Meyer v. City and County of Honolulu

• Decision Date: 17 September 1986
• Docket Number: No. 10705,10705
• Citation: Meyer v. City and County of Honolulu, 729 P.2d 388, 6 Haw.App. 505 (Haw. App. 1986)
• Court: Hawaii Court of Appeals
• Parties: James MEYER, Abel Wood, Jr., Francis Pustka, and P & S Pacific, Inc., Plaintiffs-Appellants, v. CITY AND COUNTY OF HONOLULU, Honolulu Police Department, Francis Keala, Modesto Ramos, Jr., and Robert Burns, Defendants-Appellees.

Page 388

729 P.2d 388

6 Haw.App. 505

James MEYER, Abel Wood, Jr., Francis Pustka, and P & S Pacific, Inc., Plaintiffs-Appellants, v.CITY AND COUNTY OF HONOLULU, Honolulu Police DepartmentFrancis Keala, Modesto Ramos, Jr., and Robert Burns, Defendants-Appellees.

No. 10705.

Intermediate Court of Appeals of Hawai'i.

Sept. 17, 1986.

Syllabus by the Court

1.False arrest and false imprisonment as tort claims are distinguishable only in terminology.The essential elements of both false arrest and false imprisonment are (1) the detention or restraint of one against his will, and (2) the unlawfulness of such detention or restraint.

2.Favorable termination of prior criminal proceedings in favor of the plaintiff is not an element of false arrest.

3.Where an in limine order may have erroneously precluded the admission of certain evidence, but the record discloses that such evidence was admitted at trial, there was no prejudicial effect and the error was harmless.

4.Where the trial court excluded the admission of evidence of the plaintiff's permanent and future damages in the absence of expert testimony substantiating the claim, there was no abuse of discretion.

5.Rule 404(a), HRE, bars character evidence in civil actions when offered circumstantially to prove likelihood of particular conduct on a particular occasion.

6.Exceptions (1) and (2) relating to character of accused and character of victim, respectively, in Rule 404(a), HRE, apply in criminal cases only, and not in civil cases.

7.Rule 404(b), HRE, precludes the use of evidence of any specific instance of conduct when the only relevance is in the two-step inference from "other" conduct to general character and then "to show that he acted in conformity therewith" on the occasion in question.

8.Under Rule 405(b), HRE, specific instances of a person's conduct may be proved where his character or trait of character is an essential element of a charge, claim, or defense.

9.In an assault and battery civil action against two police officers, their alleged violent and aggressive characters were not an essential element of the assault and battery claim or self-defense, but simply probative of an element of the claim or defense, and specific instances of violent or belligerent acts allegedly committed by them were properly excluded as evidence.

10.A point not argued in the briefs will be deemed waived on appeal.

11.In a 42 U.S.C. § 1983 action, where the jury expressly found that the police officers had not deprived the plaintiffs of their constitutional rights, neither the chief of police nor the municipal employer may be liable under § 1983.

Fred Paul Benco, Honolulu, for plaintiffs-appellants.

James R. Aiona, Jr., Deputy Corp.Counsel, Office of the Corp. Counsel, Honolulu, for defendants-appellees.

Before HEEN, Acting C.J., TANAKA, J., and PATRICK K.S.L.YIM, Circuit Judge, in place of BURNS, C.J., Recused.

TANAKA, Judge.

PlaintiffsJames Meyer(Meyer), Abel Wood, Jr.(Wood), Francis Pustka(Pustka), and P & S Pacific, Inc.(P & S)(collectively Plaintiffs) appeal from (1) the summary judgment in favor of defendantCity and County of Honolulu(City)¹ and Francis Keala(Keala) and (2) the judgment based on the jury's special verdict in favor of defendantsModesto Ramos, Jr.(Ramos) and Robert Burns(Burns).Plaintiffs contend that (1)the trial court erred in granting the summary judgment because there were genuine issues of material fact for the jury to resolve and (2) the erroneous granting of certain motions in limine resulted in the unfavorable verdict and judgment.We affirm.

This is basically an alleged police brutality case arising out of an incident that occurred in the early morning hours on July 5, 1980, in Wahiawa, Oahu.Ramos and Burns are police officers with the Honolulu Police Department(HPD).Keala was then the HPD's chief of police.

On June 29, 1982, Plaintiffs filed a five-count complaint.²Count I alleged that Ramos and Burns "intentionally, willfully and maliciously attacked and beat Plaintiffs Meyer, Wood and Pustka, without provocation[.]"Count II alleged that Ramos and Burns arrested Meyer and Wood without "probable cause or an arrest warrant[.]"Count III alleged that Ramos and Burns "violated 42 U.S.C. §§ 1983and1985" by "depriving Plaintiffs of their civil rights while acting under color of state law," and that the City was responsible for their acts "under the theory of respondent[sic] superior."³Count IV alleged that the City and Keala were negligent in retaining Ramos on the police force despite "numerous charges of brutality" filed and disciplinary action taken against him.Count V alleged that because of the tortious acts of Ramos and Burns, P & S "lost the services of its employees Meyer and Wood, and suffered special damages[.]"

