Zuchel v. City and County of Denver, Colo., s. 91-1379

• Decision Date: 23 June 1993
• Docket Number: Nos. 91-1379,91-1395 and 91-1400,s. 91-1379
• Citation: 997 F.2d 730
• Parties: Leo and Arlene ZUCHEL, individually, and on behalf of the deceased, Leonard Zuchel, Plaintiffs-Appellees/Cross-Appellants, v. The CITY AND COUNTY OF DENVER, COLORADO, Defendant-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 730

997 F.2d 730

Leo and Arlene ZUCHEL, individually, and on behalf of the deceased, Leonard Zuchel Plaintiffs-Appellees/Cross-Appellants, v. The CITY AND COUNTY OF DENVER, COLORADO Defendant-Appellant/Cross-Appellee.

Nos. 91-1379, 91-1395 and 91-1400.

United States Court of Appeals Tenth Circuit.

June 23, 1993.

Rehearing Denied Aug. 23, 1993.

Theodore S. Halaby (Robert M. Liechty, with him on the briefs), Halaby, McCrea & Cross, Denver, CO, for defendant-appellant.

Wade H. Eldridge, Wade H. Eldridge, P.C., Denver, CO, for plaintiffs-appellees.

Before SEYMOUR, MOORE, and TACHA, Circuit Judges.

SEYMOUR, Circuit Judge.

The City and County of Denver (hereinafter Denver) appeals from a jury verdict and an award of attorneys fees in favor of Leo and Arlene Zuchel. The Zuchels brought this action individually and on behalf of their deceased son, Leonard Zuchel, seeking damages under 42 U.S.C. § 1983 (1988), for his death at the hands of a Denver police officer. The Zuchels cross-appeal from the district court's refusal to award prejudgment interest. For the reasons set out below, we affirm.

I.

The Zuchels sued Denver and Denver police officer, Frederick Spinharney, after Officer Spinharney shot and killed Leonard Zuchel while investigating a street incident. The Zuchels alleged that Officer Spinharney violated Leonard Zuchel's constitutional rights by using unreasonable and excessive force during the incident. They further allege that Denver's failure to adequately train its police officers constituted deliberate indifference to the constitutional rights of its citizens and was a direct cause of the shooting.

Officer Spinharney filed a motion for summary judgment asserting that he was entitled to qualified immunity. The district court denied the motion and the officer brought an interlocutory appeal. We affirmed the district court, concluding that material issues of fact precluded determining as a matter of law whether Officer Spinharney's conduct was objectively reasonable. Zuchel v. Spinharney, 890 F.2d 273, 275 (10th Cir.1989). The Zuchels subsequently settled their claim against Officer Spinharney and the case proceeded to trial only on the claim against Denver. The jury returned a verdict for the Zuchels in the amount of $330,000. Denver moved for judgment notwithstanding the verdict, alleging that the evidence was insufficient to support the jury verdict. The district court denied the motion.

Denver asserts on appeal that the trial court erred in denying its motion for j.n.o.v. because the evidence either is insufficient to support the jury's verdict or establishes Denver's right to judgment as a matter of law. In the alternative, Denver seeks a new trial on the basis of two evidentiary rulings by the trial court. Finally, Denver challenges the trial court's calculation of the attorneys fees awarded the Zuchels. The Zuchels challenge the lower court's refusal to award prejudgment interest. We address each argument in turn.

II.

Denver contends that the district court erred in denying its motion for j.n.o.v., arguing strenuously that the evidence does not support the jury's verdict. We begin our assessment of this claim by reiterating the standards governing our review of the trial court's ruling on a j.n.o.v. motion.

[W]e employ the same standard of review as does the trial court. 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." Delano v. Kitch, 663 F.2d 990, 1002 (10th Cir.1981) (citing 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)); see also Carter v. City of Chattanooga, 803 F.2d 217 (6th Cir.1986). We must view the evidence in the light most favorable to the party against whom the motion is made and give that party the benefit of all reasonable inferences from the evidence. Brown, 736 F.2d at 613; see also Martin v. Unit Rig & Equip. Co., 715 F.2d 1434, 1438 (10th Cir.1983). A reviewing court "is not permitted to consider the credibility of witnesses in reaching its decision ... nor may a court weigh the evidence or determine where the preponderance of the evidence lies." Martin, 715 F.2d at 1438 (citing Brady v. Southern Ry. Co., 320 U.S. 476, 479-80, 64 S.Ct. 232, 234, 88 L.Ed. 239 (1943); Wylie v. Ford Motor Co., 502 F.2d 1292, 1294 (10th Cir.1974)). Moreover, if there is conflicting or insufficient evidence to warrant a "one-way conclusion," a directed verdict or judgment n.o.v. is inappropriate. Id. Generally, a directed verdict or a motion for a judgment n.o.v. "should be cautiously and sparingly granted." Id. (quoting Black, Sivalls & Bryson, Inc. v. Keystone Steel Fabricating, Inc., 584 F.2d 946, 951 (10th Cir.1978)); see also Selle v. Gibb, 741 F.2d 896 (7th Cir.1984).

