Boulder Valley School District R-2 v. Price

805 P.2d 1085, 15 Brief Times Rptr. 103, 1991 Colo. LEXIS 42, 1991 WL 7577

• Court: Supreme Court of Colorado
• Decided: January 28, 1991
• Docket: 89SC406
• Status: Published

Opinions

Chief Justice ROVIRA

delivered the Opinion of the Court.

This case involves a claim arising under 42 U.S.C. § 1983 (1982 ed.) brought by respondent Gary D. Price against the Boulder Valley School District and David Zeckser, the principal at Casey Junior High School. Price alleged that he was constructively discharged from his tenured teaching position without the opportunity for a hearing in violation of section 1983. After the jury returned a verdict in his favor, the trial court entered a judgment notwithstanding the verdict (JNOV). In Price v. Boulder Valley School District R-2, 782 P.2d 821 (Colo.App.1989), the court of appeals reversed the grant of JNOV, remanded the case to modify the judgment, and ordered a new trial on the issue of punitive damages. We affirm in part and reverse in part.

I

Price began teaching school in the Boulder school district in 1967 and was granted tenure in 1970. Prom that time until 1975, his performance was satisfactory. Starting in 1975, Price began to encounter personal difficulties. Price took a leave of absence from teaching for the 1977-1978 school year. In 1978, he returned to teach at Platt High School, but his personal problems significantly affected his work performance. In addition to failing to assign and post grades, Price failed to turn in a student-grade book and some keys at the end of the school term.

The following school year, Price began teaching at Casey Junior High School, under the supervision of Zeckser. His performance did not improve. Price failed to comply with various rules that all teachers were required to follow, including grading papers and posting grades, taking attendance and posting absent lists, submitting lesson plans and course outlines, and staying minimum hours at school. In late August 1979, Zeckser orally instructed Price to turn in the keys and the grade books from his previous teaching assignment and to meet the other requirements. Price failed to correct the problems. On October 2, 1979, Zeckser met with Price to discuss the situation. Price informed. Zeckser of certain personal problems and Zeckser reminded Price of the requirements of his job and the possibility of discipline if there were no improvements. Zeckser outlined this meeting in a memorandum dated October 12, 1979, to which Price responded with a letter expressing his thoughts about leaving teaching. Zeckser and Price may have had other informal discussions prior to Price’s resignation.

On either October 19, or October 23, 1979, Price signed a letter of resignation. On either date, or perhaps both, Zeckser entered Price’s classroom, placed a typewritten letter of resignation on his desk, and discussed the possibility of his resigning. Price was told that if he did not sign the letter there would be a hearing. Price signed the resignation letter. The Boulder Valley School District (the District) accepted the resignation, and his employment was subsequently terminated.

Price brought suit under 42 U.S.C. § 1983¹ against Zeckser and the District, alleging that he had been constructively discharged without a hearing in violation of his due process rights. The case was tried before a jury. The jury instructions stated that punitive damages could be assessed against Zeckser if the jury found “beyond a reasonable doubt” that he acted in reckless disregard of Price’s rights. The jury returned two verdicts, one finding against the District in the amount of $60,000 and the other against Zeckser for $0. The jury did not award punitive damages.

The trial court entered a judgment notwithstanding the verdict (JNOV). The court of appeals reversed the trial court’s grant of JNOV; remanded the case to modify the judgment to reflect joint and several liability; and ordered a new trial on the issue of punitive damages, requiring the use of a “preponderance of the evidence” standard.

We granted certiorari to determine whether the court of appeals engaged in fact finding and found facts that were not supported in the record, whether the burden of proof for awarding punitive damages in a section 1983 action in Colorado is “beyond a reasonable doubt” or “by a preponderance of the evidence,” and whether the court of appeals erred in directing the trial court to amend the verdict to reflect that the defendants were jointly and severally liable. We affirm the court of appeals on the first issue, reverse on the second and third issues, and remand for a new trial.

