Schumann v. McGinn

• Decision Date: 19 March 1976
• Docket Number: No. 45069,45069
• Citation: 307 Minn. 446,240 N.W.2d 525
• Parties: Richard SCHUMANN and Leah M. Peterson, Appellants, v. Michael McGINN, Respondent.
• Court: Minnesota Supreme Court

Page 525

240 N.W.2d 525

307 Minn. 446

Richard SCHUMANN and Leah M. Peterson, Appellants, v. Michael McGINN, Respondent.

No. 45069.

Supreme Court of Minnesota.

March 19, 1976.

Syllabus by the Court

1. In an action for injuries arising out of intentional shooting by a police officer, the trial court's error in framing the issues and instructing the jury in terms of negligence and contributory negligence rather than battery and a police officer's privilege to use a firearm so permeated the jury's answers to interrogatories as to require a new trial.

2. The defendant had the burden of proving that he had probable cause to believe that plaintiff was a felon and that he reasonably believed that he could not apprehend plaintiff without the use of his firearm, and the trial court's failure to so instruct the jury constituted reversible error.

3. A law-enforcement officer is privileged to use reasonable force to effect an arrest of a person who he has probable cause to believe is a felon, including the intentional discharge of a firearm upon or toward that person if he reasonably believes that he could not effect the arrest without such use of a firearm.

David W. Nord, James R. Tschida, St. Paul, for appellants.

R. Scott Davies, City Atty., Daniel L. Ficker, Asst. City Atty., St. Paul, for respondent.

Considered and decided by the court en banc.

NICHOLAS S. CHANAK, ^* Justice.

Plaintiff Richard Schumann, a minor (hereafter plaintiff), and his mother, plaintiff Leah M. Peterson, brought this tort action against the city of St. Paul (hereafter city) and Michael McGinn, a St. Paul police officer, as defendants. Officer McGinn (hereafter defendant) shot and seriously injured plaintiff, then 15 years old, on the morning of April 9, 1971, while the latter was in flight from an automobile stolen by him which collided with a parked car. Upon conclusion of plaintiffs' evidence, the trial court directed a verdict for defendant city. After a jury trial and upon a finding that defendant police officer was not negligent, judgment was entered in favor of that defendant. Plaintiffs appeal from the judgment and from the denial of their motion for a new trial. We reverse and remand for a new trial.

Viewing the evidence in the light most favorable to defendant, ¹ the jury could find the relevant facts to be as follows: On the morning in question at approximately 8 a.m. defendant left his home at 581 Portland Avenue, St. Paul, to purchase the morning paper. Off duty at the time, he was dressed in civilian clothes and carried his personal weapon, a Smith & Wesson .38-calliber snub-nose revolver. He drove a clearly marked St. Paul police department 'takehome' squad car, which he was authorized to use while off duty.

On the return trip, defendant, proceeding southerly on Kent Street, approached the intersection of Ashland Avenue and saw a 1965 Chevrolet station wagon traveling west on Ashland Avenue at an excessive rate of speed. As defendant observed, the vehicle made a left turn onto Kent Street and collided with an automobile parked on the east side of Kent. Immediately after the accident, while defendant was still crossing the intersection, two persons, apparently juveniles, got out of the passenger side of the Chevrolet, looked at defendant, yelled something into the car, and then ran. As defendant stopped his squad car near the intersection, another person alighted from the driver's side of the Chevrolet and without looking back ran south on Kent to the alley between Ashland and Holly Avenues and then east down the alley. Although plaintiff's back was turned, defendant could see that plaintiff was approximately 5 feet 8 inches tall and weighed 150 to 160 pounds. Defendant believed him to be a young adult approximately 18 years old.

Determining on the spot not to radio for assistance, Officer McGinn chose to pursue plaintiff on foot. As he jumped out of the squad car, defendant shouted, 'Stop, police.' As he chased plaintiff, defendant repeatedly shouted similar warnings, finally calling out, 'Stop or I'll shoot.' When plaintiff ignored the warnings and continued to run, defendant fired a warning shot into the ground. Plaintiff only ran faster, leaning forward in a crouched position. Defendant again yelled, 'Stop or I'll shoot.' When this warning failed to produce results, defendant deliberately aimed and fired a shot, intending to hit plaintiff in the lower part of his body. At the time defendant fired the second shot, he was 60 to 80 feet behind plaintiff, running down the alley. Although defendant did not come to a complete stop, he had both feet on the ground and was aiming and sighting the weapon at the time the shot was fired. Instead of striking the plaintiff in the buttocks or legs, the bullet struck plaintiff in the nape of the neck, permanently crippling him.

