Petro v. Town of W. Warwick

• Decision Date: 07 September 2012
• Docket Number: C.A. No. 09–213 S.
• Citation: 889 F.Supp.2d 292
• Parties: Karen PETRO, as Administratrix of the Estate of Mark Jackson, Plaintiff, v. TOWN OF WEST WARWICK, by and through its Finance Director Malcolm A. MOORE; Patrick J. Kelley, individually and in his representative capacity; Sean Lukowicz, individually and in his representative capacity; and Scott Thornton, individually and in his representative capacity, Defendants.
• Court: U.S. District Court — District of Rhode Island

889 F.Supp.2d 292

Karen PETRO, as Administratrix of the Estate of Mark Jackson, Plaintiff,

v.TOWN OF WEST WARWICK, by and through its Finance Director Malcolm A. MOORE; Patrick J. Kelley, individually and in his representative capacity; Sean Lukowicz, individually and in his representative capacity; and Scott Thornton, individually and in his representative capacity, Defendants.

C.A. No. 09–213 S.

United States District Court,

D. Rhode Island.

Sept. 7, 2012.

John P. Barylick, Stephen P. Sheehan, Wistow & Barylick Incorporated, Providence, RI, for Plaintiff.

Brian J. Clifford, Karen K. Corcoran, Marc DeSisto, DeSisto Law, Providence, RI, for Defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

WILLIAM E. SMITH, District Judge.

In the wake of Mark Jackson's death while in police custody, Plaintiff Karen Petro, as Administratrix of Mark Jackson's Estate, brought this action against the Town of West Warwick (the “Town”) and West Warwick Police Officers Patrick Kelley, Sean Lukowicz, and Scott Thornton, individually and in their representative capacities (collectively, the “Defendants”). The Complaint alleges claims against Officers Kelley, Lukowicz, and Thornton for the violation of Jackson's constitutional rights, assault and battery, and gross negligence; Plaintiff further alleges a respondeat superior claim, related to the gross negligence and assault and battery claims, against the Town.

Although the facts of this case are seemingly straightforward—indeed, the pertinent events took place within a relatively short time period and much of it was recorded on video—the case nonetheless presents numerous novel, important, and difficult issues of law.

The Court presided over a nine-day bench trial, beginning on October 31, 2011. After trial, the Court posed written questions to the parties, which they were invited, but not required, to answer in their post-trial briefs. Thereafter, the parties submitted post-trial briefs and reply briefs. After considering the evidence presented at trial and the pre-trial and post-trial memoranda submitted by the parties, the Court makes the following findings of fact and conclusions of law, pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. To the extent that any finding of fact reflects a legal conclusion, it should be, to that extent, deemed a conclusion of law, and vice versa.

Many of the facts found below are based on a video of the back lot of the West Warwick Police Department (“WWPD” or the “Department”), recorded by the WWPD's own recording system.¹ ( See generally Ex. 12.)

I. Findings of Fact

A. Mark Jackson

Mark Jackson was 47 years old when he died on June 27, 2008. (Ex. 7a.) At the time of his death, he was a large man, standing 6'2? and weighing over 250 pounds. (Ex. 5.)

Jackson had suffered from psychiatric or neurological disorders for at least fifteen years prior to his death. (Ex. 7c.) His diagnoses over the years included organic delusional disorder, post-traumatic stress disorder, and schizophrenia. (Exs. 7c, 7g, 7j, 7m.) According to the exhibits and testimony admitted at trial, Jackson had no reported history of any acute phase or acute episode of schizophrenia. (Trial Tr. vol. 5, 91, Nov. 4, 2011; Exs. 7a–7m.)

Jackson lived a socially isolated and circumscribed life. (Trial Tr. vol. 5, 44–45, 59–60, 93–94.) For many years leading up to his death, his social contacts consisted of spending the day and evening with his mother. ( Id. vol. 5, 44–45; Trial Tr. vol. 6, 228–229, Nov. 8, 2011; Ex. 7m.) He drove his mother around to do her errands and watched television in her apartment at 88 West Warwick Avenue in West Warwick, Rhode Island. (Trial Tr. vol. 5, 44–45; id. vol. 6, 215.) Otherwise, his regular routine, which he followed “like clockwork” according to the testimony of one witness who saw him regularly, consisted of going outdoors to smoke and walking to several businesses within a one-block radius of his mother's home for tobacco products, coffee, and fast food. ( Id. vol. 5, 44–45; id. vol. 6, 228–229.)

According to Social Security assessments and the testimony of Debra Pinals, M.D., a psychiatrist who provided expert testimony on behalf of Plaintiff, Jackson had severe difficulties communicating with and understanding others as a result of his disability. ( Id. vol. 5, 33–34, 37–38, 45, 93–94; Exs. 7g, 7m.)

Jackson's condition had remained relatively constant, and he had not taken medication for his condition for many years. (Trial Tr. vol. 4, 68, Nov. 3, 2011; id. vol. 5, 77–78; Exs. 7g, 7m.) He relied on routines that minimized social contacts to compensate for his difficulties in social interaction and communicating with others. (Trial Tr. vol. 4, 68–70; id. vol. 5, 45.)