II

The petitioners contend that the court of appeals based its decision to reverse the JNOV upon certain facts that were without support in the record. We find it unnecessary to review this issue because, based on our reading of the record, the trial court’s grant of JNOV was in error.

A JNOV may be entered only if a reasonable person could not reach the same conclusion as the jury, when viewing the evidence in the light most favorable to the party against whom the motion is directed. Alzado v. Blinder, Robinson & Co., 752 P.2d 544, 552 (Colo.1988). Every reasonable inference that may be drawn from the evidence must be drawn in favor of the non-moving party. Durango School Dist. No. 9-R v. Thorpe, 200 Colo. 268, 273, 614 P.2d 880, 884 (1980).

Price was required to show evidence of constructive discharge. Constructive discharge may occur without a formal firing, but the words or actions by the employer must “logically lead a prudent person to believe his tenure had been terminated.” Civil Rights Comm’n v. Colorado, 30 Colo.App. 10, 16, 488 P.2d 83, 86 (1971) (quoting National Labor Relations Bd. v. Trumbull Asphalt Co., 327 F.2d 841, 843 (8th Cir.1964) (quoting Putnam v. Lower, 236 F.2d 561, 566 (9th Cir.1956))). “The determination of whether the actions of an employer amount to a constructive discharge depends upon whether a reasonable person under the same or similar circumstances would view the new working conditions as intolerable, and not upon the subjective view of the individual employee.” Wilson v. Board of County Comm’n, 703 P.2d 1257, 1259, 1260 (Colo.1985); see also Irving v. Dubuque Packing Co., 689 F.2d 170, 172 (10th Cir.1982); Junior v. Texaco, Inc., 688 F.2d 377, 379 (5th Cir.1982); Johnson v. Bunny Bread Co., 646 F.2d 1250, 1256 (8th Cir.1981). “To prove a constructive discharge, a plaintiff must present sufficient evidence establishing deliberate action on the part of an employer which makes or allows an employee’s working conditions to become so difficult or intolerable that the employee has no other choice but to resign.” Wilson, 703 P.2d at 1259 (Colo.1985); see also Meyer v. Brown & Root Constr. Co., 661 F.2d 369, 372 (5th Cir.1981). In Civil Rights Commission v. Colorado, 30 Colo.App. 10, 488 P.2d. 83 (1971), the court found a constructive discharge, but no discriminatory purpose, where a teacher signed a letter of resignation based on her superior’s refusal to recommend her for rehiring. There was no duress or coercion to have the teacher sign the letter of resignation, but there was evidence that the teacher would not have resigned had she been able to receive a favorable recommendation.

The trial court’s basis for granting JNOV was that a reasonable jury could not have found that Zeckser took deliberate action to make the working conditions intolerable as required for a constructive discharge. The court of appeals reversed, stating that the jury could have reasonably concluded that Zeckser’s actions were deliberate and calculated to deprive Price of his employment without resort to the hearing to which he was entitled.

The evidence is in conflict as to whether Zeckser deliberately acted in such a way that Price would reasonably believe that his tenure had been terminated, and to what extent he knew about Price’s psychological difficulties. The evidence also conflicts on the issue of whether the discussions between Price and Zeckser created working conditions so difficult or intolerable that Price had no other choice but to resign. Price stated that he felt he had no choice but to resign. Viewing the evidence in the light most favorable to Price, a reasonable jury could find that Price had been constructively discharged. Therefore, the reversal of the JNOV is affirmed, but the verdict is not reinstated for the reasons set out in Part IV.

Ill

The trial court instructed the jurors that they could assess punitive damages against Zeckser² if they found “beyond a reasonable doubt” that his actions were in reckless disregard of, or callous indifference to Price’s constitutional rights. Based on this charge, the jury awarded no punitive damages.

The court of appeals ordered a new trial on punitive damages against Zeckser, citing Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983), for the proposition that claims for punitive damage based on section 1983 require that the jury find that the misconduct of the defendant be proven only “by a preponderance of the evidence.” We disagree.

