Breland v. Ford
| Decision Date | 03 May 1996 |
| Citation | 693 So.2d 393 |
| Parties | James BRELAND v Gene Kelvin FORD. 1931653. |
| Court | Alabama Supreme Court |
Jack M. Curtis, Department of Public Safety Legal Unit, Montgomery, for appellant.
Ronald O. Gaiser, Jr. of Gaiser and Associates, Birmingham, J.L. Chestnut, Jr. of Chestnut, Sanders, Sanders, & Pettaway, P.C., Selma, Robert H. Turner, Marion, for appellee.
James Breland, an Alabama State Trooper, appeals from a judgment entered on a jury verdict awarding $2,000,000 in compensatory damages to Gene Kelvin Ford in Ford's action against Breland seeking compensation for personal injuries Ford suffered during an arrest. We affirm.
Many of the facts pertinent to this case are in dispute. At the trial, however, testimony was offered during the presentation of Ford's case-in-chief suggesting that the following events occurred: On March 18, 1990, while 23-year-old Ford, a black male, was driving home from a neighborhood basketball park, he met Breland, a white male, who was on patrol in his automobile a short distance from Ford's home. When Breland's speed detection device indicated that Ford was exceeding the speed limit, he reversed directions and began following Ford. Ford saw Breland reverse directions, but did not realize that he was being pursued. Consequently, he proceeded homeward, turned into his driveway, and parked his car.
When Ford got out of his car, Breland struck him on the side of the head with his semi-automatic pistol. Ford ran into his house and retreated into one of the back rooms. Breland kicked in the door of the house and entered in pursuit, with a semi-automatic pistol in his hand.
Once inside, Breland shot Ford in the back as Ford was bending over to pick up one of his children. The force of the bullet, which passed through his body and exited from his stomach, caused Ford to fall to the floor. When Breland threatened to kill him if he moved and punctuated his threat with a racial slur, Ford arose from the floor and grappled with Breland for the pistol. Ford managed to get both hands on the pistol and grip it tightly. As Ford held the pistol in this manner, Breland fired a second time, narrowly missing Ford. 1
Howard Brooks, one of Ford's neighbors, then entered the room. At trial, Brooks testified as follows:
"[Breland] said: 'No.' "[Ford] said: 'Howard, this man ... shot me.' He said:
Ford lost consciousness and was taken by paramedics to the Selma Medical Center. His wound ultimately resulted in the loss of one kidney and damage to his colon.
On July 6, 1990, Ford filed a complaint in the Perry County Circuit Court against six defendants, including Breland; the Alabama Department of Public Safety; Captain George Jones, district superintendent; Thomas Wells, director of the Department of Public Safety; Sergeant R.E. Calvin, Perry County supervisor; and Captain Thomas McGee, chief of the Alabama State Trooper Training Academy. Ford alleged deprivations of rights guaranteed by the Constitution of the United States, for which he sought redress pursuant to 42 U.S.C. § 1983. His complaint also contained state law claims, including negligence, wantonness, and assault and battery. He sought $1,000,000 in compensation for the loss of his kidney, "permanent nerve and tissue damage," pain and suffering, deprivation of liberty, and medical and legal expenses. Eventually, the cause was submitted to a jury on theories of negligence and wantonness.
After the jury awarded Ford $2,000,000 in compensatory damages, Breland moved for a JNOV, or, in the alternative, a new trial, on the grounds (1) that he "enjoy[ed] substantive immunity under state law and is entitled to a verdict ... as a matter of law"; (2) that the verdict was against the weight of the evidence; (3) that the damages awarded were excessive; and that (4) that "[c]ertain argument of counsel for the plaintiff was so grossly improper and ... prejudicial as to require a new trial." Breland's motion was overruled. He appealed, asserting these same grounds. In addition, he contends that Ford exercised his peremptory strikes to remove white veniremembers in a manner that violated constitutional principles of equal protection. We shall address these contentions in that order.
Breland contends that "he was engaged in the exercise of a discretionary function at the time [of] the incident [that] is the basis of this action," and, consequently, that "he enjoys ... good faith ... or substantive immunity" from suit. Brief of Appellant, at 12. Ford argues that Breland failed to preserve this issue for appellate review. More specifically, Ford insists, Breland failed to move for a directed verdict on the basis of immunity at any point in the trial. We agree with Ford's contention.
At the close of the plaintiff's case, the following colloquy occurred:
(Emphasis added.) At the close of all the evidence, the defense moved, again, for a directed verdict, stating:
(Emphasis added.) The trial court denied this motion also.
These emphasized excerpts clearly demonstrate that the only ground ever assigned for Breland's directed verdict motions was that Ford had failed to present substantial evidence, as required by Ala.Code 1975, § 12-21-12, of any misfeasance. In other words, the basis for Breland's motion--"simply ... that [the] plaintiff has failed to prove [his] cause of action" (emphasis added)--stands in stark contrast to the bases for the co-defendants' motions.
" '[A] general motion for a directed verdict ... can only go to the case in its entirety, and not to individual subdivisions; and, to preserve individual issues, a motion must be made for a [verdict-directing] instruction on each of the individual issues.' " Cone Builders, Inc. v. Kulesus, 585 So.2d 1284, 1290 (Ala.1991) (quoting Housing Authority of the City of Prichard v. Malloy, 341 So.2d 708, 709 (Ala.1977)) (emphasis added). Because Breland's motion clearly failed to direct the court's attention to the issue of immunity--either before or after he presented his evidence--that issue was not preserved for review. The trial court, therefore, properly denied a judgment not withstanding the verdict on that ground.
Breland contends that he is entitled to a new trial on the ground that the verdict was against the weight of the evidence. Breland's version of the events that transpired during his attempt to arrest Ford differs from the version set forth above, principally in regard to the circumstances surrounding the deployment and use of Breland's pistol. In particular, Breland contends that he verbally informed Ford that he was under arrest when Ford exited his vehicle, and that Ford physically resisted arrest before entering his house. Most significantly, he insists that Ford was accidentally shot in the stomach as Ford was attempting to wrest the pistol from Breland.
Breland concedes that "[i]f the jury ... had believed the testimony of [Ford] that ... Breland shot him in the back without cause or justification, then a finding of wantonness and an award of punitive damages would clearly have been proper." Brief of Appellant, at 19. He deems as dispositive, however, the fact that the jury awarded only compensatory...
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