Cutter v. Town of Farmington, 84-435

• Decision Date: 26 July 1985
• Docket Number: No. 84-435,84-435
• Parties: Carroll E. CUTTER v. TOWN OF FARMINGTON.
• Court: New Hampshire Supreme Court

Page 316

498 A.2d 316

126 N.H. 836

Carroll E. CUTTER v. TOWN OF FARMINGTON.

No. 84-435.

Supreme Court of New Hampshire.

July 26, 1985.

Nighswander, Martin, Kidder & Mitchell P.A., Laconia (David S. Osman and another, Laconia, on brief, and Linda G. Peck, Laconia, orally), for plaintiff.

Cooper, Hall, Whittum & Shillaber P.C., Rochester (Donald F. Whittum, Rochester, on brief and orally), for defendant.

KING, Chief Justice.

This case comes before us on appeal from a trial in the Superior Court (Nadeau, J.) in which the plaintiff, Carroll Cutter, brought suit for damages against two members of the police department of the town of Farmington and the town itself. A jury returned a verdict in favor of the plaintiff and the two police officers, and against the municipality, and awarded damages. The town of Farmington (town) appeals, seeking review of the trial court's refusal to grant its motion for judgment notwithstanding the verdict and certain other post-trial motions. We affirm in part and reverse in part.

On the evening of August 30, 1980, a Farmington police cruiser followed a truck into the parking lot of Luneau's Restaurant on Route 11 in Rochester. The truck had been observed wandering across the centerline of the highway, and it had nearly collided with the police cruiser. The cruiser contained two Farmington police officers, John Burbine, a regular officer, and William Stawecki, a special officer hired approximately two weeks previously. Officer Burbine was supposed to give Officer Stawecki on-the-job training and supervision, but he had not previously worked with him. On this occasion Officer Stawecki was on his third or fourth night patrol. According to the record, Officer Stawecki had not received any formal instruction in police work prior to his assignment with Officer Burbine.

Once in the parking lot of Luneau's, the truck briefly stopped, then pulled into an available space near the east end of the lot. Although the testimony was in dispute, essentially the following took place. Officer Burbine approached the driver's side of the vehicle; Officer Stawecki the passenger's side. As the latter approached, Mr. Cutter got out of the truck. Officer Stawecki told him to put his hands against the truck. The plaintiff did not do this immediately, but instead insisted on knowing what he had done. At this point, Officer Stawecki testified that the plaintiff reached into his pocket with his right hand; that he, Officer Stawecki, grabbed plaintiff's hand with his own right; and that, thereupon, the plaintiff attempted to swing at him with his left. The plaintiff denied this and testified that Stawecki came running up to him, told him to put his hands on the truck and, in response to his query about what he had done, shoved him hard once or twice against the vehicle.

Officer Stawecki pushed Cutter to the ground, got on top of him and attempted to handcuff him. Officer Burbine, who had heard something hit the side of the truck, went over to investigate and found Officer Stawecki attempting to handcuff the plaintiff. He assisted him in the task. In the interval, Mr. Bickford, the other occupant of the truck, got out of the vehicle and came over to where the fracas was occurring. Again, what Bickford's words were was in dispute, as well as the manner of their delivery. It was agreed, however, that he in no way attempted to join the fray. At this point back-up police from Rochester had arrived, and Officer Burbine indicated to them that they should arrest Bickford. Bickford claimed that he was unnecessarily roughed-up prior to himself being handcuffed. The Rochester police denied this allegation.

The two men, Cutter and Bickford, were taken to the Rochester police station where they were booked and placed in custody. There was additional testimony that Cutter had tried to escape from the police cruiser and that both he and Bickford were screaming and kicking; Cutter and Bickford denied both allegations.

Subsequent to their detention, the plaintiff and Mr. Bickford brought suit against the police officers and the town of Farmington. They also sued the town of Rochester, but the plaintiff settled out of court. In the plaintiff's original complaint, he sought damages in the amount of $100,000. This amount increased to $600,000 before the case came to trial in the spring of 1984. At the close of trial, the jury returned a verdict in favor of the plaintiff Cutter and awarded him damages in the amount of $55,000. It found for the police officers and against the municipality. It found for the defendants as to Mr. Bickford.

