Griglione v. Martin

• Decision Date: 21 December 1994
• Docket Number: No. 93-958,93-958
• Citation: 525 N.W.2d 810
• Parties: Susan E. GRIGLIONE, As Administrator of the Estate of Rodney John Griglione, Appellant, v. Steven MARTIN and City of Mt. Pleasant, Iowa, Appellees.
• Court: Iowa Supreme Court

Page 810

525 N.W.2d 810

Susan E. GRIGLIONE, As Administrator of the Estate of Rodney John Griglione, Appellant, v. Steven MARTIN and City of Mt. Pleasant, Iowa, Appellees.

No. 93-958.

Supreme Court of Iowa.

Dec. 21, 1994.

David S. Wiggins of Wiggins & Anderson, P.C., West Des Moines, for appellant.

David A. Elderkin of Elderkin & Pirnie, P.L.C., Cedar Rapids, for appellees.

Considered by McGIVERIN, C.J., and LARSON, CARTER, NEUMAN, and SNELL, JJ.

CARTER, Justice.

Plaintiff, Susan Griglione, as personal representative of her husband, Rodney, appeals from an adverse judgment in an action against a police officer and the City of Mt. Pleasant. Plaintiff's action against the City and officer Steven Martin grew out of Martin's action in fatally shooting plaintiff's decedent on October 24, 1989.

Plaintiff's civil damage action on behalf of Rodney Griglione's estate contained counts against Martin based on negligence, assault and battery, and a violation of federal civil rights laws under 42 U.S.C. § 1983. The action contained counts against the City, alleging that it was vicariously liable on the negligence and assault and battery counts against Martin. It also contained a claim against the City based on 42 U.S.C. § 1983. The § 1983 claim against Martin alleged that he acted to deprive Rodney Griglione of his life and liberty without due process of law guaranteed by the Fourteenth Amendment to the federal constitution. The § 1983 action against the City alleged that it had not provided proper training to Martin in the use of deadly force.

The district court sustained the City's motion for summary judgment as to the § 1983 count against it in advance of trial. The other counts against Martin and the City were tried to a jury, which found for the defendants on all claims. As grounds for reversal of the resulting judgment, plaintiff contends that the district court erred in failing to instruct the jury that an officer's violation of a police department operating procedure is negligence per se. She also urges that it was error for the court to grant summary judgment for the City on her § 1983 claim. The court of appeals rejected both of these contentions and affirmed the judgment of the district court. On further review of the court of appeals decision, we also affirm that judgment.

During an eight-month period in 1989, Rodney Griglione had lived with his girlfriend, Paula Blythe, with whom he had been carrying on an affair while married to Susan. Approximately a month before his death, he left Paula and moved back to the residence where Susan resided. On the evening of October 23, 1989, Rodney telephoned Susan from a bar. She concluded from the tone of his voice that he was intoxicated. Susan also received two phone calls that evening from Paula Blythe advising her that Paula had been receiving threatening calls from Rodney.

When Rodney returned home later that evening, he asked Susan for the keys to the car. When she refused to give them to him, Rodney left the house. At this time Susan telephoned Paula, warning her that Rodney might be coming to her residence. Paula then telephoned the Mt. Pleasant Police Department, which dispatched officer Martin to investigate. After arriving at Paula's residence and going inside, officer Martin heard noises coming from outside. He exited her mobile home to investigate the source of these sounds. According to officer Martin, he heard someone yelling profanities at him. He then heard footsteps and, with the use of his flashlight, observed Rodney climbing over a fence with a large knife in his right hand.

Officer Martin testified that Rodney began running toward him. At some point, officer Martin drew his pistol and fired at Rodney three times, fatally wounding him. There was evidence indicating that officer Martin failed to identify himself as a police officer during the events that accompanied the fatal shooting. Other facts bearing on the issues will be considered in our discussion of the points of law urged by the parties.

I. Whether a Violation of a Police Department Operating Procedure is Negligence Per Se.

The first issue we consider is whether a violation of a police department operating procedure is negligence per se or merely evidence of negligence. Plaintiff offered evidence that officer Martin violated the standard operating procedures promulgated by the Mt. Pleasant Police Department by not obtaining backup to handle a disturbance call, in failing to identify himself as a police officer before firing his service revolver, and in not attempting alternative means to avoid the use of deadly force. The district court instructed the jury that the City of Mt. Pleasant had adopted standard operating procedures for the use of deadly force, which were described in the court's instructions. The instruction then advised the jury that "[a] violation of this standard operating procedure is evidence of negligence."

Plaintiff urges that the jury should have been instructed that a violation of the police operating procedures would constitute negligence per se rather than only being some evidence of negligence. We disagree with that contention for two reasons. First, our prior cases direct that, in order for the violation of rules of conduct to constitute negligence per se, those rules must establish specific standards that are to be followed unwaveringly in all instances. Jorgensen v. Horton, 206 N.W.2d 100, 102 (Iowa 1973); see Restatement (Second) of Torts § 285 cmt. b (1965). Whether this is the case is to be determined in light of the purpose of the particular rule. Porter v. Iowa Power & Light Co., 217 N.W.2d 221, 237 (Iowa 1974).

The preamble to the operating procedures that are at issue here states:

The following Police Department Standard Operating Procedures are guidelines that are suggested for occurrences as specified as follows. They will never replace good, sound judgment or common sense, but when confronted with an unfamiliar situation should serve as an aid to the Officer.

Another portion of these written policies states the following:

The Deadly Force Policy is written to guide officers before the fact in approaching a potentially critical situation and not merely to assist in assessing the possible liability after the fact. The use of deadly force in effecting an arrest shall be based on the concept of protection of the officer or other person from the use, or threat of use of deadly force.

These written procedures, when read as a whole, do not involve the delineation of that type of precise standard required to invoke the negligence per se doctrine.

There is a second reason for rejecting plaintiff's argument. We believe rules of conduct that establish absolute standards of care, the violation of which is negligence per se, must be ordained by a state legislative body or an administrative agency regulating on a statewide basis under authority of the legislature. That is the position espoused in Restatement (Second) of Torts § 286 (1965) and followed by this court in Jorgensen, 206 N.W.2d at 102. We are persuaded that, for purposes of civil damages actions based on allegedly negligent actions by municipal employees, this principle is sound. There should not be differing standards of care based on the varying policies of the particular municipal corporation. The district court did not err by failing to give a negligence per se instruction with respect to the alleged violation of the police operating procedures.

II. Whether Summary Judgment Was Properly Granted on Plaintiff's 42 U.S.C. § 1983 Claim Against the City.

Plaintiff argues that the district court erred in granting summary judgment for the City on her claim under 42 U.S.C. § 1983. This issue involves her allegation that the City's training of officer Martin in the use of deadly force was inadequate.

The City took the deposition of an expert witness retained by the plaintiff. In that deposition, this witness testified that a video entitled "Surviving Edged Weapons," shown to officer Martin by the Mt. Pleasant Police Department, was inadequate training for handling situations involving edged weapons. The witness then opined that, if this were the only training Martin received on combating assailants armed with edged weapons, he would have been ill-trained for such encounters.

The district court concluded that, because plaintiff had presented no evidence concerning either the presence or absence of other training that officer Martin might have received from the City, she had established only a hypothetical deficiency in training procedures. The court concluded that because this was all that plaintiff had presented her case was fatally deficient. Plaintiff asserts that the district court improperly placed the burden of showing the lack of a material factual dispute on the resisting party rather than the moving party. A determination of that contention requires a review of the basic...