In Smith, the United States Supreme Court did not address whether the plaintiff must show the occurrence of the misconduct beyond a reasonable doubt or by a preponderance of the evidence. Rather, Smith examined the type of misconduct that is sufficient for punitive damage awards. Smith held that reckless or callous, rather than intentional, disregard for the plaintiff’s rights is the proper standard in determining whether punitive damages are merited.³ “The focus is on the character of the tortfeasor’s conduct — whether it is of the sort that calls for deterrence and punishment over and above that provided by compensatory awards.” Id. at 54, 103 S.Ct. at 1639.

Thus, the Court in Smith looked at the character of the conduct — whether the conduct required to award punitive damages was reckless or intentional, not the probability of the act having taken place. Implicit in the Smith opinion is that the occurrence of reckless misconduct must always be adequately proven; whether the proof of the occurrence should be beyond a reasonable doubt or by a preponderance of the evidence can be resolved by looking at section 1988, title 42, United States Code.⁴

The language of § 1988 directs the courts to a three-step process in determining the rules of decision applicable to civil rights claims:

“First, courts are to look to the laws of the United States ‘so far as such laws are suitable to carry [the civil and criminal civil rights statutes] into effect.’ [42 U.S.C. § 1988] If no suitable federal rule exists, courts undertake the second step by considering application of state ‘common law, as modified and changed by the constitution and statutes’ of the forum state. Ibid. A third step asserts the predominance of the federal interest: courts are to apply state law only if it not ‘inconsistent with the Constitution and laws of the United States.’ Ibid.”

Wilson v. Garcia, 471 U.S. 261, 267, 105 S.Ct. 1938, 1942, 85 L.Ed.2d 254 (1985) (quoting Burnett v. Grattan, 468 U.S. 42, 47-48, 104 S.Ct. 2924, 2928, 82 L.Ed.2d 36 (1984)).

We have looked to the laws of the United States and found neither any federal statute nor any “federal common law” ⁵ governing the burden of proof for punitive damages in any civil rights action. In Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938), the United States Supreme Court declared that “[tjhere is no federal general common law.”⁶ At common law⁷ there were no punitive damages. Murphy v. Hobbs, 7 Colo. 541, 5 P. 119 (1884). The burden of proof at common law differed according to the action. The early common law required a higher standard than a “preponderance of the evidence” to prove compensatory damages in civil fraud actions. See Note, Appellate Review in the Federal Courts of Findings Requiring More than a Preponderance of the Evidence, 60 Harv.L.Rev. 111, 112 (1946). Finally, the common law burden of proof has been modified in other actions where important individual interests or rights are at stake.⁸ A standard of proof higher than a preponderance of the evidence is justified in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant. “The interests at stake in those cases are deemed to be more substantial than mere loss of money and some jurisdictions accordingly reduce the risk to the defendant of having his reputation tarnished erroneously by increasing the plaintiffs burden of proof.” Addington v. Texas, 441 U.S. 418, 424, 99 S.Ct. 1804, 1808, 60 L.Ed.2d 323 (1979).⁹

Because there are no specifically stated or otherwise relevant federal statutes governing the burden of proof standard for punitive damages, we proceed to the second step by considering application of state common law, as modified and changed by the constitution and statutes of the forum state.

The Colorado legislature has established the burden of proof for finding punitive damages in civil actions. The party asserting that claim must prove the wrong beyond a reasonable doubt. § 13-25-127(2), 6A C.R.S. (1987). In addition, although the issue was not raised, this court accepted without discussion the use of the “beyond a reasonable doubt” standard for punitive damages in section 1983 actions. Higgs v. District Court, 713 P.2d 840, 862 (1986); Espinoza v. O’Dell, 633 P.2d 455, 465 (Colo.1981), cert. dismissed, 456 U.S. 430, 102 S.Ct. 1865, 72 L.Ed.2d 237 (1982).

