Paul Bell, Plaintiff-appellee/cross-appellant, v. Einer Mickelsen, Defendant-appellant/cross-appellee,wes Harper, Defendant, 710 F.2d 611 (10th Cir. 1983)

5000.00 MICKELSEN

Punitive Damages: $ 5000.00 HARPER "

Rec., vol. I, at 214-15 (emphasis in original).2

Notwithstanding the jury's finding of civil rights violations and its award of damages against both Mickelsen and Harper, the trial court concluded that the jury's finding of waiver covered all of the rights claimed by Bell under section 1983. Consequently, the court did not award Bell damages for these claims.

Bell argues on appeal that the district court erred in failing to award damages for the section 1983 claims. Specifically, he argues that the jury's answer on waiver, when combined with its award of damages, indicates the jury found that Bell had not waived all three of the claims pressed under section 1983, but only one or at most two of them. Mickelsen argues both that Bell had only one section 1983 claim, a contention that we reject summarily,3 and that the trial court correctly interpreted the special verdict as a jury finding that Bell had waived all of his rights asserted under section 1983.

The jury clearly found that Bell's civil rights were violated and also that a waiver had occurred. It is impossible to determine whether the jury believed that the waiver was effective as to all or only some of Bell's section 1983 claims. However, that determination is unnecessary. Because of ambiguities in the jury instructions and the special verdict questions, to which no objections were raised below, we hold that the issue was not preserved for appeal.

The trial court gave the jury two instructions on waiver. After defining the constitutional right of privacy, the court instructed the jury:

" [T]he right of privacy guaranteed under the Fourteenth Amendment is not absolute. The rights of every person to be left alone must be placed in the scales with the right of others under the First Amendment to communication. When a party voluntarily enters public life, he surrenders some of the privacy secured by law for those who elect not to place themselves in the public spotlight.

"It is for you to determine whether the plaintiff in this instance, by electing to run for Sheriff of Platte County, Wyoming, voluntarily waived any right that he might have had to the privacy of his prior identity."

Rec., vol. VI, at 1118-19. The court then instructed the jury on Bell's Witness Security Program claim, and told the jury that it had to determine whether Bell was within the program at the time the action arose, and, if so, whether the defendants had violated any of Bell's rights under the program. The court went on to say:

"It is the contention of the defendants that the plaintiff waived any rights he might have had to confidentiality under the Marshal Security Program by electing to run for public office or by waiver of his rights under the program. A party may waive rights guaranteed to him under the United States Constitution.

"A waiver is defined as an intentional relinquishment of a known right or privilege. The determination of whether or not there has been an intelligent waiver of a constitutionally protected right depends in each case upon facts and circumstances surrounding the case."

Id. at 1120.

These jury instructions are ambiguous because the jury could have understood them to mean either that a waiver of one of Bell's claimed rights necessarily was effective as a waiver of the other rights asserted, or that Bell could waive one of his claimed rights without thereby waiving the others.

The waiver issue was further confused by the trial court's subsequent admonition that " [i]f you find that plaintiff was deprived of any of his civil rights by the defendants acting under color of state law, you must return an award for that element, regardless of your other findings on damages." Id. at 1127 (emphasis added). The jury was never instructed that if it found Bell had waived all of his asserted rights, it should not award damages; rather, from the last passage we have quoted, the jury could easily have believed that it should award damages whether or not it found waiver. These ambiguities should have been rectified at trial.

The Federal Rules of Civil Procedure require a party to bring such ambiguities to the trial court's attention. "No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection." Fed. R. Civ. P. 51. Bell's counsel did not bring these ambiguities to the attention of the district court. When the court reviewed the prospective instructions and the special verdict with counsel, Bell's attorney discussed one of the waiver instructions, but neither raised any concerns about vagueness nor objected to the court's choice of words. See Rec., vol. VI, at 1070. No objection was made in open court. Bell failed to raise this issue before the trial court, and is thereby responsible in part for the issue on appeal. "The purpose of Rule 51 is to prevent a litigant from taking advantage of an error which could be rectified by the court if called to its attention by timely and specific objection." Corriz v. Naranjo, 667 F.2d 892, 896 (10th Cir. 1981) (citing Taylor v. Denver & Rio Grande Western Railroad, 438 F.2d 351, 353 (10th Cir. 1971)), cert. dismissed, --- U.S. ----, 103 S. Ct. 5, 73 L. Ed. 2d 1394 (1982).

