DePalma v. Metropolitan Government

40 F. App'x 187
CourtCourt of Appeals for the Sixth Circuit
DecidedJuly 9, 2002
DocketNo. 00-5566, 00-5587
StatusPublished
Cited by2 cases

This text of 40 F. App'x 187 (DePalma v. Metropolitan Government) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DePalma v. Metropolitan Government, 40 F. App'x 187 (6th Cir. 2002).

Opinion

CLAY, Circuit Judge.

Plaintiffs-Appellants William Richard Kyzer and Rebecca Carol Coleman Kyzer (“the Kyzers”), the adoptive parents and next friends of minors Devonte Neal and Deidre Neal, the surviving children of the deceased Connie Neal, appeal, and Defendant Metropolitan Government of Nashville and Davidson County, Tennessee (“Metro”) cross-appeals, from the district court’s judgment awarding $78,520 to Connie Neal and $25,740 to each of her surviving children, Devonte Neal and Deidre Neal, in this wrongful death action against Metro. For the reasons set forth below, we AFFIRM the district court’s judgment.

I. BACKGROUND

A. Substantive History

This case arises from Metro’s negligent response to the decedent Connie Neal’s call to 911 for emergency assistance on the morning of April 14, 1997 regarding her estranged husband, Antonio Neal, who shot her to death and then killed himself, after also murdering her mother, Sandra DePalma, brother, Kenneth DePalma, and sister, Tammy DePalma. On April 13, 1997, Antonio and Connie Neal were having marital problems, prompting Connie Neal to leave with her children, Devonte and Deidre, and stay at the home of a friend in Mt. Juliet, Tennessee that night. On the following morning, Neal went to the home of her parents, Don and Sandra [190]*190DePalma, at 409 Terry Place, in Hermitage, Tennessee. Connie Neal’s brother and sister, Kenneth and Tammy DePalma, also resided with their parents at 409 Terry Place.1 Neal left her oldest child, Deidre, in Mt. Juliet and took her younger child, Devonte, with her to her parents’ house, arriving at about 10:00 a.m.

At about 10:09 a.m. a 911 emergency call was made from the DePalma home to the Metropolitan Police Dispatch:

Operator: 911 Emergency
(Inaudible — male voice shouting — then a female voice — not able to understand what parties are saying.)
Male voice: (Antonio Neal — yelling— “alright, come on.”)
Female voice: (Connie Neal — “ok, ok, ok, with my heart”)
Antonio Neal: Ok
Connie Neal: Antonio, with my heart (inaudible), please, don’t (screams), please, please.
[2 shots fired] Oh God, Antonio, please, stop, stop, please,
Antonio Neal: (Inaudible)

After the screams and two gunshot sounds were transmitted over the open 911 line, the telephone line went dead.

The 911 operator, Shirl Davis, was able to discern the address and phone number of the residence originating the call from the computer-aided dispatch system (“CAD”), and initiated a 911 “incident” and a radio call that was sent out to patrol units. Although the screams and gunshots were audible at the time of the 911 transmission, Davis claimed that she did not hear them. Thus, Davis only entered into the CAD system that “Man and woman arguing. Male subject made female subject hang up the phone.” Davis also typed into the CAD system that the call was a “10-41P,” or a “domestic disturbance in progress.” The information was immediately sent through the CAD system to a police dispatcher. Davis also contacted the police dispatcher, Deborah Wheeler, who dispatched the call to Officers Mike Helton and John Murphy of the Metro Police Department. Both officers believed that they were responding to a routine domestic disturbance, and thus did not use speed or sirens in traveling to 409 Terry Place.

Shortly thereafter, 911 operator Davis called the DePalma residence back:

Connie Neal: Hello.
Operator: Hello, ma’am this is Miss Davis with the Metro Police.
Connie Neal: Uh, huh.
Operator: I’ve got the police on the way to 409 Terry Place.
Connie Neal: She’s kinda busy right now, can she call you right back?
Operator: No, I’m going to send the police, okay? You live in a house or an apartment? Apartment?
Connie Neal: Well, yeah, well, I’m working for her today so I’ll be up there.
Operator: Okay.
Connie Neal: —probably around (inaudible) — maybe 30 or 45 minutes.
Operator: Okay, I’ll send somebody out there.
Connie Neal: Okay.

Officer Helton arrived first at the De-Palma residence. After parking his car in the driveway, Officer Helton walked to the [191]*191front door and knocked. When he did not receive a response, Officer Helton knocked again. He then opened the door and stepped inside the foyer and saw “a half a flight of stairs going straight down and a half a flight going straight up.” At the top of the stairs, Officer Helton saw Antonio Neal and asked him if everything was okay. Officer Helton also asked Antonio Neal if he had called the police and what was going on. Antonio Neal replied that no one had called the police and that everything was fine. According to Officer Helton, Antonio Neal was standing with his hands behind his back. Given their respective positions and his “obvious tactical disadvantage,” Officer Helton asked Antonio Neal to show him his hands. Antonio Neal made no reply to the officer’s request. At that point, Connie Neal appeared from the living room holding a baby. When Officer Helton asked her if she was okay and if she had called the police, Connie Neal answered that she was okay and that she did not call the police. Glancing into the living room, Helton saw the torso of a body, with a “blood-like substance coming from the mouth,” but could not determine if the body was real. Officer Helton then looked back at Antonio Neal and again asked him to show his hands. Realizing that he was in “an extremely dangerous position” if the body in the living room was real, Officer Helton, backing out the door, asked Antonio Neal to step outside onto the porch so that they could talk. Antonio Neal, using a profanity, refused. Officer Helton then left house and walked back to his patrol car to radio Officer Murphy to hurry up.

Immediately thereafter, Officer Murphy arrived. As Officer Helton was explaining the situation to Officer Murphy, Officer Phillip Sage, who also responded to the call given his proximity to 409 Terry Place, arrived at the residence. After informing Officer Sage about the situation as well, Officer Helton radioed police dispatcher Wheeler to request that she call the residence back to get more specific information about the problem inside the house.

At 10:38 a.m. Wheeler called the DePal-ma residence and, after identifying herself as being with the police department, spoke with Connie Neal. According to Wheeler, she established that “everything [was] not all right” inside the house. Wheeler also informed Connie Neal that the police were outside. Wheeler then radioed Officers Helton and Murphy to tell them about her conversation with Connie Neal and to inform them about a problem inside the house. The officers also were told that Connie Neal could not talk freely on the phone and that she pretended that the dispatcher was her employer during their conversation.

The officers then decided to approach the residence, realizing that Connie Neal was in serious danger.

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Related

Johnson v. City of Memphis
617 F.3d 864 (Sixth Circuit, 2010)

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40 F. App'x 187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/depalma-v-metropolitan-government-ca6-2002.