Mazzilli v. Doud, s. 83-2212

• Decision Date: 25 March 1986
• Docket Number: Nos. 83-2212,83-2217,s. 83-2212
• Citation: 485 So.2d 477,11 Fla. L. Weekly 732
• Parties: 11 Fla. L. Weekly 732 Vincent Charles MAZZILLI and Charles Story, Appellants/Cross-Appellees, v. James W. DOUD and the City of Hialeah, Appellees/Cross-Appellants.
• Court: Florida District Court of Appeals

Page 477

485 So.2d 477

11 Fla. L. Weekly 732

Vincent Charles MAZZILLI and Charles Story, Appellants/Cross-Appellees, v. James W. DOUD and the City of Hialeah, Appellees/Cross-Appellants.

Nos. 83-2212, 83-2217.

District Court of Appeal of Florida,

Third District.

March 25, 1986.

Leesfield & Blackburn and Mark A. Dresnick; Stinson, Lyons & Schuette and Douglas S. Lyons, Miami, for appellants/cross-appellees.

Fowler, White, Burnett, Hurley, Banick & Strickroot and Michael A. Mullen, Miami, for appellees/cross-appellants.

Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.

DANIEL S. PEARSON, Judge.

The appellants, Vincent Charles Mazzilli and Charles Story, were the plaintiffs below in a personal injury action against the City of Hialeah and one of its police officers, James Doud. A jury found, inter alia, that Doud committed an assault and battery upon the plaintiffs; that Doud was negligent and his negligence was the legal cause of the plaintiffs' damages (for which the City was responsible through the doctrine of respondeat superior ); that Doud had violated the plaintiffs' civil rights through his actions; that the damages to Mazzilli and Story were $400,000 and $900,000, respectively; and that Story's negligence was a thirty-five percent contributing cause of his injuries. The plaintiffs' claims that the City had violated their civil rights did not meet with similar success; the trial court found that the plaintiffs failed to sufficiently prove a custom or policy on the part of the City requisite to a finding of liability under Title 42, United States Code, Section 1983, and directed a verdict in the City's favor. It is this action by the trial court that forms the basis of the plaintiffs' appeal. The basis of the defendants' cross-appeal is their contention that the evidence is not sufficient to establish Doud's negligence and that the final judgment entered by the trial court, insofar as it awarded Story $900,000, did not conform to the verdict which found him thirty-five percent responsible for his damages. The defendant Doud separately contends that the evidence is not sufficient to establish the commission of an assault and battery or that he violated the plaintiffs' civil rights.

On the night of the events giving rise to this action, Mazzilli and Story were agents of the Drug Enforcement Administration, setting out to serve an arrest warrant on a suspected cocaine dealer. When they, and six other DEA agents in three additional unmarked vehicles, learned that their plan to serve the suspect upon his return to his residence might endanger the life of a confidential informant and that the suspect may have recognized Mazzilli as a federal agent during the tailing of the suspect's vehicle, a decision was made to effectuate the arrest immediately.

Story and Mazzilli pulled their vehicle in front of the suspect's, cutting it off at an intersection; the other DEA agents pulled in behind the suspect. Story and Mazzilli exited their vehicle, identified themselves as federal agents, and advised the suspect that he was under arrest. Gunfire came from the suspect's vehicle; Story, Mazzilli and other agents returned the fire. Enter Officer Doud, uniformed and driving a marked police car, on routine patrol for the City of Hialeah. Doud's first thought that a five-car automobile accident had taken place was dispelled when he heard gunfire. He stopped his vehicle and got out, service revolver in hand. Doud admitted at trial that he "had no idea who was there, what they were doing, or anything"; he believed a felony was being committed, but did not know who was committing it.

Story was attempting to subdue the driver of the suspect vehicle. As he reached inside the suspect's vehicle, one of the other two occupants of the vehicle shot Story in the right hip. The force of the gunshot spun Story around, and as he was falling, he was shot a second time by one of the occupants of the vehicle. Story fell to the ground wounded and began rolling away from the suspect's vehicle when he saw a police car and Officer Doud standing next to it. Doud was about fifteen feet away from Story. Story testified that he saw Doud's weapon "light up," and he felt a gunshot to his back left side. Story testified that he threw his hands out and yelled to Doud, "Police--don't shoot," but Doud fired again hitting the pavement next to Story. When Doud shot Story, Story's gun was empty and on the ground by the car eight feet away.

