Stallworth v. City of Cleveland

• Decision Date: 05 March 1990
• Docket Number: No. 88-3482,88-3482
• Citation: 893 F.2d 830
• Parties: Azalean STALLWORTH, and the Estate of Albert Stallworth, Plaintiffs-Appellees, v. CITY OF CLEVELAND, Defendant-Appellant, Sanford Currie, Lawrence Forgach, Raymond Gercar, William Hanton, Joseph Mismas, and Reginald Turner, in their official capacities, Defendants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 830

893 F.2d 830

Azalean STALLWORTH, and the Estate of Albert StallworthPlaintiffs-Appellees, v.CITY OF CLEVELAND, Defendant-AppellantSanford Currie, Lawrence Forgach, Raymond Gercar, William Hanton, Joseph Mismas, and Reginald Turner, in their official capacities, Defendants.

No. 88-3482.

United States Court of Appeals Sixth Circuit.

Argued June 15, 1989.

Decided Jan. 11, 1990.

Rehearing and Rehearing En Banc Denied March 5, 1990.

Keith E. Spero, Alan H. Kraus, Sperio & Rosenfield, Cleveland, Ohio, for plaintiffs-appellees.

Kathleen A. Martin, City of Cleveland Law Dept., Office of Director of Law, Cleveland, Ohio, for defendants-appellants.

Before KEITH and WELLFORD, Circuit Judges, and GILMORE, District Judge.^*

GILMORE, District Judge.

This case arises from an incident that occurred June 13, 1985, between PlaintiffAzalean Stallworth and DefendantSanford Currie, a Police Officer for the City of Cleveland.

On the date in question, Plaintiff was parked illegally outside the Bolton Elementary School in Cleveland, waiting for her grandchild.After she picked up the child, Defendant Currie, who was in a marked police car, asked her to move her car.Allegedly, she did not move quickly enough to satisfy officer Currie, and he opened plaintiff's car door, hit her in the mouth, and arrested her for failing to obey a lawful order and resisting arrest.

At the time of the incident, Officer Currie was on his regular shift, but outside his assigned zone.Additionally, he had his girlfriend and her daughter in the car, and was illegally parked himself.Officer Currie did not have permission to be outside his assigned zone.He was violating departmental rules by having civilians in his car and by failing to communicate his whereabouts to the police dispatcher.

Mrs. Stallworth sued the City of Cleveland, Currie, and other police officials under 42 U.S.C. Sec. 1983, alleging unreasonable arrest and prosecution, abuse of process and excessive use of force.She included state claims of false arrest, malicious prosecution, abuse of process, and assault and battery.Plaintiff also brought all claims except the Sec. 1983 claim and state law assault claim against Raymond Gercar, Richard Forgach, and Joseph Mismas, ranking Cleveland police officers, who arrived at the scene after the confrontation between Stallworth and Currie.She brought the Sec. 1983 claim against Currie, the City of Cleveland, its former police chief, William Hanton, and its former safety director, Reginald Turner.Under state law, on the theory of respondeat superior, Plaintiff also sued for the alleged torts of Currie, Gercar, Forgach, and Mismas.Finally, Plaintiff's husband, Albert Stallworth, made a claim under state law for loss of consortium.At the time of trial, he was deceased and his estate continued the prosecution of his state law claim.

For reasons set forth herein, we affirm the determination of the district court in regards to Mrs. Stallworth's claims.However, as to the estate of Mr. Stallworth, where damages were awarded for loss of consortium, we reverse.

I

Appellee's claims were tried in three phases.At the close of phase one, in response to special interrogatories, the jury found that Officer Currie had used excessive force, which shocked the conscience, against Mrs. Stallworth.It also found that she had suffered physical injuries, proximately caused by excessive force, but that Officer Currie had not made intentional physical contact with Mrs. Stallworth.

Over the objection of Appellant, the court determined that, in light of the jury instructions, the jury's answers were inconsistent, and the court instructed them to continue their deliberations.After further deliberation, the jury found that Officer Currie, while acting within the scope of his employment, had made intentional physical contact with Mrs. Stallworth.

In addition, the court directed a verdict for the officers who arrived at the scene after plaintiff was placed under arrest.The trial judge denied a directed verdict for the city on the state law claims based on respondeat superior.

At the close of phase two of the trial, the jury found that the City of Cleveland had a policy or custom of deliberate indifference to or tacit approval of the use of excessive force by its police officers, including Officer Currie.Nevertheless, it found that such policy or custom was not the proximate cause and moving force for Officer Currie's conduct.William Hanton, Chief of Police, Reginald Turner, Safety Director, and the City were found not liable for any claims arising under 42 U.S.C. Sec. 1983.