Finally, section 1988 expressly provides that state law governs the disposition of civil rights cases when federal law is not adapted for the purposes, so long as the state laws are not inconsistent with the Constitution and the laws of the United States.¹⁰ In Howlett v. Rose, — U.S. —, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990), a section 1983 action, the Court considered the question of whether a state law defense of sovereign immunity is available to a school board otherwise subject to suit in a Florida court even though such a defense would not be available had the action been brought in a federal forum. In answering the question in the negative, the Court noted that the following principles are fundamental to a system of federalism in which the state courts share responsibility for the application and enforcement of federal law:

The requirement that a state court of competent jurisdiction treat federal law as the law of the land does not necessarily include within it the requirement that the State create a court competent to hear the case in which the federal claim is presented. The general rule ‘bottomed deeply in belief in the importance of state control of state judicial procedure, is that federal law takes the state courts as it finds them.’_ The States thus have great latitude to establish the structure and jurisdiction of their own courts.... In addition, States may apply their own neutral procedural rules to federal claims, unless those rules are pre-empted by federal law....

Id. Howlett v. Rose, 110 S.Ct. at 2441 (quoting Hart, The Relations Between State and Federal Law, 54 Colum.L.Rev. 489, 508 (1954); (citations omitted)). In the absence of any persuasive argument that Colorado law is inconsistent with the purposes of section 1983, the state law will be applied. See Smith, 461 U.S. at 51, 103 S.Ct. at 1638.

The primary purpose of section 1983 and punitive damage awards is to deter future egregious conduct. Newport v. Fact Concerts, Inc., 453 U.S. 247, 268, 101 S.Ct. 2748, 2760, 69 L.Ed.2d 616 (1981). The Court in Smith questioned the premise that potential section 1983 defendants will be deterred from future egregious conduct based upon the standards of punitive damages. Smith, 461 U.S. at 50, 103 S.Ct. at 1637. Rather, the Court assumed that most potential section 1983 defendants “are guided primarily by the underlying standards of federal substantive law” and that one “who desires clear guidance on how to do his job and avoid lawsuits can and should look to the standard of actiona-bility in the first instance.” Id. The deterrent purposes of section 1983 are furthered neither by lowering the degree of misconduct sufficient to award punitive damages nor by lowering the burden of proving the commission of the conduct. Thus, the state law standard requiring that the plaintiff prove that the defendant committed the reckless conduct “beyond a reasonable doubt” is not inconsistent with the purposes of section 1983.

State laws applicable to section 1983 actions have been accepted despite the lack of uniformity that results.¹¹ While section 1983 does provide a ‘uniquely federal remedy,’ “[t]hat a federal remedy should be available, however, does not mean that a § 1983 plaintiff (or ,his representative) must be allowed to continue an action in disregard of the state law to which § 1988 refers us.” Robertson v. Wegmann, 436 U.S. 584, 584, 98 S.Ct. 1991, 1991, 56 L.Ed.2d 554 (1978). In Robertson, the Supreme Court adopted the forum state’s sur-vivorship law¹² although it caused plaintiff’s section 1983 action to abate because the Court found the federal law deficient and the state law not inconsistent with the policies of section 1983. The lower court based its decision to reject state law on the desirability for uniformity in the application of the civil rights laws. In reversing the lower courts’ decision, the Court stated that

whatever the value of nationwide uniformity in areas of civil rights enforcement where Congress has not spoken, in the areas to which § 1988 is applicable Congress has provided direction, indicating that state law will often provide the content of the federal remedial rule. This statutory reliance on state law obviously means that there will not be nationwide uniformity on these issues.

Id. at 593-94, n. 11, 98 S.Ct. at 1997 n. 11.

The trial court did not err in instructing the jury that it must find beyond a reasonable doubt that Zeckser’s conduct was in reckless disregard of, or callous indifference to Price’s rights before it could assess punitive damages.

