Falkenstein v. City of Bismarck

• Decision Date: 26 July 1978
• Docket Number: No. 9469,9469
• Parties: Leslie FALKENSTEIN, Individually, and as Administrator of the Estate of Kevin Wayne Falkenstein, Plaintiff and Appellee, v. CITY OF BISMARCK and Richard Peck, Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 787

268 N.W.2d 787

Leslie FALKENSTEIN, Individually, and as Administrator of the Estate of Kevin Wayne Falkenstein, Plaintiff and Appellee, v. CITY OF BISMARCK and Richard Peck, Defendants and Appellants.

Civ. No. 9469.

Supreme Court of North Dakota.

July 26, 1978.

As Corrected Aug. 10, 1978.

Vogel, Brantner, Kelly, Knutson, Weir & Bye, Fargo, for plaintiff and appellee; argued by John D. Kelly, Fargo.

Fleck, Mather, Strutz & Mayer, Bismarck, for defendants and appellants; argued by Thomas A. Mayer, Bismarck.

PEDERSON, Justice.

Kevin Falkenstein was born and raised at Wilton. While attending school in Wilton, he actively participated in athletics and was an excellent scholar. For three years and one quarter at North Dakota State University he studied game management and agriculture, maintaining a "B" average. At the end of the 1974 fall quarter he left NDSU to work and to make plans for his future. At age 21, in a tragic episode occurring in the early morning hours of February 21, 1975, he was dead.

Shortly after midnight Kevin, while intoxicated, was involved in an automobile accident on Main Avenue in Bismarck. He was arrested and charged with driving while under the influence of intoxicating liquor, and, when he could not post bond, he was held in the Bismarck city jail. He was moved into a cell described as "the hole" following an incident in which he "foul-mouthed" a Bismarck police officer. "The hole" was a small cell with solid walls. In it was a toilet bowl otherwise the room was bare. It was lit only through two small grilled openings, one in the top of the door and one in the bottom. The opening at the top could be covered with a flap. The cell was in a noisy basement room which contained heating and other equipment. At nine o'clock in the morning Kevin was found dead, hanging from the cell door bars with his T-shirt knotted around his neck.

This suit was brought by Kevin's father against the City of Bismarck and Richard Peck, a sergeant on the Bismarck police force. The case was tried to a jury. Three causes of action were presented to the jury as follows:

(1) The City or Sgt. Peck, or both, were negligently responsible for Kevin's death (the wrongful death count);

(2) The City or Peck, or both, were responsible for negligently, and by cruel and unusual punishment, causing Kevin pain, suffering, humiliation, and physical and emotional harm from the time of his incarceration to the time of his death (the survival count); and

(3) Peck subjected Kevin to cruel and unusual punishment or treatment, and deprived him of his civil rights guaranteed by the constitution and laws of the United States (the 1983 count). ¹

In addition to actual damages, punitive damages were sought in the survival count and the 1983 count. The jury returned a verdict against the City on the wrongful death count in the amount of $27,000. The jury returned a verdict in favor of Peck and the City on the survival count. The jury returned a verdict against Peck on the 1983 count, and awarded actual damages of $25,000 and punitive damages of $6,000. Judgment was entered on the verdict. Peck and the City moved for judgment notwithstanding the verdict and for a new trial. Both motions were denied and Peck and the City appealed therefrom, as well as from the judgment entered on the verdict.

The only error alleged to have occurred during trial involved the admission into evidence of the "Recommended Rules for Prisoners Treatment and Recommended Jail Facilities County and City," and the jail inspection reports concerning the Bismarck city jail. The City and Peck argue that because these rules are only recommendations and do not have the force and Peck and the City do not complain about any of the jury instructions given. It is argued that the evidence does not support the verdict. When considering whether evidence is sufficient to sustain a verdict, we draw all inferences in support of the verdict and consider the evidence in the light most favorable to the verdict. Rule 59(b)(6), NDRCivP; Bladow v. Bladow, 249 N.W.2d 917 (N.D.1977); Jamestown Terminal Elevator, Inc. v. Hieb, 246 N.W.2d 736 (N.D.1976). We presume that all questions of fact within the province of the jury have been determined in a manner which supports the verdict. Buehner v. Hoeven, 228 N.W.2d 893, 904 (N.D.1975); Watkins Products, Inc. v. Stadel, 214 N.W.2d 368 (N.D.1974). Whether or not the supreme court might view a jury's findings with skepticism or absolute trust is not a question on appeal. Kresel v. Giese, 231 N.W.2d 780, 791 (N.D.1975). We do not invade the province of the jury to weigh the evidence or determine the credibility of witnesses. Buehner v. Hoeven, supra. We will not, however, resort to suspicion, surmise, or conjecture to sustain a verdict. Seaborn v. Kaiser, 117 N.W.2d 863 (N.D.1962). See, also, Bellon v. Bellon, 244 N.W.2d 227 (N.D.1976), and Waletzko v. Herdegen, 226 N.W.2d 648 (N.D.1975).

effect of law, they cannot be admitted into evidence under any circumstances. It is likewise argued that the inspection reports and the testimony of the inspector should have been excluded. Although failure to comply with nonenforceable, recommended standards may not be a prima facie basis for liability, evidence of the existence of such standards is admissible to show knowledge of existence of risk and a measure of actions of a reasonable man, or of custom. See, Restatement Torts, Second, § 288B(2), and following. The trial court admonished and instructed the jury that a failure to follow the recommended rules was not evidence of negligence.

