Sherrod v. Berry

Decision Date20 August 1987
Docket NumberNo. 85-3151,85-3151
Parties23 Fed. R. Evid. Serv. 708 Lucien SHERROD, Individually and as Administrator of the Estate of Ronald Sherrod, deceased, Plaintiff-Appellee, v. Willie BERRY, Frederick Breen and the City of Joliet, a municipal corporation, Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

William W. Kurnik, Kurnik and Cipolla, Arlington Heights, Ill., for defendants-appellants.

Andrew J. Horwitz, Horwitz and Assoc. Ltd., Chicago, Ill., for plaintiff-appellee.

Before CUMMINGS and COFFEY, Circuit Judges, and SWYGERT, Senior Circuit Judge.

CUMMINGS, Circuit Judge.

Plaintiff filed this lawsuit individually and as administrator of the estate of his deceased 19-year-old son, Ronald Sherrod. The third amended complaint was in two Counts. The first Count was for wrongful death and alleged that defendant Willie Berry, a Joliet, Illinois, policeman, violated 42 U.S.C. Sec. 1983 when he shot and killed Ronald. Berry supposedly violated "the customary standard police procedures for making felony stops of motor vehicles and investigating the occupants therein, thereby setting in motion a chain of events which resulted in the death of Ronald Sherrod on December 8, 1979." Berry was also charged with violating national standards of police procedure as to the proper use of a gun and with using unreasonable force against Ronald.

Plaintiff additionally alleged in Count I that the other defendants, Joliet Chief of Police Frederick Breen and the City of Joliet, violated the same statutory provision, inter alia, through conduct "that resulted in a policy of the use of excessive force," and through failure to train and supervise Joliet police officers with respect to the proper procedures for stopping vehicles and the use of force. Plaintiff sought $13,000,000 for loss of support in Count I.

In Count II, based upon the "right to raise a family," plaintiff complained that defendants deprived him of his liberty without due process of law and his "right to the enjoyment of the result of rearing a child, his right to raise a child, [and] his right to raise a family as he sees fit." Count II sought $1,000,000 compensatory damages.

Under Count I the jury awarded Ronald's estate $850,000 for the value of his life, $300,000 for pecuniary loss to the estate and $1,700 for funeral expenses. Under Count II plaintiff individually was awarded $450,000 for the loss of parental association with Ronald. The total award was $1,601,700. In ruling on defendants' motion for remittitur, the district judge decided that the verdicts of the jury were not excessive and added that were it in his power he would have granted an additur instead of ordering a remittitur (Defendants' App. 52).

The evidence showed that on Saturday afternoon, December 8, 1979, Gary Duckworth stole $50 to $80 from a cash register at Ziggy's Plant and Gift Shop in Joliet. The owner, Janet Youngquist, went to an adjacent shop and was there directed toward Duckworth as he approached his parked car. He ran away, discarding the money which Ms. Youngquist retrieved. The police were then called and informed that there had been a robbery at the shop. Soon thereafter, the fleeing Duckworth entered Sherrod's auto repair shop and asked for a jump start for his car, which he had left near Ziggy's shop. He and Ronald left the auto repair shop in Ronald's black 1969 Cadillac, with Ronald driving.

After defendant Berry heard a radio dispatch about the robbery, he told fellow officer Richard Klepfer that the description of the suspect fit Gary Duckworth, who had been involved in petty crimes such as purse snatchings in the past, but who, according to Berry, had never committed any acts of physical violence (Tr. 1144). The dispatch did not suggest that a weapon had been used in the robbery and did not describe the suspect as being armed. Indeed a subsequent dispatch reported that a "sneak thief" had taken some money and that an employee had managed to retrieve it after giving chase. 1 Berry, accompanied by Klepfer, drove a Scout to investigate the robbery and saw Duckworth and Ronald, both blacks, in the 1969 Cadillac in a parking lot behind a bank near Ziggy's. Berry assertedly recognized Duckworth from 100 feet away. The Cadillac began to exit the bank parking lot at 5 miles per hour. Berry signaled the Cadillac to stop a few feet to the left of the driver's side of the police car. Berry dangerously chose to confront the car head-on instead of following recognized procedures for a proper felony stop, whereby he would have positioned his car behind the Cadillac, allowing him to observe the occupants and radio for assistance from other officers if necessary. The Cadillac obeyed all of Berry's commands, but the officers drew their guns on a hunch that Duckworth was the Ziggy store robber. Berry pointed his gun at the Cadillac and ordered Ronald and Duckworth to raise their hands, which they did. 2 As Berry approached the Cadillac on foot, Ronald, who was the driver, moved his right hand, which was clenched in a tight fist, toward the center of his chest. Berry testified that Ronald placed his right hand into the left inside pocket of his coat (Tr. 1132-1133). At that point, Berry fired his gun directly at Ronald's left temple, killing him instantly. Berry later claimed that he thought Ronald was pulling a gun when Ronald, who was unarmed, put his hand into his jacket. 3 Instead he was apparently reaching for a driver's license. Berry purportedly believed that Ronald might have been an armed robber because he was in Duckworth's company.

The following October Berry resigned from the Joliet Police Department, although he had not been disciplined with respect to the Sherrod killing. Both plaintiff and his wife requested Chief Breen to delete a reference on Ronald's death certificate which implied that he was a suspected robber and to discipline Berry. After several visits from Mrs. Sherrod, Breen threatened her with arrest if she tried to see him again. Being unsuccessful with Breen or the City, plaintiff filed this suit.