IV

The jury found against both the District and Zeckser, but assessed damages only against the District. The court of appeals, citing Morgan v. Gore, 96 Colo. 508, 44 P.2d 918 (1935) and Weeks v. Churchill, 44 Colo.App. 520, 615 P.2d 74 (1980), stated that the jury committed prejudicial error in attempting to allocate or apportion liability for Price’s damages. It characterized the jury’s verdict as “technical error,” and directed the trial court to modify the verdict to make defendants jointly and severally liable. We reverse the court of appeals' ruling on this issue.

A jury verdict may be amended in matters of form, not substance. Dysart Assoc. Architecture & Constr. v. Hoeltgen, 728 P.2d 756, 758 (Colo.App.1986). A change in form corrects a technical error, while a change of substance is a change affecting the jury’s underlying decision. Id.

Both Morgan and Weeks were based upon the same relevant facts, and both only corrected technical errors. In each case, the jury was instructed that it could find against plaintiff, against only one defendant, or against both defendants jointly. The jury instructions specifically stated that if both defendants were found liable, each would be liable for the entire loss. Despite these instructions, the jury found against both defendants and fixed separate amounts for damages. In both cases the verdicts were amended to reflect joint and several liability without affecting the juries’ underlying decisions.

This case differs considerably from Morgan and Weeks. Here, the jury instructions neither specified that the jury could find against only one defendant nor specified that if both the defendants were found liable, the defendants would be jointly and severally liable. The jury was instructed that in order to find that plaintiff was constructively discharged, it had to find that “the defendants deliberately created or allowed working conditions to become so difficult or intolerable that the plaintiff had no reasonable choice but to quit;¹³ and a reasonable person under the same or similar circumstances would view the new working conditions as intolerable.” Instruction No. 14 stated, “To the extent you find the Board of Education based its decision to accept plaintiffs resignation on the recommendation of the administration, including the recommendation of defendant David Zeckser you may look to Mr. Zeck-ser’s intentions in determining the intentions of the district.” ¹⁴ The jury was also instructed that compensatory damages were to be awarded for “the total amount of monetary loss incurred by the plaintiff,” ¹⁵ but it did not specify against whom the total amount was to be assessed.

In addition, there were two verdict forms, providing two opportunities to assess damages. One specified that the jury could either find for the defendant Zeckser or for the plaintiff Price, and award compensatory and exemplary damages.¹⁶ The other specified that the jury could either find for the defendant school district, or for the plaintiff Price, and award compensatory damages.¹⁷ The jurors decided in Price’s favor. They found damages, and in accordance with the instructions awarded compensation to Price, assessing damages only against the District.

Where the inconsistency of a verdict demonstrates the fact that the jurors did not understand the instructions, or were misled, any change in the verdict made by the court is a change of substance and not of form. Harrison v. Nissen, 119 Colo. 42, 199 P.2d 886, 889 (1948); Wulff v. Christmas, 660 P.2d 18, 20 (Colo.App.1982). A court may not resolve an inconsistency by amending the verdict where it changes the underlying determination made by the jury. Wulff, 660 P.2d at 20.

The instructions were misleading. The inconsistent verdicts may have resulted because the jurors followed the instructions and the verdict forms too literally. When they found in Price’s favor, they were instructed on both verdict forms to specify this. They had no instruction stating that it was necessary to mark only one verdict form for plaintiff, or in the alternative, that only one defendant may have been liable. The confusing verdict forms and the conflicting answers do not sufficiently disclose the jury’s intent. Any change made by the court on this jury verdict would be a change of substance and not of form.

The issues of liability and damages in this case are so intertwined that the proper resolution is to have a new trial on all the issues. Wulff, 660 P.2d at 20; Kistler v. Halsey, 173 Colo. 540, 481 P.2d 722, 724 (1971).

V

For the foregoing reasons, we affirm the court of appeals reversal of the JNOV. We reverse the court of appeals modification of the jury verdict to reflect joint and several liability. Finally, we reverse the court of appeals ruling that the burden of proof for awarding punitive damages in section 1983 actions is by a “preponderance of the evidence.” Accordingly, the case is remanded to the court of appeals for remand to the district court for further proceedings consistent with this opinion.