At the close of phase three of the trial, the jury determined that Officer Currie and the City of Cleveland were liable to Mrs. Stallworth in the amount of $40,000.The liability of the City of Cleveland was based upon respondeat superior.The jury also awarded Plaintiff's husband $3,000 for loss of consortium.

The trial court reduced the jury award by $669.65, pursuant to Ohio Law requiring the set-off of collateral benefits, and awarded pre-judgment interest of $11,238.33 against the city.He also added pre-judgment interest in the amount of $856.66 to the consortium claim.

The City presents four issues on appeal: 1) whether the trial court erred in requiring the jury to deliberate a second time, since the original findings of fact were not inconsistent, 2) whether the trial court erred in permitting the jury to consider various theories under the doctrine of respondeat superior, since Currie was acting outside the scope of his employment; 3) whether the trial court abused its discretion in granting prejudgment interest; and 4) whether the trial court erred in failing to dismiss the loss of consortium claim.

II

The first question is whether the trial court erred in requiring the jury to deliberate a second time because it found the findings of fact were inconsistent.The jury answered several interrogatories.Interrogatory Number 1 asked whether Officer Currie had used excessive force that shocked the conscience in his confrontation with Plaintiff.The jury answered yes.Interrogatory Number 2 asked whether Plaintiff had established, by a preponderance of the evidence, that she suffered physical injuries proximately caused by Defendant Currie's use of excessive force.To this also the jury answered yes.Interrogatory Number 6 asked specifically, "With respect to the state law claim of assault and battery, has the plaintiff established that Defendant Currie intentionally made physical contact with Mrs. Stallworth without her consent?"To this, the jury answered no.

The trial court determined that finding Currie had used excessive force was inconsistent with finding that Currie had not intentionally made contact with Mrs. Stallworth.The Court instructed the jury that their responses were inconsistent and directed them to deliberate further.The jury then changed its response to the state law claim of assault and battery, finding instead that Currie had intentionally made nonconsensual, physical contact with Mrs. Stallworth.Having found this, the jury then determined that Officer Currie was acting within the scope of his employment.Consequently, it found the City liable under the doctrine of respondeat superior.

In examining the findings of a jury, a trial court must attempt to harmonize responses to interrogatories submitted under Fed.R.Civ.P. 49.In Gallick v. Baltimore & Ohio Railroad Co., 372 U.S. 108, 83 S.Ct. 659, 9 L.Ed.2d 618(1963), the Court stated:

[I]t is the duty of the courts to attempt to harmonize the answers, if it is possible under a fair reading of them:..

Id. at 119, 83 S.Ct. at 666.

In Waggoner v. Mosti, 792 F.2d 595(6th Cir.1986), this court affirmed that duty.There, we stated:

Nevertheless, it is incumbent upon a trial court, as well as an appellantcourt, "to reconcile the answers if possible under any view of the evidence of the case."Sylvestri v. Warner & Swasey Co., 398 F.2d 598, 603(2d Cir.1968) ... (citations omitted).

Id. at 597.

The City contends that the trial court erred in not reconciling the jury's initial findings.It argues that reconciliation was possible because the evidence showed actions other than physical contact--yelling at the plaintiff to move her car, banging on the hood of the car, yanking the car door open--which the jury could have determined constituted excessive force.The City claims that, had the findings been properly reconciled, the City would not be liable under respondeat superior for Currie's assault and battery.

Plaintiff responds that the City's argument rests on a limited and narrow reading of the jury instructions.She contends that the jury instructions required the jury to find that Currie intentionally and unjustifiably punched her in the mouth in order to find that Currie used excessive force.She cites the following instructions as an example:

Mrs. Stallworth claims that excessive force was used by defendant Currie while he was investigating her alleged improper parking and failure to obey the officer's order to move her car.Specifically she claims he punched her, breaking her dentures and damaging her mouth with his fist.

If you find from the preponderance of the evidence that Officer Currie, without reasonable justification, punched Mrs. Stallworth in the mouth with his fist and thereby used greater force than was reasonably necessary in the circumstances, and that his conduct shocks the conscience, such conduct infringes on her constitutionally protected right to be free of excessive force and you must find Officer Currie liable for violating that constitutional right.

However, if you find that Mrs. Stallworth has failed to convince you from a preponderance of the evidence that Officer Currie punched her thereby using greater force than was reasonably necessary and that his conduct does not shock the conscience, then your verdict must be for officer Currie.

It is Plain...