It is equally clear that the patent ambiguity in the special verdict question was not addressed. During a conference, Bell's attorney suggested that Special Verdict Question 3 "should inquire whether the plaintiff waived the Constitutional rights, if any, which the jury found to have been violated." Rec., vol. VI, at 1066. The court proposed that the question be changed to read "rights protected by the Constitution or civil rights statute and which you have found were violated by the defendants or either of them." Id. Bell's counsel agreed. Thus, counsel was at least partially responsible for the form of the question actually submitted to the jury. When the jury's verdict was returned, Bell's counsel raised no question concerning the meaning of the jury's finding of waiver and its concomitant award of damages.

The requirement that the trial court be given an opportunity to analyze and correct an alleged error is equally applicable to special verdicts submitted under Rule 49(a). A party's failure to object to a special verdict question at trial is a waiver of the right to protest on appeal. Fredonia Broadcasting Corp. v. RCA Corp., 481 F.2d 781, 796 (5th Cir. 1973); see Charles Stores, Inc. v. Aetna Insurance Co., 490 F.2d 64, 67-68 (5th Cir. 1974); Bayamon Thom McAn, Inc. v. Miranda, 409 F.2d 968, 973 (1st Cir. 1969); Frankel v. Burke's Excavating, Inc., 397 F.2d 167, 170 (3d Cir. 1968); see also Skillin v. Kimball, 643 F.2d 19 (1st Cir. 1981) (failure to raise alleged inconsistencies in jury's responses to special jury questions before the jury is dismissed precludes their consideration on appeal). Accordingly, we hold that the issue was not preserved for review.

III.

THE TORT CLAIMS

The jury was instructed on the tort of outrageous conduct, and the tort of negligence. In response to separate questions on the special verdict form, the jury found that both Mickelsen and Harper had engaged in outrageous conduct causing damage to Bell, and that the defendants had acted negligently, also to Bell's detriment. The jury then was asked:"Q11. What sum of money do you deem fair and just to compensate the Plaintiff for the losses he actually sustained as a result of the Defendants' negligence or outrageous conduct?"

Rec., vol. I, at 217 (emphasis added). It responded:

"A11. 5000.00 MICKELSEN

Actual Damages- - - $ 5000.00 HARPER

Id.4

The jury was also instructed on the theory of comparative negligence, and returned a verdict apportioning negligence between the parties as follows: Bell, thirty percent; Mickelsen and Harper, each thirty-five percent. The trial court applied the comparative negligence percentages to the actual damages found by the jury and entered judgment against Mickelsen and Harper each for $3,500 actual damages plus $25,000 punitive damages.

Bell and Mickelsen each contested the court's judgment in motions to amend, and both renew their contentions on appeal. Bell argues that the court erred by reducing the amount of the verdict on the intentional tort of outrageous conduct by the percentage of comparative negligence allocated to him under the negligence cause of action, and also by apportioning the actual damages awarded by the jury. Mickelsen argues that the trial court erred by submitting and awarding punitive damages.

A. Actual Damages

Comparative Negligence and Intentional Tort

The trial court made clear its belief that separate damages and hence a double recovery could not be awarded for both a finding of negligence and of an intentional tort. We agree that the damages caused by the defendants' negligence and their intentional wrongful conduct were unitary. The jury's award of actual damages thus represents an award for harm caused by the intentional tort. Nevertheless, the trial court reduced the actual damages award by the percentage of comparative negligence assigned by the jury to Bell. The court had stated in conference that "it's my theory that the tort of outrage is a tort and so is ordinary negligence, so therefore, the comparative negligence law, I believe, applies to both." Rec., vol. VI, at 1065. Bell argues that the court incorrectly reduced the intentional tort damages by the percentage of comparative negligence. We agree.