Officer McGinn testified that he believed the Chevrolet to have been stolen and used his firearm because he believed that he was making a felony arrest and that he could not effect an arrest without using such firearm. He based that conclusion on the following facts: (1) From police training, he learned that vehicles of the brand and vintage involved here are popular with car thieves; (2) the occupants of the Chevrolet ran when they saw his marked squad car, as youthful car thieves commonly do; (3) the Chevrolet had no rear license plate; (4) the Chevrolet was driven in a reckless manner; and (5) the area in which the incident occurred was a high-crime area. Plaintiff had stolen the station wagon in Wisconsin, although that fact was not known to the St. Paul police at the time of the incident, nor was the vehicle listed on the 'hot sheet' supplied police officers.

After the shooting, Officer McGinn radioed for assistance. Within a minute, another officer was at the scene. Within 6 to 7 minutes, 5 or 6 squad cars had arrived and some of the officers had already rushed plaintiff to the hospital.

In their complaint, plaintiffs alleged defendant's liability on two theories--battery ² and negligence. The trial court submitted the case to the jury on the theory of negligence alone. In response to special interrogatories, the jury found that Officer McGinn was not negligent, that Richard Schumann was negligent, and that Schumann's negligence was the proximate cause of his own injury. Consequently, the trial court ordered judgment for defendant.

The issues before us on this appeal are: (1) Did the trial court err in framing the issues and instructing the jury in terms of negligence rather than battery? (2) Did the trial court err in instructing the jury as to the scope of a policeman's privilege to use a firearm in making a felony arrest? (3) Did the trial court err in directing a verdict for Officer McGinn's employer, the city of St. Paul?

The Negligence Instruction

In their complaint, plaintiffs alleged that defendant had committed the tort of battery. The complaint stated in relevant part:

'That defendant police officer McGinn committed an unjustifiable assault and battery upon plaintiff Richard Schumann by intentionally firing his pistol so as to cause the bullet to strike Richard Schumann in the back of his neck.'

During the trial, the two alternative theories of liability became blurred. At the beginning of the trial, the plaintiffs took the position that defendant's conduct constituted either a battery or a negligent tort, but during the course of the trial, it appeared that plaintiffs were claiming that a negligent battery had occurred.

The trial court framed the issues solely in negligence terms. He instructed the jury in relevant part as follows:

'The real test, or the gravamen of this case, is whether or not the defendant, Officer Michael McGinn, was negligent on April 9, 1971. * * *

'* * * (I)f you find that the officer failed to act on reasonable or probable cause or acted absent a reasonable belief that he couldn't effect the arrest without deadly force, then you may find that the officer was negligent, that is, that he breached his duty to apply reasonable standards in his conduct. Recall that the burden to establish or prove that he breached such a standard is on the plaintiff, Richard Schumann. * * *

'* * * If you find that Richard Schumann breached a duty to use reasonable care as I have defined it, you may find him negligent. The burden to prove his negligence in this instance is upon the defendant. * * *

'* * * (I)n the event you find the parties equally negligent, that is, 50 percent, the plaintiff cannot recover. If the defendant is more than 50 percent negligent plaintiff would recover a percentage of his claim. * * * Of course, if plaintiff is more than 50 percent negligent then plaintiff is entitled to nothing.'

The special interrogatories submitted to the jury were standard comparative negligence interrogatories. ³

The trial court failed to instruct the jury as to the elements of the tort of battery. Plaintiffs argue that this failure on the part of the trial court constituted reversible error.

Proposed instructions and proposed interrogatories submitted to the trial court by plaintiffs' counsel did not explicitly set forth the two different theories of liability, but they did set forth the substance of the elements of the tort of battery and the substance of law officers' privilege to employ firearms. The interrogatories would have asked the jury expressly whether Officer McGinn had probable cause to believe that Richard Schumann had committed a felony and whether Officer McGinn used excessive force in effecting the arrest. After the jury retired to deliberate, plaintiffs' counsel objected to the court's failure to instruct on the battery theory.

Defendant argues that the instructions were correct as given. He contends, first, that the excessive use of force by a police officer may sound in negligence rather than in battery. Second, he claims that even if the instruction was improper, giving it was harmless error in...