Before the incident involved in this lawsuit, Berry had been involved in other incidents in which he resorted to violence. On one occasion, Berry beat a suspect over the head with a flashlight and on another occasion he shot at a suspected burglar. Defendant police chief Breen told Berry after the second incident that he should not have used deadly force on the suspect. On still another occasion, Berry pulled his revolver while engaged in an altercation with his future brother-in-law. No serious sanctions were ever imposed on Berry as a result of these other incidents, although Chief Breen testified that Berry was suspended for 10 days following the incident with his brother-in-law.

The defendant police chief testified in detail about the training given to police officers, and the disciplinary procedures that were in place to deal with misconduct by officers. As to the incident involving Ronald, Breen testified that it might have been appropriate for a police officer to shoot a robbery suspect if the suspect moved his hand into his pocket, as Ronald allegedly did, and if the officer feared for his life or that of another. He concluded that Berry had been justified in shooting Ronald.

Expert testimony was received in evidence to show that Ronald's death was caused because Breen and Joliet did not curb the use of excessive force by its police officers and did not maintain proper procedures for vehicle stops. According to the testimony, Berry should have radioed the Police Department before acting on his own. He also should have consulted fellow officer Klepfer and should not have arranged a head-on stop with the Cadillac.

Economist Stanley Smith testified that Lucien Sherrod's opportunity loss due to Ronald's death was $513,000 because he was unable to take his planned retirement. He also testified that the economic loss to Ronald's estate was $598,000 and that the "hedonic [pleasurable] value" of Ronald's shortened life caused his estate a $1.5 million to $15 million social loss. As already noted, the jury awarded much lesser amounts.

Judge Leighton filed an opinion allowing Ronald's estate to recover for the value of his life, relying on various authorities. Sherrod v. Berry, 629 F.Supp. 159 (N.D.Ill.1985). The opinion upheld economist Stanley Smith's testimony concerning the hedonic or pleasurable value of a person's life.

I. Jury Instructions

Plaintiff asserts that defendants have waived their right to object to various jury instructions by failing to comply with the specific procedures of Rule 51 of the Federal Rules of Civil Procedure. However, the defendants did file their proposed instructions with the court and the trial judge told them that it would be satisfactory if they merely named those whose refusal they protested instead of cataloguing their objections (Tr. 1704-1705). Subsequently he filed an extensive memorandum opinion disposing of the refusal to give certain defense instructions and the giving of certain plaintiff's instructions (Defendants' App. 1-53). Plaintiff has fully responded to the alleged errors raised by the defendants (Br. 27-39). Under these circumstances defendants should not be penalized by having their objections deemed waived. Bowley v. Stotler & Co., 751 F.2d 641, 646-647 (3d Cir.1985); Stewart v. Ford Motor Co., 553 F.2d 130, 140 (D.C.Cir.1977); Irvin Jacobs & Co. v. Fidelity & Deposit Co. of Maryland, 202 F.2d 794, 801 (7th Cir.1953). We therefore turn to the merits of the claims of error with respect to the instructions.

Defendants contend that the trial court committed reversible error in refusing to give four instructions. In pertinent part their tendered instruction No. 26 would have told the jurors that if the defendants were merely negligent, the jury must find in their favor. The district court refused to accept that argument by...

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    • August 4, 2016
    ...2d 30, 34-35 (1995); Montalvo v. Lapez, 77 Haw. 282, 303 fn. 24 , 884 P. 2d345, 366 (1994). The court commented that Sherrod v. Berry , 827 F. 2d 195 (7th Cir. 1987), upon which the plaintiff relied, was implicitly limited or overruled in Mercado , supra . Checklist 1. Make certain that you......
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    • James Publishing Practical Law Books Archive Qualifying & Attacking Expert Witnesses - 2015 Contents
    • August 4, 2015
    ...395, 54 Cal. Rptr. 3d 207 (2007), §424 Sherman v. Kasotakis, 314 F. Supp. 2d 843, 871-872 (N.D. Iowa 2004), §551.1.10 Sherrod v. Berry , 827 F. 2d 195 (7th Cir. 1987), §551.2.4 Shipp v. General Motors Corp. , 750 F.2d 418 (5th Cir. 1985), §561.5 Show v. Ford Motor. Co., 659 F.3d 584, 587-58......
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    ...2d 30, 34-35 (1995); Montalvo v. Lapez, 77 Haw. 282, 303 fn. 24 , 884 P. 2d345, 366 (1994). The court commented that Sherrod v. Berry , 827 F. 2d 195 (7th Cir. 1987), upon which the plaintiff relied, was implicitly limited or overruled in Mercado , supra . CHECKLIST 1. Make certain that you......
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    • James Publishing Practical Law Books Archive Qualifying & Attacking Expert Witnesses - 2016 Contents
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    ...395, 54 Cal. Rptr. 3d 207 (2007), §424 Sherman v. Kasotakis, 314 F. Supp. 2d 843, 871-872 (N.D. Iowa 2004), §551.1.10 Sherrod v. Berry , 827 F. 2d 195 (7th Cir. 1987), §551.2.4 Shipp v. General Motors Corp. , 750 F.2d 418 (5th Cir. 1985), §561.5 Show v. Ford Motor. Co., 659 F.3d 584, 587-58......
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