On November 28, 1984, the trial court granted defendants' motion for partial summary judgment as to: (1) all claims against Keala, (2)the 42 U.S.C. § 1983 claim against the City, and (3)the 42 U.S.C. § 1985 claim against all defendants.

On the morning of March 25, 1985 when trial was scheduled to begin, defense counsel filed five motions in limine which the trial court granted in most part.Thereafter, the jury trial commenced.After Plaintiffs rested, the court directed a verdict in Burns' favor on Wood's assault and battery claim.⁴On April 3, 1985, the jury rendered a favorable verdict for Ramos and Burns.After judgment was entered on the verdict, Plaintiffs appealed.

We will first discuss Plaintiffs' challenge of the in limine orders and then examine the summary judgment in favor of Keala and the City.

I.EVIDENCE OF TERMINATION OF PRIOR CRIMINAL PROCEEDINGS

Plaintiffs contend the trial court erred in granting the defense motion in limine"which precluded evidence that charges against Meyer were dropped from being presented to the jury" on the basis that such evidence was admissible to show "good grounds for a subsequent malicious prosecution action by the supposed defendant."We disagree.

Plaintiffs' contention would have been correct if Meyer had a pending claim for malicious prosecution, an essential element of which would be "that the prior proceedings were terminated in the [plaintiff's] favor[.]"Brodie v. Hawaii Automotive Retail Gasoline Dealers Ass'n, Inc., 2 Haw.App. 316, 318, 631 P.2d 600, 602(1981), rev'd on other grounds, 65 Haw. 598, 655 P.2d 863(1982).However, the trial court ruled Meyer had "no claim for malicious prosecution,"⁵Transcript by Nakata, Vol. Iat 10, and Meyer has not appealed this ruling.

Meyer alleged a claim for false arrest.Since "a person who is falsely arrested is at the same time falsely imprisoned," false arrest and false imprisonment as tort claims are "distinguishable only in terminology."32 Am.Jur.2dFalse Imprisonment§ 2 at 59(1982).For both false arrest and false imprisonment, the essential elements are "(1) the detention or restraint of one against his will, and (2) the unlawfulness of such detention or restraint."Id. at § 5.See alsoW. Prosser & W. Keeton, Law of Torts, § 11 (5th ed. 1984).

Favorable termination of prior criminal proceedings in favor of the plaintiff is not an element of false arrest.Therefore, the fact that charges against Meyer were dropped in the prior criminal proceeding was not admissible into evidence and the trial court did not err.SeeLeong v. Honolulu Rapid Transit, 52 Haw. 138, 472 P.2d 505(1970);Ferreira v. General Motors Corp., 4 Haw.App. 12, 657 P.2d 1066(1983).

II.EVIDENCE OF CONSPIRACY

Plaintiffs next contend the trial court erred in granting the defense motion in limine precluding "testimony as to appellees' conspiracy to violate appellants' civil rights from being presented to the jury."This contention is not supported by the record.

The only allegation of conspiracy in the complaint appears in count III regarding violation of Meyer's and Wood's civil rights.Paragraph 20(c) alleges that "Defendants ... [i]nitiated, aided and conspired for the malicious and unfounded criminal prosecution of Plaintiff Wood[.]"At the time the trial court granted the motion in limine, the City and Keala had already prevailed on the 42 U.S.C. §§ 1983and1985⁶ claims by way of summary judgment.

Thus, Plaintiffs were properly precluded from presenting any evidence of conspiracy involving the City and Keala.The record discloses that Plaintiffs were permitted to elicit a complete range of testimony of Ramos' and Burns' acts, individually and in concert, statements, and feelings regarding the arrest of Meyer and the arrest and prosecution of Wood.Consequently, if the trial court's in limine order was wrong with respect to Ramos and Burns, there was no prejudicial effect and such error was harmless.

III.EVIDENCE OF FUTURE DAMAGES

Citing McKeague v. Talbert, 3 Haw.App. 646, 658 P.2d 898(1983), Plaintiffs claim the trial court erred in granting the defense motion in limine excluding"evidence of Meyer's permanent and future damages" from being presented to the jury by other than a medical expert since Meyer's damages were "plainly apparent."We disagree.

McKeague is distinguishable.In McKeague, the defendant objected to the jury instruction on future damages, claiming a lack of expert testimony "establishing future pain and suffering as a reasonable medical probability."Id.3 Haw.App. at 658, 658 P.2d at 907.However, a neurologist, who had treated the plaintiff, testified that the plaintiff"would achieve relatively complete recovery within four to eight months" after the plaintiff's medical examination which occurred on September 15, 1980. Id.3 Haw.App. at 659, 658 P.2d at 908.The trial began on February 4, 1981.This court held the neurologist's testimony "sufficient for the jury to find that plaintiff would continue to face pain and suffering at least until the time [the neurologist] indicated probable complete recovery[.]"Id.

Here, in their November...