Palmer v. Smith

• Court: District Court, D. New Hampshire
• Decided: December 15, 1997
• Docket: CV-95-598-SD
• Status: Published

Opinion

Palmer v. Smith CV-95-598-SD 12/15/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

B. Irene Palmer; Donald Palmer

v. Civil No. 95-598-SD

David Smith, et al

O R D E R

At this stage of the proceedings, the court considers the

complex issues arising from the inability of a trial jury to

resolve all issues presented to it at trial.

1. Procedural Background

Plaintiffs B. Irene Palmer and Donald Palmer are husband and

wife. The claims at issue stem from incidents which occurred

during the employment of Mrs. Palmer at a nursing home located in

Peterborough, New Hampshire. The defendants are David Smith, at

relevant times the administrator of said nursing home; Richard

Daigle, a former bailiff at the Peterborough District Court; and

Bruce McCall, a Peterborough police officer.

Plaintiffs launched a multitude of complaints against these

defendants, as well as the owners and operators of the nursing home.1 At the conclusion of trial, the issues were presented to

the jury by medium of special verdict questions.

As against defendant Smith, the claims included his

participation in an alleged false arrest of Mrs. Palmer which

occurred at the nursing home on March 31, 1995. Additionally, it

was claimed that over a longer period of time Smith had engaged

in conduct, intentional and negligent, which was defamatory of

and causative of emotional distress to Mrs. Palmer. This

included the display in his office of a xerox copy of a certain

photograph of Mrs. Palmer which had been taken at an earlier

office Christmas party. It was also charged that Smith's conduct

was such as to be sexually harassing in nature and to create a

hostile work environment.

The jury found for Mrs. Palmer against Smith on her claim of

false arrest at common law, and awarded her $2,000 for damages on

that claim. The jury found for Smith on the claims of

intentionally caused emotional distress, defamation arising from

the false arrest, and battery arising from such false arrest.

The jury failed to decide the issues as to whether Smith's

participation in the false arrest was violative of Mrs. Palmer's

civil rights; whether Smith's conduct was negligently causative

IPrior to trial, the owner/operators Sowerby Health Care, Inc., and Pheasant Wood Nursing Home, Inc., settled with the Palmers for the sum of $25,000.

2 of her emotional distress; whether his conduct was defamatory

concerning display of the copy of the Christmas party photograph;

whether Smith engaged in conduct against Mrs. Palmer which was

sexually harassing and creative of a hostile work environment;

and whether Mr. Palmer was entitled to recover for his loss of

consortium. The jury also failed to answer a series of guestions

the answers to which were designed to determine whether Smith was

entitled to the coverage of a certain insurance policy.2

Finally, the jury did not answer any guestions concerning the

plaintiffs' claims to recover punitive damages.

The claims against defendant Richard Daigle were concerned

only with the March 1995 false arrest incident. As to Daigle,

the jury found that Mrs. Palmer was entitled to recover for false

arrest at common law, and also found that Daigle committed

battery against her. The jury found for defendant Daigle on the

claim of defamation. The resulting damages awarded against

Daigle were the sum of $4,000 for the false arrest at common law

and $2,000 for the battery.

The jury failed to return verdicts on the issues of whether

The policy was issued by Allstate Insurance Company, which had brought a declaratory judgment action in advance of trial seeking to determine the scope of its coverage. Prior to trial, this declaratory judgment was consolidated with the action on the merits, and the court ruled that the jury would answer certain special interrogatories (numbered 10 through 14) designed to determine the issue of coverage.

3 Daigle's participation in the false arrest was violative of Mrs.

Palmer's civil rights; the right of Mr. Palmer to recover for

loss of consortium; and punitive damages.

As to defendant McCall, whose only connection was with the

false arrest incident, the jury found for Mrs. Palmer on her

claim of false arrest at common law and found for McCall on the

claims of defamation and battery. The resulting award was the

sum of $1,800 against McCall.

Again, the jury failed to answer the guestions as to whether

McCall's actions were violative of Mrs. Palmer's civil rights;

whether Mr. Palmer was entitled to recover for loss of

consortium; and punitive damages.

2. Discussion

If a jury fails to answer all the guestions submitted in a

special verdict, the verdict may be accepted for those issues

that are resolved. Simms v. Village of Albion, N Y , 115 F.3d

1098, 1105 (2d Cir. 1997); Quaker City Gear Works, Inc. v. Skil

Corp., 747 F.2d 1446, 1453 (Fed. Cir. 1984), cert,denied, 471

U.S. 1136 (1985). A partial retrial may thereafter be ordered

only as to those issues which were not unanimously agreed upon by

the jury. Baxter Healthcare Corp. v. Spectramed, Inc., 49 F.3d

1575, 1581 (Fed. Cir.), cert, denied, ___ U.S. ___, 116 S. C t .

