Salazar v. City of Chicago

• Decision Date: 07 August 1991
• Docket Number: No. 89-3551,89-3551
• Citation: 940 F.2d 233
• Parties: Arturo SALAZAR, as Administrator of the Estate of Alejandro Salazar, Deceased, Plaintiff-Appellant, v. CITY OF CHICAGO, a municipal corporation; Walter Wells, Dennis Mangerich and Leo Marks, Police Officers of the City of Chicago, Michael Nowacki and Edward Cinkues, Paramedics of the Chicago Fire Department, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 233

940 F.2d 233

Arturo SALAZAR, as Administrator of the Estate of Alejandro

Salazar, Deceased, Plaintiff-Appellant, v. CITY OF CHICAGO, a municipal corporation; Walter Wells, Dennis Mangerich and Leo Marks, Police Officers of the City

of Chicago, Michael Nowacki and Edward Cinkues, Paramedics

of the Chicago Fire Department, Defendants-Appellees.

No. 89-3551.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 23, 1990.

Decided Aug. 7, 1991.

Donald T. Bertucci, Thomas A. Corfman, Andrew V. DePaul, argued, Berger & DePaul, Chicago, Ill., for plaintiff-appellant.

Mardell Nereim, argued, Terence J. Moran, Kelly R. Welsh, Asst. Corp. Counsel, Office of the Corp. Counsel, Chicago, Ill., for defendants-appellees.

Before WOOD, Jr., and MANION, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

MANION, Circuit Judge.

In the early morning hours of November 27, 1982, Alejandro Salazar made a fatal decision to drive his car after drinking excessively. At around 4:30 a.m., Salazar drove head-on into a parking meter, and then into the front wall of a Chicago restaurant. Salazar did not die instantly; rather, he died at around noon to 1:00 p.m. that day, several hours after police had taken him to the 19th District police station in Chicago and booked him for several traffic offenses.

Arturo Salazar, Alejandro's brother and the Administrator of Salazar's estate (and whom we shall refer to as the plaintiff), filed a lawsuit in federal court against the City of Chicago, Michael Nowacki and Edward Cinkues, paramedics who treated Salazar at the scene, Walter Wells, a police officer at the accident scene who arrested Salazar and ordered him taken to jail, and Leo Marks and Dennis Mangerich, the police lockup keepers at the 19th District station. The plaintiff sued all the defendants under 42 U.S.C. Sec. 1983, alleging that the defendants had deprived Salazar of his life without due process of law. The suit also alleged pendant state law claims against the defendants.

At the close of plaintiff's evidence, the district court directed a verdict for Wells, Marks, and Mangerich on the Sec. 1983 claims against them, and for the City on the plaintiff's claim that a policy or custom of the Chicago Police Department had deprived Salazar of his life without due process. After trial, the jury entered a verdict for paramedics Cinkues and Nowacki on the Sec. 1983 claims against them. The jury could not reach a verdict on the state law claims against any of the defendants. The jury also rendered no verdict on the plaintiff's claim against the City that a policy or custom of the Chicago Fire Department (which employed the paramedics) had deprived Salazar of his life without due process; despite the fact that he had not directed a verdict on that claim, the trial judge did not instruct the jury concerning that claim, and the verdict forms did not provide for a verdict for that claim. Since the plaintiffs did not object, we conclude the issue was waived.

The district court set a date for a new trial on the state law claims. The day before trial was to commence, the plaintiff moved to dismiss those claims without prejudice for lack of subject matter jurisdiction. The district court denied that motion. When the plaintiff's attorney told the court he would stand on his motion and not proceed to trial, the court dismissed the state law claims for want of prosecution.

The plaintiff has appealed the district court's judgment on all claims. The appeal raises several issues, the most significant of which are the proper standard of conduct to apply to the paramedics' and officers' actions to determine if those actions violated Salazar's due process rights, and the application of that standard to the facts of this case. The appeal also raises issues about the City's liability, and several evidentiary and instruction errors that the plaintiff argues require a new trial.

I.

Shortly after Salazar ran his car into the restaurant, paramedics Nowacki and Cinkues arrived at the scene. Although they saw no outward sign of injury, it was obvious to them Salazar had been drinking. Nowacki took Salazar's vital signs, all of which were normal. Salazar's skin color and moisture also were normal, and the pupils of his eyes were responsive and equal. Nowacki began to examine Salazar by palpating Salazar's body. Salazar, however, stopped the examination and refused further service. When Nowacki and Cinkues asked Salazar if he wished to be taken to a hospital, Salazar responded, "no scene ... no hospital."

