Daigle v. City of Portsmouth

• Decision Date: 06 August 1987
• Docket Number: 86-129,Nos. 85-029,s. 85-029
• Citation: 534 A.2d 689,129 N.H. 561
• Parties: Dale A. DAIGLE v. CITY OF PORTSMOUTH. Dale A. DAIGLE v. Albert PACE.
• Court: New Hampshire Supreme Court

Page 689

534 A.2d 689

129 N.H. 561

Dale A. DAIGLE v. CITY OF PORTSMOUTH.

Dale A. DAIGLE v. Albert PACE.

Nos. 85-029, 86-129.

Supreme Court of New Hampshire.

Aug. 6, 1987.

Bernard J. Robertson, Exeter, orally, Stephen T. Jeffco, Portsmouth, and Stephen D. Mau, Rye, for plaintiff.

Burns, Bryant, Hinchey, Cox & Shea P.A., Dover (Paul R. Cox, orally, Stephen E. Gaige, and Mark H. Gardner, on the brief), for defendant City of Portsmouth.

Ransmeier & Spellman, Concord (Diane L. Perin, on the brief, and Steven E. Hengen, orally), for defendant Albert F. Pace.

SOUTER, Justice.

These are appeals taken from two superior court judgments, entered after trials of related actions arising from an assault allegedly committed on the plaintiff by one or more police officers. Gray, J., presided over the first trial, which consolidated actions brought by Dale Daigle against the City of Portsmouth, the Town of Newington and six named police officers employed by those municipalities. This ended with a jury verdict against the City of Portsmouth under the rule of respondeat superior, predicated on findings that Portsmouth police officer Albert Pace committed the assault on Daigle while acting within the scope of his employment. Thereafter, a second jury trial was held before Nadeau, J., in an action seeking damages against Albert Pace personally, which resulted in a verdict for the defendant.

In its appeal from the first judgment, the city seeks reversal or other relief because of trial and post-trial errors, and because of the inconsistency of the verdict with the verdict in the second trial. Daigle cross-appeals the court's denial of attorney's fees. In his appeal from the second judgment, Daigle urges reversal on the ground that the principle of collateral estoppel entitled him to judgment against Pace on the issue of liability. We affirm each judgment.

It appears from the record of the first trial that in the early hours of August 12, 1981, two men removed the rear wheels from some cars parked on the lot of Taccetta Chevrolet in Newington. When Newington police officers arrived at the premises, they arrested one of the men, Joseph O'Brien, for attempted theft, but the other thief escaped to a wooded gully behind the Taccetta building. One of the officers, James Trueman, correctly believed that Daigle was the second man and called into the woods demanding his surrender. When Daigle failed to emerge, Trueman radioed for help through the Rockingham County Dispatch Center. Five Portsmouth police officers responded, as did one more from Newington. There was evidence that Albert Pace was among the five from Portsmouth, although he was off-duty at the time in question and his presence at the scene is subject to dispute.

At some point before all the police left, Daigle came out of the woods. While trying to reach his own car, he came upon a Portsmouth officer, who struck him with a night stick. The officer continued to beat Daigle, causing fractures of the skull, black eyes, injuries to the face, neck and right leg, other bruises and contusions, and finally rendering Daigle unconscious. Daigle testified that when he came to, he heard someone say, "He is hurt, hurt pretty bad, you better call an ambulance," to which someone else replied, "F_____ him, leave him there, that will teach him a lesson."

After leaving the Taccetta lot, Officer Trueman drove O'Brien into the city of Portsmouth, where he released him without filing any charges. Daigle later made his way to a telephone and called a friend for help. The friend picked him up and later that morning took him to a Dover hospital, from which he was soon transferred to a treatment center for head injuries at the Maine Medical Center in Portland. In the course of his hospitalization, Daigle examined a publication showing photographs of members of the Portsmouth Police Department, from which he concluded that Officer Albert Pace may have been his assailant.

Meanwhile, on the morning of August 12, someone at Taccetta Chevrolet reported wheels missing from certain cars on the lot, prompting an investigation by three Newington officers, Susan Waal, Chief John Stimson and Tom Gordon, the last of whom had responded to the call for assistance the night before. While there was evidence that officer Trueman also stopped at the Taccetta lot after his shift ended, the officer in charge testified that she did not remember seeing Trueman there and was not told by anyone about the events earlier that morning. Despite two Newington officers' knowledge of those events, and the further evidence obtained during the morning investigation, the Newington police never charged anyone with the attempted theft of the tires.