Wyoming has adopted the comparative negligence doctrine by statute. The statute provides that " [a]ny damages allowed [in an action to recover damages for negligence] shall be diminished in proportion to the amount of negligence attributed to the person recovering." Wyo.Stat. Sec. 1-1-109(a) (1977). The Wyoming Supreme Court has construed this statute as applicable only to awards for negligence: "Sec. 1-1-109 does not mandate reduction of damages on the basis of comparative negligence of the plaintiff if defendant's misconduct is willful and wanton.... Damages resulting from willful and wanton misconduct are not 'damages for negligence' as that term is used in Sec. 1-1-109." Danculovich v. Brown, 593 P.2d 187, 194 (Wyo.1979). In that case, involving an award for "willful and wanton misconduct," the court noted that a comparative negligence apportionment "does not concern the difference in the kind of conduct which distinguishes negligence from willful and wanton misconduct. Willful and wanton misconduct, in the strict sense, is not negligence, since it involves intent rather than inadvertence, and is positive rather than negative." Id. at 193. We believe that the court's analysis and distinction is equally applicable in a case involving damages for the intentional tort of outrageous conduct. Accordingly, we hold that the trial court erred in reducing damages on the basis of Bell's comparative negligence.

The Amount of Actual Damages

The jury entered actual damages on the special verdict form against each defendant in equal amounts. Thus, it must be determined whether the jury intended to award Bell the sum of amounts entered and was indicating its belief that the defendants were each responsible for one-half of the harm suffered, or whether the jury intended that Bell be awarded only the amount entered against both defendants and was indicating its belief that Bell and Harper were jointly and severally liable for that amount. In the first instance, given our conclusion on the issue of comparative negligence, Bell would be entitled to $10,000 actual damages; in the second, $5,000.

The trial court concluded that the jury intended both to award Bell the sum of the amounts entered, $10,000, and to apportion that amount equally between Mickelsen and Harper. Judgment was entered accordingly. The court did not indicate that it was holding the defendants jointly and severally liable for the sum of $5,000 damages, as defendant Mickelsen apparently believes, see Mickelsen Reply Brief at 2. Rather, the court specifically entered separate damage awards against each defendant. Rec., vol. I, at 234.

It is difficult to determine the jury's actual intentions in responding to Special Verdict Question 11 as it did. In the negligence instructions, the jury was charged:

" [I]t is your duty to determine only two things: the amount of damages ... and the percentage of negligence, if any, attributable to [Bell]. It is the function of the Court to apply the percentages of negligence, ... if any, to the damages, if any.... [Y]ou are not to take into account the effect of any percentages of negligence of any party in determining their damages...."

Rec., vol. VI, at 1124-25. In the intentional tort instructions, the jury was directed to "determine what amount of money damages would be returned." Id. at 1127. In a punitive damages instruction, the court indicated that punitive damages could be awarded separately against either defendant. Quoting the special verdict form, the court instructed the jury that " ' [t]he damages awarded in Q 11 should be determined regardless of any percentages you find in your answer to Q 12 [the comparative negligence question].' " Id. at 1139.

At this point in the trial, the jury was sequestered and Mickelsen's attorney suggested punitive damages should be separately designated between the defendants. The court agreed, and proposed additional instructions to which counsel agreed. When the jury returned, the court instructed them as follows:

"As to Question 4 and 11 which relate to damage issues, if the jury should find that the plaintiff is entitled in those two questions to punitive damages, I would like you to add, your foreman should add below as for which defendants. In other words, there is a possibility that you might find the actions of one defendant were such as to entitle the plaintiff to punitive damages, but the actions of the other defendant didn't, so as to those beneath the words 'Punitive Damages,' dollar sign, blank line, your foreman can add against both defendants or against whichever one you feel that it might be if you selected only one."

Id. at 1144.