The nub of the case that went to trial was that Officer Stawecki had improperly applied the handcuffs to the plaintiff's wrists by failing to double-lock them. As a result of the failure to double-lock the handcuffs, the handcuffs continued to tighten between the time of application in Luneau's parking lot and the time of their removal at the Rochester police station. The plaintiff claims that the pressure of the handcuff on his left wrist caused permanent damage to the radial nerve, resulting in a partial disability which unfitted him both for his present employment as a logger and for other physical labor. The plaintiff lacks any work experience outside of logging, and is illiterate. He further claims that he had requested Officer Stawecki to loosen the handcuff upon at least two occasions, but that his requests went unheeded.

The town urges this court to determine that the trial court erred in refusing to grant a judgment notwithstanding the verdict. A party is entitled to such a ruling "only when his case is established by the sole reasonable inference from undisputed facts." Amabello v. Colonial Motors, 117 N.H. 556, 561, 374 A.2d 1182, 1185 (1977) (quoting Skivington v. Robinson, 106 N.H. 493, 496, 213 A.2d 921, 923 (1965)). The court entertaining the motion is required to construe both the evidence and all reasonable inferences therefrom most favorably to the party opposing it. Id.; Dubreuil v. Dubreuil, 107 N.H. 519, 520, 229 A.2d 338, 339 (1967). If the evidence adduced at trial is conflicting, or if several reasonable inferences may be drawn, the motion should be denied. Amabello, supra at 561, 391 A.2d at 1185. "It should be granted only when all of the evidence viewed most favorably to the opponent so overwhelmingly favors the moving party that no contrary verdict based upon that evidence could ever stand." Id. (Emphasis added.)

The town asserts that under both New Hampshire law and general tort law principles, a finding that the town's police officers, Stawecki and Burbine, were free of negligence and that the town itself was fully responsible for the plaintiff's injuries is an impossibility, and that the trial court should, therefore, have granted the motion for judgment notwithstanding the verdict.

The town's argument raises the issue whether there was any causal relation proved between actions of the municipality, in its status as employer and supervisor of the policemen, and the plaintiff's injuries. It is insisted that, since the jury found that the conduct of the defendant police officers "conformed to the standards required of police officers," any negligence on the town's part was not a proximate cause of Carroll Cutter's injuries. Thus, it is contended, a finding of negligence on the part of Officers Stawecki and Burbine was an indispensable predicate to a finding of actionable negligence on the part of the municipality.

The town's argument erroneously assumes that the doctrine of respondeat superior controls the entire case submitted to the jury. See, e.g., McAndrew v. Mularchuk, 33 N.J. 172, 162 A.2d 820 (1960). Count two of the plaintiff's writ alleges municipal negligence on the basis of respondeat superior, but count three alleges negligent hiring, training and supervision. The basis of a claim of negligent employment or supervision brought against an employer where the employee harms a third party, is not vicarious liability, La Lone v. Smith, 39 Wash.2d 167, 171, 234 P.2d 893, 896 (1951); see Hollinger v. Jane C. Stormont Hospital, 2 Kan.App.2d 302, 311-12, 578 P.2d 1121, 1126-27 (1978); on the contrary, such a claim of negligent hiring, training and supervision can encompass direct liability as a result of the misconduct of the employee.

The principles involved in such a direct action are set forth in the Restatement (Second) of Agency § 213 (1958), to which this court has subscribed. See Labonte v. National Gypsum Co., 113 N.H. 678, 681, 313 A.2d 403, 405 (1973). Section 213 states, in relevant part:

"A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless:

(a) in giving improper or ambiguous orders of [sic] in failing to make proper regulations; or

(b) in the employment of improper persons or instrumentalities in work involving risk of harm to others;

(c) in the supervision of the activity; ..."

Comment d (agent dangerous ) states that if the dangerous quality of an agent causes harm, liability attaches to the principal under the rule that "one initiating conduct having an undue tendency to cause harm is liable therefor." Id. The "dangerous quality" may encompass the agent's "incompetence or unskillfulness due to ... his lack of experience...