Ryder v. City of Topeka, 814 F.2d 1412, 1418 (10th Cir.1987).

The Zuchels' claim against Denver is based on the theory of municipal liability set out in City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). Accordingly, the Zuchels alleged that Denver was deliberately indifferent to the inadequacy of its police training program, and that this inadequacy was directly linked to Officer Spinharney's unconstitutional use of excessive force. In presenting this claim to the jury, the trial court instructed that:

In order for the plaintiffs, Arlene and Leo Zuchel, ... as personal representatives of the estate of Leonard Zuchel, to recover from the defendant City and County of Denver on their claim of deliberate indifference to the rights of persons with whom its police officers come in contact, ... you must find all of the following to have been proved:

First, that Officer Frederick Spinharney exceeded the constitutional limitations in the use of deadly force, in shooting Leonard Zuchel, as further defined in these instructions.

Second, that such use of deadly force arose under circumstances which constitute [a usual] and recurring situation with which police officers must deal.

Third, that there is a direct causal link between the alleged constitutional deprivation and the alleged inadequate training that the city provided to all its police officers on the constitutional limitations of the use of deadly force, in such usual and recurring circumstances.

And, fifth [sic, should be fourth] that the failure to ... train demonstrates a deliberate indifference on the part of the city's chief of police regarding persons with whom the city's police officers come into contact.

Now, deliberate indifference means an act or omission purposefully committed by a person who must have realized that the conduct was unnecessarily dangerous or which conduct was done heedlessly or recklessly, without regard to the consequences, or without regard to the rights and safety of others.

If you find that any one of these four propositions has not been proved by a preponderance of the evidence, then the verdict must be for the defendant.

On the other hand, if you find that all of these four propositions have been proved by a preponderance of the evidence, then your verdict must be for the plaintiff.

Aplee.App. at 369-71. Denver did not object to this or any instruction below and concedes on appeal that the jury was properly instructed. Indeed, the instructions are clearly correct under City of Canton, 489 U.S. at 389-91, 109 S.Ct. at 1205-06. Accordingly, we review the record to ascertain whether the evidence, when viewed most favorably to plaintiffs, is sufficient to support the jury's determination that the Zuchels established the above four factors by a preponderance of the evidence.

A.

The Zuchels were first required to establish that Officer Spinharney's use of deadly force was unconstitutional. In this regard, the court instructed the jury to "determine whether the force that Officer Spinharney used was reasonable as judged from the perspective of a reasonable officer on the scene." Aplee.App. at 371. The jury was further instructed to

allow for the fact that police officers are often forced to make split second judgments in circumstances that are tense and uncertain and rapidly evolving about the amount of force that is necessary in a particular situation.

This reasonableness inquiry in an excessive force case [is] an objective one. The question is whether the officer's actions are objectively reasonable, in light of the facts and circumstances confronting him, without regard to ... the officer's underlying intent and motivation.

Id. at 371-72.

The following undisputed facts provide a general description of the tragic events giving rise to this litigation. In the early evening of August 6, 1985, Leonard Zuchel created a disturbance at a fast food restaurant. The manager called the police, but Zuchel left the restaurant before they arrived. Officer Spinharney and his partner, Officer Teri Rathburn Hays, answered the call. The manager told them that Mr. Zuchel had gone around the corner and the officers went looking for him. In the meantime, Mr. Zuchel had become involved in a heated exchange with four teenagers on bicycles. When the officers approached Mr. Zuchel and the teenagers, one of them shouted that Mr. Zuchel had a knife. As the officers walked toward Mr. Zuchel and he turned toward them, Officer Spinharney shouted at Mr. Zuchel and then shot him four times. A pair of fingernail clippers was found near Mr. Zuchel's body.

Several people observed the shooting. One witness, Jeffrey Purvis, was on the outdoor terrace area of a restaurant across the street. Id. at 3. He testified that nothing interfered with his view of the incident. He heard a commotion and saw the teenagers approach Mr. Zuchel on their bicycles and begin arguing with him. One of the boys got off his bike and moved closer to Mr. Zuchel while...