held, and a turnkey had to enter the block physically in order to see what was happening within a given cell. Panati's log book showed that, during the time that Simmons was incarcerated, the officer inspected the cell block at precise fifteen minute intervals, in accordance with police directives. Panati admitted, however, that he recorded in this log that he had inspected the cells in the facility at exactly every quarter of an hour, regardless of when he actually did so.

For at least one hour of the time during which Simmons was custody, he remained quite upset and periodically rattled the bars of his cell. According to Panati, Simmons had "glassy eyes," was "in a stupor," and did not respond when Panati told him to sit down and relax. Panati described Simmons's reactions to his continued incarceration as varying between confusion and hysteria.

Slightly more than one and one-half hours after he first had locked Simmons into his cell, Panati discovered Simmons hanging from the bars of the cell from a noose that he had made from his trousers. Panati cut Simmons down and called for a medical rescue team. Panati himself made no attempt to revive Simmons. A rescue team arrived approximately seventeen minutes after Panati had discovered Simmons's body. An autopsy revealed that, at death, Simmons's blood alcohol level was .24, or more than twice the legal blood-alcohol limit for operating a motor vehicle.

Following her son's suicide, Simmons's mother and administratrix, Delores Simmons, instituted this civil rights action, 42 U.S.C. § 1983, against Officer Panati, the City, and City Police Commissioner Gregor Sambore. Plaintiff alleged that these defendants had violated various of Simmons's constitutional rights, including his rights to life, liberty, and due process of law under the fifth and fourteenth amendments and his penumbral privacy rights. In addition, plaintiff asserted cognate pendent tort claims against each of the defendants. Prior to trial, however, plaintiff moved and was granted permission to withdraw her action against Police Commissioner Sambore.

B. The Trial Proceedings

Whereas plaintiff presented...

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