Trujillo v. Goodman, 84-2802

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Citation825 F.2d 1453
Docket NumberNo. 84-2802,84-2802
PartiesVernon TRUJILLO, Plaintiff-Appellant, v. Ronald GOODMAN, et al., Defendant-Appellee.
Decision Date07 August 1987

James A. Carleo, Colorado Springs, Colo., for plaintiff-appellant.

Lawrence J. Simons of Shaw, Simons & Quigg, P.C., Pueblo, Colo., for defendant-appellee.

Before HOLLOWAY, Chief Judge, ANDERSON, Circuit Judge, and BROWN, District Judge. *


Plaintiff Vernon Trujillo appeals from the denial of his post trial motion for judgment notwithstanding the verdict or, in the alternative, for a new trial on his claim alleging a violation of his civil rights under 42 U.S.C. Sec. 1983. The alleged civil rights violation arose out of an injury Trujillo suffered in an altercation with defendant police officer Ronald Goodman. For the reasons set forth below, we affirm.


On April 16, 1982, at approximately 11:30 p.m., Trujillo and his girlfriend were parked in his car in a vacant field in Alamoso, Colorado. Trujillo testified at trial that he and his girlfriend had been at a party earlier in the evening at which he had consumed at least two beers. Defendant, Officer Goodman, who had been with the City of Alamosa police department for two years, stopped to investigate the parked car. As Goodman approached the car, Trujillo got out of the car. Goodman testified that he "noticed Vernon had an odor of alcohol on his breath, and that there was a plastic cup next to the driver's door which was a plastic Coors cup." R. Vol. II at 8. When questioned by the officer, Trujillo denied that he had been drinking. While Goodman and Trujillo were talking, another police officer, Bruce Lukow, drove up and parked approximately 10-15 feet away from Goodman's car. Trujillo's girlfriend got out of the car, and she and Trujillo started to leave the vicinity of the car, telling Goodman that they would walk home.

Goodman ordered Trujillo to return to the area where the officer was standing. When Trujillo complied, Goodman reached out for Trujillo to detain him, because, as Goodman testified, Lukow had just informed him that he should arrest Trujillo if he had been drinking, because Trujillo was under age and had been recently arrested for driving while intoxicated. When Goodman reached out for Trujillo, Trujillo began to run away from the officer. Trujillo testified that he ran because he feared his father's reaction if he was arrested for drinking under age. Goodman testified that he was unable to pursue Trujillo because of a recent injury to his hip. Consequently, Goodman threw his heavy metal flashlight at Trujillo and struck him in the back of the head. The blow caused a depressed skull fracture which required immediate hospitalization and surgery. Co-plaintiff Joseph Trujillo, Vernon's father, incurred medical expenses of $5620.00 as a result of the injury.

On November 22, 1982, Trujillo filed a complaint in the United States District Court for the District of Colorado, alleging violations of 42 U.S.C. Secs. 1981, 1983 and 1988, and of the First, Fourth, Eighth and Fourteenth Amendments. He alleged pendent state law tort causes of action for negligence, outrageous conduct, assault and battery, false imprisonment and false arrest.

At the jury trial on August 6, 1984, Trujillo proceeded only on his battery and section 1983 claims. Goodman admitted at

trial that at the time Trujillo suffered the injury Goodman was acting as a police officer. He further testified that he was attempting to arrest Trujillo for drinking under age, and he admitted that he used "excessive force" when he threw the flashlight at Trujillo. Goodman stated at trial that the throwing of the flashlight "was just a spontaneous reaction" and that when he threw it he "was aiming at the biggest mass I could hit, which would probably be his back." R. Vol. II at 15. He testified that he did not intend to throw the flashlight in such a manner as to harm Trujillo and that throwing the flashlight was "a mistake". Id. at 16, 18

The district court instructed the jury that the "[d]efendant admits that while acting as an Alamosa police officer, he committed a battery by throwing a flashlight that hit the plaintiff." R. Vol. IV at 84. The court accordingly directed the jury to consider only the question of what damages Trujillo was entitled to as a result of the battery. The court also instructed the jury to award medical expenses of $5650.00 to Trujillo's father. With regard to the section 1983 claim, the court instructed the jury that the parties had stipulated that "at all material times the defendant was acting in his official capacity as a police officer of the City of Alamosa, Colorado" and "that at all material times the defendant was acting under color of law within the meaning of the federal statute, 42 U.S. Code, Section 1983." Id. at 86. The district court further instructed that "in throwing a flashlight at the plaintiff, the defendant exceeded his lawful authority under state law" and that "it is admitted that the force used was excessive." Id. at 91-92.

The jury awarded Trujillo $25,000.00 as actual damages for the battery claim and found for Goodman on the constitutional rights claim. The court entered judgment accordingly and subsequently denied Trujillo's motions for judgment n.o.v. or, in the alternative, a new trial on the issue of the civil rights violation. Trujillo appeals those denials, arguing that the use of "excessive and deadly force against the plaintiff while arresting him for a minor misdemeanor constitutes a deprivation of plaintiff's constitutional rights" and that Goodman "neither stated nor proved any legally recognized defense to his actions." Appellant's Brief at 4, 8. He seeks no additional damages.