4 272 (1995) .

Additionally, if a case is submitted to a jury and the jury

is unable to return a verdict, the district court may still enter

judgment as a matter of law. 9 M o o r e 's F e d e r a l Practice § 50.04 [2],

at 50-19 (3d ed., Matthew Bender 1997); Hedgepeth v. Fruehauf

Corp., 634 F. Supp. 93, 95 (S.D. Miss. 1986), aff'd without

opinion, 813 F.2d 405 (5th Cir. 1987). And finally, where, as

here, there has been a release given to one of two or more

persons liable in tort for the same injury, the claim of the

releasing person against other persons is to be reduced by the

amount of compensation paid for the release. New Hampshire

Revised Statutes Annotated (RSA) 507:7-h, 7-i;3 Waters v.

Hedberg, 126 N.H. 546, 549-50, 496 A.2d 333, 335-36 (1985).4

Careful consideration of these factors leads the court to

RSA 507:7-h provides that, while a release "does not discharge any other person liable upon the same claim unless its terms expressly so provide . . . [i]t reduces the claim of the releasing person against other persons by the amount of the consideration paid for the release." RSA 507:7-1 forbids the introduction at trial of any settlement had with a co-defendant, but provides that "upon return of a verdict for the plaintiff by the jury in any such trial, the court shall inguire of counsel the amount of consideration paid for any such settlement . . . and shall reduce the plaintiff's verdict by that amount."

Waters v. Hedberg, supra, considered the application of the now-repealed RSA 507:7-b, a predecessor statute which also provided for reduction of claims against co-defendants by the amount of consideration contained in a release.

5 conclude that, while there must be a partial retrial as to

defendant Smith, judgments may and should now be entered, as

hereinafter directed, in the cases against defendants Daigle and

McCall.

a. Judgment as a Matter of Law

Faced with a motion for judgment as a matter of law, a court

must scrutinize the proof and the inferences reasonably to be

drawn therefrom in the light most favorable to the non-movant.

Gibson v. City of Cranston, 37 F.3d 731, 735 (1st Cir. 1994).

The court may not consider the credibility of witnesses, resolve

conflicts in testimony, or evaluate the weight of the evidence,

and may grant the judgment only if the evidence, viewed from the

perspective most favorable to the non-movant, is so one-sided

that the movant is plainly entitled to judgment, for reasonable

minds could not differ as to the outcome. Id.

i. Plaintiffs' Civil Rights Claims

To establish her claims that the false arrest of March 1995

was violative of her civil rights, Mrs. Palmer was reguired to

demonstrate that the conduct of the defendants reflected a

reckless or callous indifference to her rights. Guttierrez-

Rodriauez v. Cartagena, 882 F.2d 553, 559 (1st Cir. 1989). The

6 evidence at trial, taken most favorably to plaintiff's cause,

failed to support any such finding.

Defendant Daigle knew Mrs. Palmer from visits to the nursing

home, where his mother and mother-in-law had at differing times

been patients. His daughter, a co-employee of Mrs. Palmer,

conceived the idea of an early "April fool" joke, whereby Daigle

would advise Mrs. Palmer that he had to bring her down to the

Peterborough district court to respond to an overdue traffic

violation.

Daigle, following further prodding from his daughter,

enlisted the aid of defendant Smith, who suggested that Daigle

tell Mrs. Palmer that the alleged offense concerned her financial

records. Daigle agreed to this, and also enlisted McCall, in the

interest of realism, to bring his police cruiser to the nursing

home and stand by the cruiser as if to transport an offender

therein.

Mrs. Palmer was duly summoned to Smith's office, told by

Daigle that she had to come downtown because of some financial

records problem, handcuffed to Smith, and led out to the parking

lot, where McCall and his cruiser awaited. Shortly after exiting

the nursing home, Daigle removed the handcuffs from Mrs. Palmer

and advised her of the joke, and he and McCall then went about

other business.

7 While these circumstances demonstrate that the practical

joke was ill conceived and that the participants therein perhaps

gave insufficient thought to the conseguences thereof, the record

in this case does not demonstrate by a preponderance of the

evidence that the conduct of any of the parties involved therein

reflected a reckless or callous indifference to the rights of

Mrs. Palmer. Accordingly, the court finds that all defendants

are entitled to and herewith enters judgment as a matter of law

on the issue of causal violation of Mrs. Palmer's civil rights.

11. Punitive Damages

Punitive damages may be assessed "when the defendant's

conduct is shown to be motivated by evil motive or intent, or

when it involves reckless or callous indifference to the

federally protected rights of others." Smith v. Wade,461 U.S.