LOHR, J., concurs in part and dissents in part. KIRSHBAUM and MULLARKEY, JJ., join in the concurrence and dissent. ERICKSON, J., concurs in part and dissents in part.

1 . Section 1983 provides in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

State courts have concurrent jurisdiction to entertain claims brought under 42 U.S.C. § 1983. Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980); Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980).

2 . A governmental entity, as opposed to an individual defendant, is immune from liability for punitive damages. Newport v. Fact Concerts, Inc., 453 U.S. 247, 269, 101 S.Ct. 2748, 2761, 69 L.Ed.2d 616 (1981).

3 . Accordingly, the jury instructions in this case provided in Instruction No. 17 that the jury must find that the conduct of the defendant was “in reckless disregard of, or in callous indifference to, plaintiff’s constitutional rights."

4 . 42 U.S.C. § 1988 provides in relevant part:

[I]n all cases where [the federal laws] are not adapted to the object [of the civil rights laws] ... the common law, as modified by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause....

5 .Federal common law is a body of decisional law developed by the federal courts untrammeled by the state court decisions. O'Brien v. Western Union Telegraph Co., 113 F.2d 539, 541 (1st Cir.1940). Accordingly, the authority of the single published federal case that requires that the burden of proof for § 1983 cases be by a “preponderance of the evidence” does not create a "federal common law.” Bird v. Figel, 725 F.Supp. 406 (N.D.Ind.1989). The issue of whether a "preponderance of the evidence” standard is required for punitive damages was not presented in Rowlett v. Anheuser-Busch, 832 F.2d 194 (1st Cir.1987); Wren v. Spurlock, 798 F.2d 1313 (10th Cir.1986); McKinley v. Trattles, 732 F.2d 1320 (7th Cir.1984); Abraham v. Pekarski, 728 F.2d 167 (3rd Cir.1984); Savarese v. Agriss, 883 F.2d 1194 (3rd Cir.1989); Taylor v. Canton, 544 F.Supp. 783 (N.D.Ohio 1982); Hopkins v. City of Wilmington, 615 F.Supp. 1455 (Del.1985). The seventh circuit "has not taken a position on the standard of proof required for punitive damages in a § 1983 case.” Coulter v. Vitale, 882 F.2d 1286 (7th Cir.1989); see also Fogarty v. Greenwood, 724 F.Supp. 545, 546 (N.D.Ill.1989) (the appropriate burden of proof to apply to punitive damage claims in § 1983 actions "is a still-open question — moreover, a question on which there is certainly room for differences of view”).

6 ."Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State.” Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1937). "Congress has no power to declare substantive rules of common law applicable in a State.... And no such clause in the Constitution purports to confer such power upon the federal courts.” Id. It is an unconstitutional assumption of power for the federal courts to use their judgment as to what the rules of common law are. Id., at 79, 58 S.Ct. at 823. "The common law so far as it is enforced in a State, whether called common law or not, is not the common law generally but the law of that State existing by the authority of that State without regard to what it may have been in England or anywhere else....” Erie R.R. Co. v. Tompkins, 304 U.S. 64, 79, 58 S.Ct. 817, 823, 82 L.Ed. 1188 (1937) (quoting Justice Holmes in Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U.S. 518, 533-34, 48 S.Ct. 404, 409, 72 L.Ed. 681 (1928).

7 . The "common law” is all the statutory and case law background of England and the American colonies before the American revolution. People v. Rehman, 61 Cal.Rptr. 65, 253 Cal.App.2d 119 (1967). Common law consists of those principles, usage and rules of action which do not rest for their authority upon any express or positive declaration of the legislature. Bishop v. United States, 334 F.Supp. 415, 418 (S.D.Tex.1971).

8 . See, e.g., Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (proceeding to terminate parental rights); Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) (involuntary commitment proceeding); Woodby v. INS, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966) (deportation); Chaunt v. United States, 364 U.S. 350, 81 S.Ct. 147, 5 L.Ed.2d 120 (1960) (denaturalization).