Mazzilli was shot in the back by Doud while Mazzilli was running away from the scene of the confrontation. Mazzilli's gun had run out of ammunition, and he was running in a direction opposite from the direction of Doud's vehicle. Although Doud claimed that Mazzilli had turned on him with a weapon, Mazzilli testified that he never turned towards Officer Doud.

We affirm the directed verdict for the City on the plaintiffs' claim that the City violated their civil rights. Essential to any recovery in an action brought against a municipality under Title 42, United States Code, Section 1983, is a showing that the alleged constitutional deprivation flowed from an official policy or custom of the municipality, and that the policy or custom was "the moving force of the constitutional violation." Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611, 638 (1978). Neither the evidence in this record, nor the evidence which the plaintiffs assert was wrongfully excluded, ¹ shows that Doud's actions in shooting at and wounding the plaintiffs occurred as a result of such a policy or custom.

On the cross-appeals, we affirm the judgment against Doud and the City entered on the jury's findings that Doud committed an assault and battery and was negligent. There was ample evidence to support these findings and, despite the defendants' contention to the contrary, ample evidence from which the jury could have concluded that Doud did not reasonably believe his use of force to be necessary either to defend himself or to effect the arrest of felons. See § 776.05, Fla.Stat. (1979).

Although it is true that the plaintiff Story was found to be thirty-five percent contributorily negligent, that does not, as the defendants urge, mean that the judgment in Story's favor must be reduced. As we have noted, the jury, in addition to finding Doud negligent, found that he had committed an assault and battery. ² Even as contributory negligence did not under former law bar an action for a tort legally classified as intentional, Deane v. Johnston, 104 So.2d 3 (Fla.1958), comparative negligence is not a defense to such a tort action under present law. Honeywell, Inc. v. Trend Coin Co., 449 So.2d 876, 879 (Fla. 3d DCA 1984). See Villines v. Tomerlin, 206 Cal.App.2d 448, 23 Cal.Rptr. 617 (1962) (contributory negligence no defense to assault and battery). Thus, the trial court correctly refused to reduce the $900,000 judgment in Story's favor.

Lastly, we agree with Doud's contention that the evidence is insufficient to establish that he violated the plaintiffs' civil rights. The United States Supreme Court has recently overruled its declaration in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), that mere lack of due care by a state official may deprive an individual of life, liberty or property under the Fourteenth Amendment to the United States Constitution and has now concluded that "the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty or property." Daniels v. Williams, 474 U.S. at ----, 106 S.Ct. at 663, 88 L.Ed.2d at 666 (1986) (emphasis in original). In the case before us, the jury, in answer to special interrogatories posed to them in the verdict form and as a predicate to its refusal to award punitive damages, expressly found that Doud was negligent only and that his negligence was not "willful, wanton or reckless" and did not exhibit "a disregard for the lives or safety of others." Therefore, even if, arguendo, "something less than intentional conduct, such as recklessness or 'gross negligence,' is enough to trigger the protection of the Due Process Clause," Daniels v. Williams, 474 U.S. at ---- n. 3, 106 S.Ct. at 667 n. 3, 88 L.Ed.2d at 670 n. 3, no such recklessness or gross negligence was found to exist here.

In sum, the directed verdict in favor of the City of Hialeah on the plaintiffs' claim that the City violated their civil rights is affirmed; the judgment against Doud on the plaintiffs' claim that he violated their civil rights is reversed, with directions to enter judgment in Doud's favor on that claim. There being no viable civil rights action against the defendants, the reservation of jurisdiction to award attorneys' fees is ordered stricken from the judgment. In all other respects, the final judgment under review is affirmed.

Affirmed in part; reversed in part.

JORGENSON, J., concurs.

SCHWARTZ, Chief Judge (specially concurring in part).

Although I agree with the majority's conclusion that there is no liability under 42 U.S.C. § 1983, ¹ I reach this determination on two grounds which both differ from the reasons assigned by the court.

1. First, I believe that the conduct of Officer Doud, the use of excessive force in effecting an arrest and in resisting a supposed attack upon him--although characterized by the law of Florida as involving the intentional tort of battery--does not amount to a "deprivation" of the plaintiff's due process rights within the meaning of § 1983. See Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 622 (1986). While the Supreme Court has never specifically determined this issue, see City of Oklahoma City v. Tuttle, 471 U.S. 808, ---- n. 4, 105 S.Ct. 2427, 2433 n. 4, 85 L.Ed.2d 791, 800 n. 4 (1985); see also Daniels, 474 U.S. at ---- n. 3, 106 S.Ct. at 667 n. 3, 88 L.Ed.2d at 670 n. 3 (reserving issues of whether recklessness or...