Trujillo argues that the trial court erred in denying his motion for judgment n.o.v. Fed.R.Civ.P. 50(b) provides in pertinent part as follows:

Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted.... [A] party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict....

Id. (emphasis added).

"An appellate court may not consider the contention that the trial court erred in denying an appellant's motion for a judgment notwithstanding the verdict where the appellant failed to move for a directed verdict at the close of evidence, as required by Rule 50 of the Federal Rules of Civil Procedure." Firestone Tire & Rubber Co. v. Pearson, 769 F.2d 1471, 1478 (10th Cir.1985); Trotter v. Todd, 719 F.2d 346 (10th Cir.1983); Continental Baking Co. v. Utah Pie Co., 349 F.2d 122, 156 (10th Cir.1965), rev'd on other grounds, 386 U.S. 685, 87 S.Ct. 1326, 18 L.Ed.2d 406 (1967). Trujillo argues that the substance of his and the court's statements made it clear that he sought a directed verdict. Goodman responds that Trujillo failed to make a motion for directed verdict at the close of all the evidence and, therefore, is barred from seeking judgment n.o.v. now.

Although no formal motion appears, we find the record ambiguous as to whether Trujillo informally sought a directed verdict, either on or off the record. In addition,

we note that many courts, as well as commentators, have stated that "the courts have taken a liberal view of what constitutes a motion for directed verdict for the purpose of permitting a later motion for judgment n.o.v." 5A J. Moore, Moore's Federal Practice p 50.08 (1986 ed.); see also McKinnon v. City of Berwyn, 750 F.2d 1383, 1388 (7th Cir.1984) ("Something less than a formal motion for directed verdict may preserve a party's right to move for judgment notwithstanding the verdict."); Ebker v. Tan Jay Int'l, Ltd., 739 F.2d 812 (2d Cir.1984); Adjusters Replace-A-Car, Inc. v. Agency Rent-A-Car, Inc., 735 F.2d 884 (5th Cir.1984), cert. denied, 469 U.S. 1160, 105 S.Ct. 910, 83 L.Ed.2d 924 (1985); Villanueva v. McInnis, 723 F.2d 414 (5th Cir.1984); Acosta v. Honda Motor Co., 717 F.2d 828 (3d Cir.1983); Bohrer v. Hanes Corp., 715 F.2d 213 (5th Cir.1983), cert. denied, 465 U.S. 1026, 104 S.Ct. 1284, 79 L.Ed.2d 687 (1984); Moran v. Raymond Corp., 484 F.2d 1008 (7th Cir.1973), cert. denied, 415 U.S. 932, 94 S.Ct. 1445, 39 L.Ed.2d 490 (1974); see generally 9 C. Wright, A. Miller, & F. Elliott, Federal Practice and Procedure Sec. 2537 (1971 and Supp. 1986); but cf. Kinzenbaw v. Deere & Co., 741 F.2d 383 (Fed.Cir.1984), cert. denied, 470 U.S. 1004, 105 S.Ct. 1357, 84 L.Ed.2d 379 (1985); Martinez Moll v. Levitt & Sons, 583 F.2d 565 (1st Cir.1978); DeMarines v. KLM Royal Dutch Airlines, 580 F.2d 1193 (3d Cir.1978). Given the uncertainty in this record, and the general practice of construing liberally what constitutes a motion for a directed verdict, we are reluctant to refuse to consider Trujillo's motion for judgment n.o.v. on the ground that he failed to make a motion for a directed verdict. Thus, we will consider the merits of this issue. See Miller v. Premier Corp., 608 F.2d 973 (4th Cir.1979)

In reviewing the grant or denial of a motion for judgment n.o.v., "we employ the same standard of review as does the trial court." Ryder v. City of Topeka, 814 F.2d 1412, 1418 (10th Cir.1987) (citing Brown v. McGraw-Edison Co., 736 F.2d 609, 613 (10th Cir.1984); Joyce v. Atlantic Richfield Co., 651 F.2d 676, 680 (10th Cir.1981)). " 'Judgment n.o.v. is proper only when the evidence so strongly supports an issue that reasonable minds could not differ.' " Ryder, 814 F.2d at 1418 (quoting Delano v. Kitch, 663 F.2d 990, 1002 (10th Cir.1981), cert. denied, 456 U.S. 946, 102 S.Ct. 2012, 72 L.Ed.2d 468 (1982)); see also Symons v. Mueller Co., 493 F.2d 972, 976 (10th Cir.1974); Swearngin v. Sears Roebuck & Co., 376 F.2d 637, 639 (10th Cir.1967). Furthermore, "[w]e must view the evidence in the light most favorable...

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