Hughes v. Patrolmen's Benev. Ass'n of City of New York, Inc., 639

• Citation: 850 F.2d 876
• Decision Date: 15 June 1988
• Docket Number: No. 639,D,639
• Parties: Robert HUGHES, Plaintiff-Appellee, v. PATROLMEN'S BENEVOLENT ASSOCIATION OF the CITY OF NEW YORK, INC., J. Patrick Burns, and The City of New York, Police Department, Defendants, Patrolmen's Benevolent Association of the City of New York, Inc., J. Patrick Burns, Defendants-Appellants. ocket 87-7842.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 876

850 F.2d 876

Robert HUGHES, Plaintiff-Appellee, v. PATROLMEN'S BENEVOLENT ASSOCIATION OF the CITY OF NEW YORK,

INC., J. Patrick Burns, and The City of New York,

Police Department, Defendants,

Patrolmen's Benevolent Association of the City of New York,

Inc., J. Patrick Burns, Defendants-Appellants.

No. 639, Docket 87-7842.

United States Court of Appeals, Second Circuit.

Argued Feb. 11, 1988.

Decided June 15, 1988.

Irving Anolik, New York City, for defendants-appellants.

Edward P. Dunphy, New York City (Denise M. Dunleavy, New York City, of counsel), for plaintiff-appellee.

Before LUMBARD and CARDAMONE, Circuit Judges and LEISURE, District Judge. ^*

CARDAMONE, Circuit Judge:

The Patrolmen's Benevolent Association of the City of New York (PBA) and J. Patrick Burns appeal from a June 9, 1987 judgment in favor of appellee Robert Hughes in the United States District Court for the Southern District of New York (Owen, J.) following a jury trial. This appeal is from a jury verdict awarding Hughes substantial damages for intentional infliction of emotional distress and prima facie tort as well as awarding punitive damages. The jury found that appellants embarked on a deliberate and malicious vendetta against the plaintiff aimed at securing revenge for actions which the appellants should have known he did not do. The jury verdict here furthers Bacon's dictate that because revenge is a form of "wild justice," the "more ought law to weed it out." F. Bacon, Of Revenge, in Essays or Counsels--Civil and Moral, reprinted in 3 Harvard Classics 15 (C.W. Eliot ed. 1909).

FACTS

Plaintiff Robert Hughes, a New York City Police Sergeant since 1964, was assigned on September 10, 1979 to the Absence Control Unit of the Police Department's Health Services Division. His duties involved preventing abuse by police officers of the Police Department's unlimited sick leave policy. Deputy Chief Ryan, the commanding officer of the Health Services Division and Sgt. Hughes' supervisor in 1979-80, credited Hughes with reducing absenteeism and saving the Department several million dollars in 1980 as compared to 1979. Based on this performance, he recommended Hughes for a promotion to Sergeant Special Assignment with a concomitant raise.

The incident that triggered this litigation involved Police Officer Salvatore Troia, who was injured on December 28, 1979 while on duty at the 19th Precinct. According to his wife, Troia, despite suffering from physical pain and serious depression, appeared as ordered on October 9, 1980 for limited duty. The next day he committed suicide.

Appellant Burns--a police officer for over 30 years--was on "full excusal" from duty at the time of Troia's suicide and was serving as a First Vice-President of the PBA, the labor union representing police officers, and as a Trustee of the New York City Pension Board, which determined disability pensions for members of the police department. In 1979 Officer Burns was assigned to the 19th Precinct where he had served with his friend, Officer Troia. Burns testified at trial that two members of the Health Services Division, Sergeants Cruse and Powers, had visited Officer Troia at his home during his period of sick leave. But, according to Hughes, Troia had never been classified as a sick leave abuser and had never come under his supervision or investigation.

On October 10, 1980--the same date of Officer Troia's suicide--the PBA initiated its own investigation into what role the Health Services Division might have played in his death. The Police Department's official report concerning Troia's death concluded that Sergeant Hughes had no involvement with Troia during the period of sick leave.