Daigle was not so quiescent, however, and in June, 1983, he began actions against the City of Portsmouth and Town of Newington. The declarations of his writs allege that one or more unnamed police officers of the respective municipalities assaulted him, negligently used excessive force and negligently allowed others to do the same, for which the municipalities were said to be liable on the theory of respondeat superior. The declarations claimed further that the officers had acted under color of State law and in circumstances that rendered the municipalities liable under 42 U.S.C. §§ 1983 and 1985, in connection with which the plaintiff requested an award of counsel fees under 42 U.S.C. § 1988.

In February, 1984, Daigle began a further series of actions claiming personal liability against four named Portsmouth officers, not including Pace, and two from Newington. Mutatis mutandis, the declarations track the claims in the earlier actions against the employing municipalities. Although Pace is not named, the allegations of the §§ 1983 and 1985 violations claim that the six named officers acted in concert with each other and with "other police officers as yet unknown."

These two series of actions against the towns and the named police officers were consolidated for trial. In the course of pretrial discovery, Daigle's counsel learned of a written note summarizing an oral report made in 1983 by Portsmouth police officer Robert Hersey to Portsmouth detective George Krook, indicating that Pace had committed the assault. The discovery process itself is the subject of allegations of impropriety; but since these allegations are not ripe for adjudication here, it is sufficient to say that the note led to the commencement of action against Albert Pace personally in August, 1984, based on allegations similar to those against the six other named officers.

Daigle moved to consolidate this last action for trial with the others, to which Pace objected because of insufficient time to prepare for the November, 1984, trial date, which had previously been set in the earlier actions. Counsel for Pace has represented to us that the trial court gave Daigle a choice between consolidating all actions for trial at a later time, or proceeding to try only the earlier series of actions on the date previously set, and that Daigle chose the latter and proceeded to trial. In any case, the court denied the motion to consolidate.

At the close of the plaintiff's evidence against the municipalities and the six officers, the court granted motions to dismiss filed on behalf of Newington and its two named officers. At the close of all evidence, after a six-week trial, the jury returned defendant's verdicts in the actions against the individual officers, but a plaintiff's verdict for $500,000 in Daigle's action against Portsmouth on the theory of respondeat superior. See RSA 412:3. This was based on a finding of common-law assault, together with a special finding that Pace had committed the acts. In passing on the related civil rights claim against the city under §§ 1983 and 1985, the jury specially found that Pace had acted under color of State law in committing the assault, but rested its verdict for the defendant city on the further finding that Portsmouth had no "policy, practice or custom, either tacit or express encouraging or condoning police misconduct of the type ... Pace engaged in." The jurors supplemented their verdicts and special findings with a handwritten note stating their belief that "the four [Portsmouth] officers erred by omission ...[,] that the true cover up was at a higher level [, that] there was negligence and that Dale Daigle's rights were violated." After verdict, the trial court denied Daigle's motion for counsel fees, and both he and the city filed appeals.

In the remaining action against Pace, Daigle moved for entry of judgment for the plaintiff on the issues of liability and compensatory damages, on a theory of offensive collateral estoppel based on the verdict in the first action. After denial of this motion, a series of further pretrial rulings effectively limited the action to a claim for punitive damages under §§ 1983 and 1985. Trial resulted in a jury verdict for Pace, with a special finding that he had not assaulted Daigle. Portsmouth then invoked this special finding, that Pace had not committed the assault, as the basis for moving the trial court to vacate the verdict returned in the first trial and to enter judgment in the city's favor. Because this court had already accepted the parties' appeals following the first trial, the superior court had no jurisdiction to entertain such a motion going to the subject matter before us. See Rautenberg v. Munnis, 107 N.H. 446, 244 A.2d 232 (1966). The city was, however, given leave to present the claim raised by its motion, as an additional issue in the appeal it had previously filed.

I.

Our consideration of the two cases begins with their inconsistent verdicts. We will, first, address Daigle's position that under the principle of collateral estoppel the first jury's finding that Pace had committed the assault entitled Daigle to judgment against Pace on the issue of liability in the later action against him personally. If...