Although the jury was directed to segregate by defendant only punitive damages, it nevertheless subsequently entered both actual and punitive damages against each defendant in the manner suggested by the court. The trial judge evidently inferred that the jury confused the procedures they were instructed to follow in designating punitive and actual damages and, as a result, entered the amount of damages they felt the two defendants were personally responsible for in both categories. This conclusion is reinforced by the jury's identical alteration of the special verdict form when entering actual and punitive damages. We cannot say that the court's understanding of the jury's intent is wrong as a matter of law.

Apportionment

Having decided that the jury intended to award a total of $10,000 in actual damages to Bell, however, the trial court then held that the amount should be apportioned between the two defendants, with each liable for only $5000. We disagree with this result. The Wyoming Supreme Court has declared that "in a case which involves an injury that is not divisible, apportionment ... cannot rationally be applied." Chrysler Corp. v. Todorovich, 580 P.2d 1123, 1130 (Wyo.1978). In the case before us, the harm done Bell was the result of the joint efforts of Mickelsen and Harper. Their concerted efforts drove him and his family from their Wheatland home, and possibly endangered their lives. The defendants' conduct unconscionably invaded Bell's life under the guise of political inquiry. The injuries done Bell "are incapable of any logical, reasonable, or practical division." Id. at 1131. In these circumstances, the trial court erred in apportioning damages rather than holding the defendants jointly and severally liable.

Our conclusion is bolstered by a Wyoming statute which provides that " [t]here is no right of contribution in favor of any tortfeasor who has intentionally, willfully or wantonly caused or contributed to the injury" of another person. Wyo.Stat. Sec. 1-1-110(c) (1977); see Danculovich v. Brown, 593 P.2d 187, 193 n. 9 (Wyo.1979). Because the actual damages award represents damages for the intentional tort of outrageous conduct, an issue that we have already addressed, the trial court's apportionment is erroneous, working as it does to effect a right of contribution between the defendants.

B. Punitive Damages

Mickelsen argues the trial court erred in submitting the issue of punitive damages to the jury. He asserts that he is entitled as a matter of law to "good faith immunity" under Procunier v. Navarette, 434 U.S. 555, 98 S. Ct. 855, 55 L. Ed. 2d 24 (1978), and thus is immune against any finding of willfulness or wantonness, a prerequisite to a punitive damages award under Wyoming law. We find Mickelsen's argument specious. Procunier held that prison officials, acting in good faith, were not liable in a section 1983 action for the violation of a constitutional right that had not at the time been "authoritatively declared." See Baker v. McCollan, 443 U.S. 137, 138-39, 99 S. Ct. 2689, 2691-92, 61 L. Ed. 2d 433 (1979). In our case, punitive damages were awarded under Wyoming tort law for Mickelsen's and Harper's willful and wanton actions. While the good faith immunity doctrine is applicable to section 1983 actions, Wyoming has not applied it in intentional tort actions brought under state law. The punitive damage issue was properly submitted to the jury.

Mickelsen also argues that the trial court erred in instructing the jury on punitive damages when there was no evidence of defendants' wealth offered at trial. We need not linger over this argument. The Wyoming Supreme Court has explicitly stated that "this court has never held that ... proof [of a defendant's wealth] is mandatory" when punitive damages are requested. Sears v. Summit, Inc., 616 P.2d 765, 772 (Wyo.1980). The court's further statement that "we believe that evidence of a defendant's wealth should be introduced," id., is admonitory only; such evidence "is important because it is one of three factors that should be considered by the jury," id. Where, as here, no jury instruction was given to consider defendants' wealth, the lack of evidence of wealth is not harmful.

We have considered the other arguments made by the parties and find them unpersuasive. The decision of the trial court is affirmed in part, reversed in part, and remanded for entry of judgment in the amount of $10,000 actual damages jointly and severally against Mickelsen and Harper plus $25,000 punitive damages against each defendant.

Bell had been warned previously that running for political office might jeopardize his security cover

The answers, amounts, and names were filled in by the jury in handwriting

The record is replete with references to Bell's three section 1983 claims, and the jury was instructed on all three. Because of our disposition of the waiver issue, we need not decide whether each of the alleged section 1983 claims was properly asserted as such

See supra note 1