Johnson v. Ray

• Decision Date: 06 January 1981
• Docket Number: No. 79-114,79-114
• Citation: 299 N.W.2d 849,99 Wis.2d 777
• Court: Wisconsin Supreme Court
• Parties: Glenn W. JOHNSON, Plaintiff-Respondent, v. Donald RAY, Dennis Forss and Stanley Christiansen, Defendants-Appellants- Petitioners.

Page 849

299 N.W.2d 849

99 Wis.2d 777

Glenn W. JOHNSON, Plaintiff-Respondent, v. Donald RAY, Dennis Forss and Stanley Christiansen Defendants-Appellants- Petitioners.

No. 79-114.

Supreme Court of Wisconsin.

Argued Nov. 24, 1980.

Decided Jan. 6, 1981.

Stuart J. Krueger, River Falls, argued for defendants-appellants-petitioners; C. M. Bye and Gaylord, Bye, Rodli & Krueger, S. C., River Falls, on brief.

Dane F. Morey, Durand, argued for plaintiff-respondent; Whelan, Morey, Ricci & Chambers, S. C., Durand, on brief.

STEINMETZ, Justice.

This case was tried to a jury, the Hon. John G. Bartholomew presiding, in Pierce County circuit court. The verdict of the jury found for the plaintiff as to liability, and cause, and damages were awarded. The court of appeals, 95 Wis.2d 736, 291 N.W.2d 660, affirmed the verdict as to liability and cause, and reversed and ordered a new trial on damages. This decision was by two appellate judges with Foley, J., dissenting. Judge Foley would grant a new trial on all issues, not just the damage issue.

Plaintiff and defendants have petitioned this court for review. The plaintiff seeks affirmation of the trial court and the defendants seek a new trial on all issues.

The trial judge submitted three questions to the jury. They were:

"Question No. 1: Did the Defendants, Stanley Christiansen, Donald Ray, and Dennis Forss, at and immediately prior to arresting and detaining the Plaintiff, Glenn W. Johnson, under all of the circumstances then present and existing, use more force than was reasonably necessary in the performance of their duties as reasonable and prudent law enforcement officers?

"Question No. 2: Was such excessive force by said Defendants a cause of any injury sustained by the Plaintiff?

"Question No. 3: What sum of money will fairly and reasonably compensate Glenn W. Johnson in each of the following respects:

"A.) Medical, hospital and drug expenses to date?

"B.) Loss of earnings to date?

"C.) Out-of-pocket payments to truck loaders and unloaders?

"D.) Pain, suffering and disability to date?

"E.) Loss of earning capacity in the future?"

Counsel for the defendants objected to the form of the damage question submitted and the use of civil instruction 1700 in the form used by the court. ¹

The trial judge reasoned that if the jury found the use of excessive force and found it to be the cause of damages that therefore all damages found in answers to subdivisions of question 3 would be awarded to plaintiff.

This objection to the verdict and instructions gives rise to the major issue in this case which is: On a finding of the use of excessive force by the police and that such force caused injury, is the plaintiff limited in recovery of damages sustained by the application of such excessive force?

This court rules "yes" as did the court of appeals. The trial court in the damage question form and instruction did not clearly so inform the jury. Contrary to the decision of the court of appeals, this court rules there must be a new trial on all issues in the interest of justice.

Due to facts and circumstances of this case as evidenced during the trial, no subsequent jury could assess the damages caused only by the excessive force as found by a previous jury. The liability, cause and damages issues in this case are all essential, like the links in a chain; remove one link and the chain loses vitality and integrity.

FACTS

The plaintiff Glenn Johnson admittedly was late for work and speeding on November 4, 1972, as he proceeded from Plum City to Ellsworth, Wisconsin, at about 3 a. m. His speed at times before he was stopped at the outskirts of Prescott was 75 to 85 miles per hour, by his testimony.

As he went through the 25 mile per hour zone in Ellsworth at 45 miles per hour, he was observed by police officers Ray and Forss. The officers began to pursue Johnson, although they did not turn on their official lights or siren. They did have the squad car headlights on. They were unable to catch up with Johnson although traveling at a speed of over 100 miles per hour. They radioed alert to the City of Prescott to request assistance. Responding to the call, Christiansen, a police officer for that city, set up a running roadblock at the city limits of Prescott.

As Johnson approached, Christiansen pulled his squad car out in front of Johnson's car. Christiansen's official car lights were flashing. To avoid colliding with the running roadblock, Johnson was forced to pull over to the side of the road. There is considerable conflict in the testimony as to what then transpired.