9 . In Addington, the United States Supreme Court rejected the appellant’s contention that the state should have a higher burden of proving of mental illness than that received by the jury. The Court recognized the legitimate interests of both the state and the patient in civil commitment and accordingly fixed an intermediate burden of proof.

10 . See Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981); Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973); see also Johnson v. Railway Express Agency, 421 U.S. 454, 464, 95 S.Ct. 1716, 1722, 44 L.Ed.2d 295 (1975) (there is nothing "peculiar to a federal civil rights action that would justify special reluctance in applying state law”).

11 . See Wilson v. Garcia, 471 U.S. 261, 269, 105 S.Ct. 1938, 1943, 85 L.Ed.2d 254 (1985) (state statutes of limitations applied to § 1983 actions).

12 . Louisiana’s survivorship statute required that a § 1983 action would survive only in favor of the injured’s spouse, parents, children, or sibling.

13 . This instruction (Instruction No. 13) was misleading. It is the deliberate conduct of Zeckser in making the working conditions intolerable that is relevant. Zeckser may have been qualifiedly immune unless he "knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of [Price].’’ Harlow v. Fitzgerald, 457 U.S. 800, 815, 102 S.Ct. 2727, 2736-37, 73 L.Ed.2d 396 (1982) (quoting Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 1001, 43 L.Ed.2d 214 (1975)); see also Owen v. City of Independence, 445 U.S. 622, 657, 100 S.Ct. 1398, 1419, 63 L.Ed.2d 673 (1980) ("The offending official, so long as he conducts himself in good faith, may go about his business secure in the knowledge that a qualified immunity will protect him from personal liability....”).

The District’s liability is based on whether its official adoption or promulgation of a policy statement, ordinance, regulation, or decision resulted in the unconstitutional action ["the official policy requirement’’]. Monell v. New York City Department of Social Serv., 436 U.S. 658, 690, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). Thus, the District’s liability is based upon its granting Zeckser the authority to establish policy concerning teachers’ employment, i.e. to accept letters of resignation and to require that Price perform his job or be subjected to a hearing on the matter. See Pembaur v. Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986); Monell, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611.

14 . This instruction is also misleading. It imposes vicariously upon the District any intent Zeck-ser had to make the working conditions intolerable. Yet, in Monell, the doctrine of respondeat superior, which makes the employer liable without fault on his part for the torts committed by his employees in the furtherance of their employment, was rejected for section 1983 actions. 436 U.S. at 691-94, 98 S.Ct. at 2036-37.

"The ‘official policy’ requirement [of Monell ] was intended to distinguish acts of the municipality from acts of the employees of the municipality, and thereby make clear that municipal liability is limited to action for which it is actually responsible.” Pembaur, 475 U.S. at 479-480, 106 S.Ct. at 1298.

15 . Instruction No. 15 states in relevant part:

To the extent that damages have been proven by a preponderance of the evidence you shall award as compensatory damages the total amount of monetary loss incurred by the plaintiff as a result of the deprivation of plaintiff’s constitutional rights including lost wages and benefits, and for any emotional harm caused by the deprivation of plaintiff’s constitutional rights.

(Emphasis added.)

16 . The first verdict form was divided into two parts. Part A stated: "We, the jury, find for the plaintiff, Gary D. Price and award damages of $_, and exemplary damages of $_against the defendant David Zeckser.” The jury filled in the blanks with "$0” and “$0.”

Part B stated: "We, the jury find for the Defendant, David Zeckser, and against the Plaintiff, Gary D. Price.”

17 . The second verdict form was also divided into two parts. Part A stated: “We, the jury, find for the plaintiff, Gary D. Price and award damages of $_against the Defendant Boulder Valley School District Re-2.”

The jury filled in the blank with “$60,000." Part B stated: “We, the jury find for the Defendant Boulder Valley School District Re-2 and against the Plaintiff, Gary D. Price."