The core of Hughes' claim against Burns and the PBA is that they blamed him for Troia's death and, as a result, embarked on a deliberate and malicious vendetta against him aimed at securing revenge. Hughes introduced evidence that the PBA hired two investigators to look into his involvement Hughes claimed that Burns, the PBA, and the Police Department conspired to transfer him out of the Health Services Division. After Troia's death, appellee was transferred involuntarily from Health Services to applicant processing, then to applicant investigations, and finally to street patrol in a Queens precinct. While on patrol Hughes sustained two injuries that eventually led to his retirement on a disability pension on December 10, 1986.

                in the suicide and that the PBA told the investigators that it wanted him transferred out of the Health Services Division "any way you can"--even if it meant framing him.  As a result of appellants' campaign of harassment and the false dissemination to Hughes' fellow officers that Sergeant Hughes was responsible for Troia's suicide, many referred to Hughes as "Dr. Death."    Hughes claimed that appellants' tactics resulted in harassment of him and his wife, caused him to be involuntarily transferred, discussed below, and denied him the promotion and raise recommended by Ryan.  A substantial amount of highly contested testimony was admitted concerning the nature of and activities constituting this campaign of harassment
                

PROCEEDINGS BELOW

Hughes instituted this action in 1982 against appellants and the New York City Police Department alleging federal civil rights claims pursuant to 42 U.S.C. Sec. 1983 (1982) and state common law tort claims. An amended complaint alleged the following three causes of action against Burns, PBA, and the New York City Police Department: prima facie tort, intentional infliction of emotional distress, and deprivation of civil rights. Jurisdiction was based on 28 U.S.C. Sec. 1331.

Appellants first objected to the district court entertaining jurisdiction when they moved under Fed.R.Civ.P. 12(b)(6) to dismiss appellee's complaint. They argued that, as private parties, they were not subject to liability under Sec. 1983 and hence, absent federal question jurisdiction under Sec. 1331, the district court also lacked pendent jurisdiction over the state law claims. The district court denied the motion to dismiss on the ground that a private defendant is subject to Sec. 1983 liability when that party willfully participates in joint activity with a state officer. See United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 1156-57, 16 L.Ed.2d 267 (1966). The court ruled that the complaint "clearly pleaded factual allegations which undoubtedly raise a claim pursuant to Sec. 1983" such that the court's jurisdiction rested either on Sec. 1331 or Sec. 1343 (jurisdiction over federal civil rights actions).

The case proceeded to trial and the jury found the PBA liable on the state law claims and awarded Hughes $370,000 in damages, allocated as follows: intentional infliction of emotional distress, $100,000; prima facie tort, $95,000; and punitive damages, $175,000. The jury found Burns liable on the same claims and awarded Hughes $400,000, allocated as follows: intentional infliction of emotional distress, $125,000; prima facie tort, $100,000; and punitive damages, $175,000. Hughes' total award from the jury amounts to $770,000. The New York City Police Department was not found liable on any grounds. Consistent with the joint activity theory that provided federal jurisdiction and the verdict as to the Police Department, neither the PBA nor Burns was held liable for violating Hughes' civil rights.

Subsequent to the jury trial and the entry of an adverse judgment, the PBA and Burns moved pursuant to Fed.R.Civ.P. 59 for a new trial, arguing that the finding of liability was against the weight of the evidence, that the jury award for both prima facie tort and intentional infliction of emotional distress constituted an improper double recovery, and that the overall damage award was grossly excessive. The district court rejected the challenges to the finding of liability and the amount of the overall award on the grounds that the evidence supported the jury's finding that the PBA and Burns "maliciously and deliberately destroyed" Hughes' career and that the award was not excessive. The district court also rejected appellants' objection to recovery under both state law tort theories.

After noting appellants' failure previously to advance their double recovery argument and their consent to the form and accompanying instructions furnished to the jury, the district court found that the jury form--which specified the amount of damages caused by each defendant for each tort--prevented the prohibited award of a "double recovery."

We reverse the judgment insofar as it found appellants liable under both tort theories and otherwise affirm.

DISCUSSION

Several arguments are made on appeal. First, appellants assert that the district court should have dismissed the federal claim--or not retained jurisdiction over it--and concurrently should have declined to exercise pendent jurisdiction over the state law claims. Second, they claim that the trial court misconstrued New York law when it permitted the jury to consider separate, non-exclusive damages for two intentional torts. Third, they argue that the overall damage award of $770,000 is grossly excessive. Appellants contend in addition that the evidence in support of the punitive damages award is insufficient, that damages arising from allegedly lost wages should not have been submitted to the jury, and that their cross-examination of Officer Troia's widow was improperly circumscribed. We discuss each argument in turn.

I Federal Jurisdiction

Appellants urge that from the inception of this suit not even a "scintilla" of evidence supported appellee's Sec. 1983 claim that the PBA and Burns conspired with the New York City Police Department to violate appellee's civil rights. They argue that Hughes contrived the federal civil rights suit in order to invoke pendent jurisdiction over the state claims. Jurisdiction in this case was wholly premised on allegations that a conspiracy existed between private pa...