The officers contend that Johnson exited his car and began using loud and abusive language. They asked to see Johnson's driver's license, and he showed it to them but would not physically hand it over to them. The officers contend that when Ray shined his flashlight into the backseat of Johnson's car, Johnson swung his arm knocking the flashlight to the ground and hitting Ray in the stomach all in one motion. At that point, the officers attempted to handcuff Johnson, who resisted by holding his hands in front of his body, clasping his license, and refusing to allow his arms to be brought behind his body. After a struggle in which one officer grabbed Johnson's head and forced it downwards, he was handcuffed and no further resistance was offered. The officer testified he forced Johnson's head downwards since Johnson was directing his head towards officer Ray's face in a very direct and forceful manner. Johnson was issued two speeding citations and was then released.

Johnson claims that the first police car he saw that morning was the vehicle that suddenly pulled out in front of him outside of Prescott. He claims he gave his license to the officers when they asked for it. He denied knocking a flashlight out of any officer's hand or striking any of them. Johnson admits he passively resisted being handcuffed and claims that an officer struck the back of his neck forcefully three times until he allowed himself to be handcuffed.

Johnson brought suit against the officers for assault and battery. He claimed that the beating produced neck and back injuries as well as anxiety and depression. A jury found that the officers used excessive force in arresting Johnson and awarded him approximately $116,000. The trial court denied the officers' post-trial motions for a change in the verdict answers or for a new trial and entered judgment on the jury verdict.

There was no claim that the officers were acting outside their authority or that the arrest itself was illegal. Therefore, the officers were privileged to use whatever force was reasonably necessary to make the arrest. McCluskey v. Steinhorst, 45 Wis.2d 350, 173 N.W.2d 148 (1970).

In Wirsing v. Krzeminski, 61 Wis.2d 513, 213 N.W.2d 37 (1973) this court adopted the principle applicable to police officers making arrests as found in Restatement, Torts 2d, p. 193, sec. 118:

" 'The use of force against another for the purpose of effecting his arrest ... (is) privileged if all the conditions stated in secs. 119-132 ... exist.'

"The principal condition is stated in sec. 132, page 236, which points out that, although force is privileged to effect an arrest, it 'is not privileged if the means employed are in excess of those which the actor reasonably believes to be necessary.' Comment a to sec. 132 states that, although a police officer's privilege of self-defense is pertinent to this issue:

" '... if the actor is making or attempting to make an arrest for a criminal offense he is acting for the protection of the public interest and is permitted even a greater latitude than when he acts in self-defense, and he is not liable unless the means which he uses are clearly excessive.'

"These principles of the Restatement are consonant with leading cases heretofore decided by this court. Bursack v. Davis (1929), 199 Wis. 115, 225 N.W. 738; Metzinger v. Perry (1928), 197 Wis. 16, 221 N.W. 418; Ogodziski v. Gara (1921), 173 Wis. 371, 181 N.W. 227."

The principle is clear that one who has police authority to maintain the peace has a privilege to use force, and the question then becomes simply whether the force was excessive for the accomplishment of the purpose. The reasonableness of the force depends upon the facts of each case, and is a question to be resolved by the jury.

In McCluskey v. Steinhorst, 45 Wis.2d 350, 173 N.W.2d 148 (1970), the court accepted the test for reasonable force as defined in 5 Am.Jur.2d, Arrest, sec. 81 (1962) as follows:

" 'What amounts to reasonable force on the part of an officer making an arrest usually depends on the facts in the particular case, and hence the question is for the jury. The reasonableness of the force used must be judged in the light of the circumstances as they appeared to the officer at the time he acted, and the measure is generally considered to be that which an ordinarily prudent and intelligent person, with the knowledge and in the situation of the arresting officer, would have deemed necessary under the circumstances.' "

The burden upon the plaintiff is that which is commonly referred to as the middle burden of proof, midway between that required in ordinary actions (a preponderance of the evidence), and that required in criminal actions (beyond a reasonable doubt). The proof required to establish excessive force is by a clear and satisfactory preponderance of the evidence. Wirsing v. Krzeminski, 61 Wis.2d 513, 213 N.W.2d 37 (1973).

The trial judge in the instant case applied the rule in the Wirsing case, however, there were distinguishing factors in these cases. In the Wirsing case all injuries claimed clearly were caused by the officer's physical actions and the only issues were whether excessive force was used in effectuating the arrest and if found then, all damages were resultant.

In this case, however, the plaintiff claimed not only the neck strain which was traceable to excessive force if found by the...