Falkenstein raises questions which concern the scope of our review in appeals from orders denying motions for judgment notwithstanding the verdict and from orders denying motions for new trial. In this case, in addition to the appeals from the orders denying their motions, Peck and the City appealed from the judgment. Recently we said:

"When a party appeals from an order . . . the review in this court is limited to those grounds which were presented to the district court. However, when there is an appeal from the judgment, the appeal is not limited to those issues raised in a motion . . . . All issues which were properly preserved at the trial and raised on appeal are reviewable." Davis v. Davis, 268 N.W.2d 769 (N.D.1978).

The motion for judgment notwithstanding the verdict and the motion for a new trial are motions directed to the sound discretion of the trial court and will not be overturned on appeal unless it is clear that there was a manifest abuse of discretion. Rules 50 and 59, N.D.R.Civ.P.; Dehn v. Otter Tail Power Co., 251 N.W.2d 404 (N.D.1977); Cook v. Stenslie, 251 N.W.2d 393 (N.D.1977); Reub's Minot Camera, Inc. v. General Elec. Cr. Corp., 209 N.W.2d 635 (N.D.1973). No abuse of discretion has been shown in this case. Motions for judgment notwithstanding the verdict should not be granted unless the evidence shows that the moving party is entitled to judgment on the merits as a matter of law. Smith v. Michael Kurtz Construction Company, 232 N.W.2d 35, 38 (N.D.1975).

MERITS

In most situations a death by suicide is not an actionable event because, even though there may have been tortious conduct preceding the suicide, the suicide is ordinarily considered as an intentional act and not the result of the tort. This relieves the original actor of liability. See, generally, Lucas v. City of Long Beach, 60 Cal.App.3d 341, 131 Cal.Rptr. 470 (1976). An exception to this rule arises when the conduct of the tort-feasor causes a mental condition which results in an uncontrollable impulse leading to suicide. Hamilton v. Chaffin, 506 F.2d 904 (5th Cir. 1975); Lucas v. City of Long Beach, supra; Tate v. Canonica The City argues that before liability for the negligent causation of such a mental condition can be imposed, there must be a showing that the injury (the suicide) was foreseeable. McBride v. State, 52 Misc.2d 880, 277 N.Y.S.2d 80 (C.C.1967). See, also, Annot.: Civil Liability of Prison or Jail Authorities for Self-Inflicted Injury or Death of Prisoner, 79 A.L.R.3d 1210. In this respect the City relies upon the following:

180 Cal.App.2d 898, 5 Cal.Rptr. 28 (1960); Dezort v. Village of Hinsdale, 35 Ill.App.3d 703, 342 N.E.2d 468, 79 A.L.R.3d 1199 (1976); Daniels v. New York, N.H. & H.R. Co., 183 Mass. 393, 67 N.E. 424 (1903); State ex rel. Richardson v. Edgeworth, 214 So.2d 579 (Miss.1968); Arsnow v. Red Top Cab Co., 159 Wash. 137, 292 P. 436 (1930); Orcutt v. Spokane County, 58 Wash.2d 846, 364 P.2d 1102, 1105 (1961); Bogust v. Iverson, 10 Wis.2d 129, 102 N.W.2d 228 (1960).

"The controlling factor in determining whether there may be a recovery for a failure to prevent a suicide is whether the defendants reasonably should have anticipated the danger that the deceased would attempt to harm himself." (Citations omitted.) Fernandez v. Baruch, 52 N.J. 127, 244 A.2d 109, 112 (1968).

While the Fernandez Opinion concerned a medical malpractice lawsuit and is distinguishable upon that ground alone, it is argued therefrom that there can be no liability because there was no showing that Kevin was suicidal prior to his being placed in "the hole." This argument misapprehends the evidence and the law. The issue is not only Kevin's prior mental condition. We are also concerned with the mental condition which resulted from his placement in "the hole." If the mental condition which caused Kevin's suicide existed before his incarceration, liability ordinarily could not be imposed under the rule that requires the mental condition to be caused by the actions of the tort-feasor. Absence of any prior mental illness of any kind, and, in particular, an absence of any prior threat or attempt at suicide, adds strength to the argument that the suicide resulted from the negligence of placing and leaving Kevin in "the hole." It is true that notice of propensity to commit suicide would result in an obligation to exercise...