Sergeant George Head of the Chicago police arrived at the accident scene shortly after Nowacki and Cinkues. When Head arrived, he noticed extensive damage to the front end of Salazar's car. Salazar at that time was lying on the ground. Head did not hear Salazar answer any questions posed to him by Nowacki and Cinkues, and did not hear Salazar say anything to anybody. When Salazar rose to his feet and tried to walk, Head saw Salazar stagger eight to ten feet down the street, sit down on the curb, and fall over. After toppling over, Salazar righted himself. Head attributed Salazar's behavior to intoxication; in the rear seat of Salazar's car, Head had found a "balsa bag," a type of flask used in Mexico for drinking beverages. Head did not hear Salazar complain of any pain or injury, and saw no signs of injury. According to Head, Salazar "looked absolutely fine" except for his inebriation.

The Chicago police also dispatched Officer Wells to the accident scene. Wells arrived shortly after Head, while Head, Nowacki, and Cinkues were still at the scene. Wells noticed that Salazar appeared dazed, staggered when he tried to walk, and appeared to lose consciousness briefly. However, Wells could tell Salazar was intoxicated and he attributed Salazar's actions to his intoxication. Wells noticed no visible sign of injury to Salazar, and one of the paramedics told Wells that Salazar had refused medical service. Salazar did not complain about any pain or injury, and did not ask to go to the hospital.

Thinking that Wells and the paramedics had the situation well in hand, Head left the scene. The paramedics left soon after, leaving Wells with Salazar. Wells decided to arrest Salazar and charge him with various traffic offenses, including driving under the influence of alcohol. When Wells told Salazar about the charges, Salazar, who was sitting on the curb, laid back on the sidewalk with his hands under the back of his head and smiled at Wells.

A squadrol soon arrived to take Salazar to the police station. The squadrol officers helped Salazar to his feet and escorted Salazar to the wagon. Salazar staggered while walking to the squadrol, but Wells attributed that to Salazar's inebriation.

The squadrol arrived at the police station at about 5:25 a.m. Salazar walked into the station under his own power, and asked to use the washroom. Wells said he could, and Salazar walked to the washroom unescorted. After Salazar returned from the washroom, he and Wells went to an interview room, where Wells completed paperwork concerning Salazar's case. Sometime during this process, Salazar vomited. Wells attributed this to Salazar's drunkenness. There was no blood in Salazar's vomit, something Wells would have interpreted as a sign of possible injury, and that would have led Wells to insist on taking Salazar to a hospital. Salazar also again asked to use the washroom, which he walked to under his own power. He then returned to the interview room. Wells finished his paperwork, and took Salazar to the lockup at around 6:30 a.m.

Marks and Mangerich were the lockup keepers at the station. Marks knew from Salazar's paperwork that Salazar had been in an automobile accident. He also knew Salazar was drunk. He did not, however, know Salazar had been injured. Mangerich did not even know Salazar had been in an automobile accident. He saw Salazar walking without assistance. Marks asked Wells about Salazar, and Wells told him that paramedics had treated Salazar at the scene and that Salazar had refused to go to a hospital.

Because Salazar was drunk, Marks and Mangerich placed Salazar in the cell closest to the front desk, a cell within their hearing if Salazar should call out. In the cell was a television camera which fed a picture to a monitor at Marks' and Mangerich's desk. The monitor was on continuously. Either Marks or Mangerich toured the lockup every fifteen minutes, and the watch commander and sergeant also inspected the lockup while Salazar was there.

During their inspections, Marks and Mangerich saw Salazar at various times walking back and forth in the cell and lying down in different parts of the cell. At times, he would lie down on one of the two cots (actually, two steel slabs protruding from the cell wall) in the cell, and at other times he would lie down on the cell floor. Salazar also appeared in various states of undress, at one point lying on the floor with his pants off and his underwear pulled down around his knees.

Neither Marks nor Mangerich knew Salazar was suffering from any injury until around noon, when Mangerich found Salazar lying on the floor motionless. Salazar was discolored and cool to the touch, and Mangerich could feel only a faint pulse. Marks and Mangerich called a fire department ambulance. The paramedics who arrived found Salazar in cardiac arrest. After performing various emergency procedures on Salazar, the paramedics took Salazar to Illinois Masonic Hospital, where he was pronounced dead at 2:52 p.m.

An autopsy revealed that Salazar died from a traumatic laceration of the liver caused by the automobile accident. According to a medical expert, a thin membrane, the consistency of Saran Wrap, surrounds the liver. When Salazar's liver was injured, it bled into the surrounding membrane, which did not tear at the time of the accident. The membrane stopped the bleeding for a while but after it ruptured the bleeding resumed and Salazar...