30, 56 (1983). The purposes ofpunitive damage awards are to

punish defendants for willful or malicious conduct and to deter

others from similar behavior. Memphis Community School Dist. v.

Stachura, 477 U.S. 299, 306 n.9 (1986). Otherwise put, punitive

damages are to be reserved for cases where the defendant's

conduct is of the sort that calls for deterrence and punishment

over and above that provided by compensatory damages. Davettv.

Maccarone, 973 F.2d 22, 27 (1st Cir. 1992) (citations and internal quotations omitted).

From what has previously been detailed concerning

plaintiff's claims for violation of her civil rights, it follows

that the preponderance of the evidence presented at trial fails

to support a finding of entitlement by these plaintiffs to awards

of punitive damages. Accordingly, judgment as a matter of law

must be entered on the claims for punitive damages as to all

defendants.

b. Claims for Loss of Consortium

As hereinabove indicated, the jury failed to respond to the

special verdict questions concerning the right of Donald Palmer

to recover for loss of consortium. It may be that they were

given pause by certain evidence concerning his failure to fulfill

his marital vows, as well as evidence concerning his

participation in a "practical joke" concerning his wife which

bore some similarity to the false arrest incident here at issue.5

Whatever the reason, even had the jury awarded Mr. Palmer

damages for loss of consortium in the same amounts as the awards

it made his wife, the total of any such damages, when added to

Employed as a security chief at a state hospital, Mr. Palmer made use of his patrol vehicle and its flashing blue lights to pull his wife over when he desired to convey certain information to her. those of his wife, would still result in his receiving no award

because of the application of RSA 507:7-h, 7-i. As the case is

not one of those rare occasions where an award for loss of

consortium would possibly exceed that made to the injured party,

it is clear that the defendants are entitled to judgment as a

matter of law also on these claims.

c. Claims Against David Smith

There remain viable with respect to defendant David Smith

the issues of negligently caused emotional distress; defamation

concerning his display of the xerox copy of the Christmas

photograph; and whether his conduct directed toward Mrs. Palmer

comprised sexual harassment and created a hostile work

environment. Also to be considered are the issues as to whether

he is entitled to coverage under the policy issued him by

Allstate Insurance Company.6 For these reasons, the court may

not enter judgment on the claims against Smith at this time, as

there must be a partial retrial of these remaining issues.

The court believes at this stage of the proceedings that it would be futile to attempt to resolve the insurance policy coverage by again presenting the guestions to a jury. Allstate Insurance Company has filed a motion with supporting memorandum, and it may supplement same, if desired, by December 30, 1997. Responses by the interested parties, including the plaintiffs and defendant Smith, may be filed with the court by January 15, 1998. Thereafter the court will attempt to resolve the issue as expeditiously as possible.

10 d. The Judgments to be Entered

As to defendants Richard Daigle and Bruce McCall, pursuant

to Rule 54(b), Fed. R. Civ. P.,7 the court, finding that there is

no just reason for delay,8 directs that judgment be entered in

their cases as follows:

(a) Judgment for plaintiff B. Irene Palmer for costs only on

the verdicts received as against defendant Richard Daigle on the

claims of false arrest and battery;9

Rule 54(b), Fed. R. Civ. P., provides in relevant part:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties . . . .

The trial results and the rulings made in this order clearly satisfy the finality rule as to defendants Daigle and McCall, as their remains nothing further in their cases to be adjudicated at the district court level. See Spiegel v. Trustees of Tufts College, 843 F.2d 38, 42-44 (1st Cir. 1988).

Plaintiff is entitled to costs only for the total of all verdicts ($9,800), offset by the $25,000 received in the settlement from Sowerby Health Care, Inc., and Pheasant Wood Nursing Home. RSA 507:7-h, 7-i, supra. And as against Daigle, even were these reguirements not in effect, she would be entitled

11 (b) Judgment for plaintiff B. Irene Palmer for costs only on

her jury verdict as against defendant Bruce McCall on the claim

of false arrest at common law;

(c) Judgment for defendant Richard Daigle on the jury

verdict on the claim of defamation;

(d) Judgment for defendant Bruce McCall on the jury verdicts

on the claims of defamation and battery;

(e) Judgment as a matter of law for defendant Richard Daigle

on the claims of violation of civil rights, punitive damages, and

loss of consortium;

(f) Judgment as a matter of law for defendant Bruce McCall

on the claims of violation of civil rights, punitive damages, and

loss of consortium.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

December 15, 1997

cc: All Counsel

to claim only the larger award of $4,000 under the rule that multiple recoveries may not be had for the same loss even though different theories of liability are alleged in the complaint. Phillips v. Verax Corp., 138 N.H. 240, 248, 637 A.2d 906, 912 (1994); LaBarre v. Sheppard, 84 F.3d 496, 501-02 (1st Cir. 1996).