Taken Alive v. Litzau, 76-1451

• Decision Date: 23 February 1977
• Docket Number: No. 76-1451,76-1451
• Citation: 551 F.2d 196
• Parties: Delores TAKEN ALIVE, Appellant, v. Melvin LITZAU et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 196

551 F.2d 196

Delores TAKEN ALIVE, Appellant, v. Melvin LITZAU et al., Appellees.

No. 76-1451.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 12, 1977.

Decided Feb. 23, 1977.

Albert A. Wolf, Bismarck, N. D., for appellant.

Murray Ogborn, Lincoln, Neb., for appellees.

Before LAY, ROSS and WEBSTER, Circuit Judges.

ROSS, Circuit Judge.

This action was brought under 42 U.S.C. § 1983 for damages arising out of an incident at the McLaughlin, South Dakota police station on November 3, 1973. The plaintiff Delores Taken Alive, an Indian woman, sued Melvin Litzau, a city police officer, for injuries caused by Litzau during the course of what Litzau claimed was an arrest. The plaintiff also sued Robert Quinn, Chief of the McLaughlin City Police Department, for damages based on Quinn's allegedly negligent supervision of Litzau. The jury found defendant Litzau liable and rendered a verdict in the amount of $10,000. A verdict was directed in favor of Quinn at the close of the plaintiff's case-in-chief.

The case comes before us from an order of the district court denying the plaintiff's motion for a new trial. Two issues are presented for review: 1) whether the jury verdict rendered in favor of the plaintiff is inadequate as a matter of law; and 2) whether the district court improperly directed a verdict in favor of the defendant Quinn at the close of the plaintiff's case. We affirm the judgment below.

On November 2, 1973, the day before the incident, plaintiff's husband was arrested for public intoxication while riding as a passenger in the family car. Pursuant to police and B.I.A. policy, the car was impounded in a privately owned garage. On November 3, 1973, the plaintiff went to the police station for the purpose of either obtaining a house key or a car key from her husband's key ring. A dispute developed between the plaintiff and the defendant Litzau concerning the keys. At the conclusion of the conversation, which lasted between ten to twenty minutes, Officer Litzau approached the plaintiff in order to exercise control over her person. ¹ Litzau then applied a "come-along hold" to the plaintiff's left arm by bending her left wrist downward, ² and pushed the plaintiff toward the front door of the police station in order to take her to a patrol car, where she was to be detained. As he removed the plaintiff from the police station, Officer Litzau was holding the plaintiff's right arm behind her back. Ms. Taken Alive was forced into a position facing the rear of the patrol car at which time Litzau applied more pressure to the right arm. ³ Litzau heard a cracking sound and, realizing she was hurt, placed the plaintiff in the patrol car and summoned help.

The plaintiff was indeed hurt. As a result of the force used by Officer Litzau to effect her detention, she suffered a spiral comminuted fracture of the distal aspect of the right humerus, and a chip fracture of both her left radius and ulna.

As stated, the jury found Litzau liable for the injuries and returned a general verdict for $10,000 compensatory damages. The jury returned a verdict in favor of the defendant Litzau on the issue of punitive damages. Police Chief Quinn was dismissed from the case after the plaintiff's case-in-chief.

I. Adequacy of the Jury Verdict.

In reviewing the trial court's refusal to set aside a jury verdict on the grounds of inadequacy or excessiveness, we apply the following standard:

* * * (I)nadequacy or excessiveness of a verdict is basically, and should be, a matter for the trial court which has had the benefit of hearing the testimony and of observing the demeanor of the witnesses and which knows the community and its standards; that this is a responsibility which, for better working of the judicial process and for other seemingly obvious reasons, is best placed upon its shoulders; * * * we shall continue to consider review, as we have said before, not routinely and in every case, but only in those rare situations where we are pressed to conclude that there is "plain injustice" or a "monstrous" or "shocking" result.

Solomon Dehydrating Co. v. Guyton, 294 F.2d 439, 447-448 (8th Cir.), cert. denied, 368 U.S. 929, 82 S.Ct. 366, 7 L.Ed.2d 192 (1961); see also Richardson v. Communications Workers of America, 530 F.2d 126, 129 (8th Cir.), cert. denied, 429 U.S. 824, 97 S.Ct. 77, 50 L.Ed.2d 86 (1976); Snodgrass v. Nelson, 503 F.2d 94, 96 (8th Cir. 1974) (per curiam). An appellate court should be extremely hesitant to overturn a jury verdict which includes damages for pain and suffering, which were included in the general verdict in this case. There is no precise or exact measuring stick for calculating general damages for pain and suffering. Although the jury should not pick a figure out of the air, exact compensation for pain and suffering is impossible. As stated in Mainelli v. Haberstroh, 237 F.Supp. 190, 194 (M.D.Pa.1964), aff'd, 344 F.2d 965 (3d Cir. 1965):

In the absence of more elaborate and explanatory guidelines for the jury in the somewhat elusive area of pain and suffering, we must expect substantial disparities among juries as to what constitutes adequate compensation for certain types of pain and suffering. This is a litigious fact of life of which counsel, clients and insurance carriers are fully aware. Once they place their fate in the hands of a jury, then they should be prepared for the result, whether the award be considered generously high or penuriously low. They cannot expect the Court to extricate them in all cases where the award is higher or lower than hoped for or anticipated.

We hold that the $10,000 verdict rendered in this case is not a "plain injustice" or a "monstrous" or "shocking" result.

We initially note that the jury returned a general verdict in excess of the amount of out-of-pocket losses claimed by the plaintiff. Thus we are not confronted with a case in which the jury failed to consider compensation for pain and suffering. Compare Brown v. Richard H. Wacholz, Inc., 467 F.2d 18, 21 (10th Cir. 1972).

Furthermore, the plaintiff's proof of her special damages at trial was exceedingly vague and confusing. Her own proof contained contradictory figures relating to her loss of wages, ⁴ and the proof relating to her husband's loss of wages was equivocal. There also appears to be some discrepancy between the amount of damages claimed and proved with respect to babysitting and travel expenses.

Because of the inadequacy of specific proof by the plaintiff, it is impossible to determine precisely what amount the jury awarded as special and general damages. It is apparent from the confusing state of the record that the jury could have found that the out-of-pocket damages were considerably less, and the general damages considerably more, than the amount claimed by the plaintiff. It would thus be exceedingly presumptuous of this court to overturn the jury verdict under these circumstances.

Furthermore, the record does show, and the jury was entitled to find, that the plaintiff suffered no permanent disability as a result of the incident. The plaintiff's orthopedic surgeon testified by deposition that the plaintiff should regain full strength and mobility in both of her arms, although he could not predict that she will never experience some pain in the future. We hold, therefore, that the $10,000 jury verdict for compensatory damages was within the discretion of the jury and is not inadequate...