With the exception of his mother, Jackson kept to himself and limited his communications with others to what was required to make his purchases. ( Id. vol. 2, 70, 73, Nov. 1, 2011; id. vol. 5, 108–09.) A shop owner and a neighbor testified that they never saw Jackson do anything inappropriate. ( Id. vol. 2, 54–55; id. vol. 5, 112.)

In the center of the oddly-configured block in which Jackson's mother's apartment is situated, there is a parking lot immediately adjacent to his mother's apartment building. ( Id. vol. 6, 222–24; Ex. 30.) This parking lot is shared by Joyal's Liquors (“Joyal's”), a liquor and tobacco store located at 90 West Warwick Avenue, and the residents of a multi-family house that is located in the middle of the parking lot, with the street address of 241 Brookside Avenue. (Trial Tr. vol. 2, 50–51.)

The parking lot is open to the street and partially fenced in back. (Ex. 30.) This parking lot is also used as a shortcut in the neighborhood with access to 88 West Warwick Avenue via a short path. (Trial Tr. vol. 2, 56–57; id. vol. 5, 103–04; Ex. 30.)

Jackson purchased tobacco products daily from Joyal's. (Trial Tr. vol. 5, 111.) His mother did not allow him to smoke in her apartment, so he typically went out to smoke many times a day. ( Id. vol. 6, 214; id. vol. 5, 44–45.) He regularly used Joyal's back parking lot as a place to smoke, both during the day and in the evening. ( Id. vol. 2, 54, 62.) The owner and employees of Joyal's and the tenants of the apartment building located at 241 Brookside Avenue were aware of Jackson's habit. ( Id. vol. 2, 54, 62; id. vol. 5, 106, 108.)

Jackson was not a violent person. ( Id. vol. 2, 70; id. vol. 5, 43–44, 112.) His medical and psychiatric records and the records of the Rhode Island Attorney General's Office reflect no prior involvement with law enforcement and no history of violent behavior. ( Id. vol. 5, 34–36; id. vol. 7, 174, Nov. 9, 2011; Exs. 7j, 18.) Indeed, the only reported instances of Jackson acting out or losing his temper were an instance when he saw children throwing rocks and shouted at them to stop and another instance when he became agitated because he believed his mother was driving too fast. (Trial Tr. vol. 5, 43–44.)

B. The Encounter

On the morning of June 27, 2008, following his usual practice, Jackson drove to his mother's apartment and spent the day there. ( Id. vol. 6, 216–17.) As she did from time to time, Jackson's mother gave him permission to spend the night. ( Id. vol. 6, 214–15.) Jackson was in his normal, calm, baseline condition when he went outside to Joyal's back parking lot to smoke at approximately 11:00 p.m. that evening. ( Id. vol. 4, 68; id. vol. 5, 29–30; id. vol. 6, 215.)

Also at approximately 11:00 p.m. that night, a WWPD dispatcher contacted Officers Sean Lukowicz and Patrick Kelley, who were on patrol that evening, and provided them with the following dispatch: “In front of Brookside at West Warwick of Joyal Liquors. Subjects vandalizing the Joyal Liquor sign.” (Ex. 8b.) Lukowicz and Kelley heard this dispatch. (Trial Tr. vol. 1, 6, 131, Oct. 31, 2011; id. vol. 2, 76, 79–80.)

When they received the call, Lukowicz and Kelley were in their respective patrol cars. They were parked in the parking lot of a closed business up the street, having a conversation. ( Id. vol. 1, 6; id. vol. 2, 76.) It was a warm Friday evening, and there were many people out and about on the streets. ( Id. vol. 1, 7; id. vol. 2, 78.) Joyal's was not located in a high-crime area. ( Id. vol. 7, 197–98.)

Lukowicz and Kelley immediately proceeded in their separate patrol cars to Joyal's. They were both familiar with the signs located one above the other in front of Joyal's, near the curb on the corner of West Warwick Avenue and Brookside Avenue, each having driven by the signs hundreds of times. ( Id. vol. 1, 8; id. vol. 2, 80; Ex. 50.) The officers approached Joyal's from the west and were able to see the signs from West Warwick Avenue. (Trial Tr. vol. 1, 8–9; id. vol. 2, 83–84.) Kelley pulled his patrol car into the front parking lot at Joyal's, which gave him another vantage point to observe the signs. Lukowicz pulled his patrol car onto Brookside Avenue, giving him a vantage point to observe the signs from that side. ( Id. vol. 2, 84–85.) Kelley observed the signs and saw no damage. While Lukowicz testified that he did not recall whether he observed the signs, he did recall that he saw no damage or anything suspicious in the front parking lot. ( Id. vol. 1, 9; id. vol. 2, 84–85, 94.) ² Joyal's was closed at that time of night. ( Id. vol. 1, 14.)

Kelley then drove his patrol car out of the front parking lot of Joyal's onto Brookside Avenue, proceeded a short distance, and pulled into the parking lot behind the store. ( Id. vol. 2, 85–86; Ex. 2 at 3.) That parking lot is illuminated by three large halogen lights such that it is fairly well-lit at night. (Trial Tr. vol. 5, 98; Exs. 51, 52.) Lukowicz followed Kelley to the parking lot and parked to the right of Kelley's patrol car; they both had their headlights illuminating the loading dock at Joyal's. (Trial Tr. vol. 1, 20–22; id. vol. 2, 86.) Kelley, in particular, was quite familiar with this back parking lot, having patrolled the...