Coll v. Johnson

COLL_V_JOHNSON.92-526; 161 Vt. 163; 636 A.2d 336

[Filed 19-Nov-1993]

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
 40 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 92-526


 Rene W. Coll, Jr.                            Supreme Court

                                              On Appeal from
      v.                                      Rutland Superior Court

 John E. Johnson                              September Term, 1993
 and City of Rutland



 Arthur J. O'Dea, J.

 Richard S. Bloomer of Bloomer & Bloomer, P.C., Rutland, for plaintiff-
    appellant

 Peter W. Hall of Abell, Kenlan, Schwiebert & Hall, P.C., Rutland, for
    defendants-appellees



 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.



      GIBSON, J.   Plaintiff Rene Coll was wounded when defendant Officer
 John Johnson shot him during the course of an arrest.  Coll sued Johnson and
 the City of Rutland for gross negligence.  After trial, the jury could not
 reach a verdict and the court declared a mistrial.  Defendants subsequently
 moved for a directed verdict, which the trial court granted.  We reverse.
      At approximately 2:30 a.m. on September 21, 1988, Rene Coll and a
 companion robbed a convenience store in Rutland.  Police responded to the
 call and spotted the fleeing suspects.  Coll halted at the corner of a
 garage, his escape blocked by police officers.  He refused to give up and

 

 told the police he had a gun, although he was armed only with a knife.
 Officer Johnson arrived with a police dog.  He released the dog and it went
 for Coll, who held it off with his knife.  Officer Johnson's testimony at
 trial was that he was approximately twenty feet from Coll when Coll moved
 aggressively toward him and reached toward his belt for what Officer
 Johnson believed was a gun.  Fearing for his life, Officer Johnson fired at
 Coll, wounding him in the abdomen.  Coll's testimony was that he went into a
 crouch, holding the dog at bay with his knife, and never moved for fear that
 the dog would attack.
      Subsequently, Coll sued Officer Johnson and the City of Rutland,
 alleging Johnson had used unreasonable and excessive force in making the
 arrest.  In their motion for directed verdict following the mistrial,
 defendants asserted that plaintiff had failed to provide expert testimony to
 establish the standard of care for discharge of a weapon by a police officer
 in making an arrest, and therefore, plaintiff's case lacked proof of an
 essential element.  The court agreed and granted the motion.  This appeal
 followed.
      A directed verdict should not be granted if there is any evidence that
 fairly and reasonably supports the nonmoving party's case.  Meller v.
 Bartlett, 154 Vt. 622, 623-24, 580 A.2d 484, 485 (1990).  A directed verdict
 will be upheld, however, if the nonmoving party fails to present evidence on
 an essential element of that party's case.  Id. at 624, 580 A.2d  at 485.
 On appeal, we will review the evidence in the light most favorable to the
 nonmoving party, excluding all modifying evidence. Id. at 623, 580 A.2d  at
 485.

 

        The issue before us is whether expert testimony is necessary to
 establish the standard of care a police officer must exercise when using
 force to make an arrest.  Plaintiff did not provide an expert witness on
 this subject.  The trial court held that such testimony was required,
 stating that "[b]y submitting the case to a jury without the benefit of
 expert testimony as to the standard of care, the court presented an
 opportunity to the jury to speculate as to what standard of care should be
 imposed upon a police officer acting in the course of duty."  We disagree.
      It is the court's duty to instruct the jury on all issues essential to
 the case.  Arnold v. Cantini, 154 Vt. 142, 145, 573 A.2d 1193, 1195 (1990).
 This includes the standard of care that applies in a negligence action.  W.
 Prosser & W. Keeton, Prosser and Keeton on the Law of Torts 236 (5th ed.
 1984) (standard of care is a legal rule to be applied by the court).   Where
 a plaintiff charges that the police have used excessive force in effecting
 an arrest, "the question is whether the officers' actions are 'objectively
 reasonable' in light of the facts and circumstances confronting them, with-
 out regard to their underlying intent or motivation."  Graham v. Connor, 490 U.S. 386, 397 (1989).  Although Graham addresses a claim brought under 42
 U.S.C. { 1983, alleging a violation of plaintiff's civil rights, the case
 sets forth a Fourth Amendment constitutional "floor" under which "all claims
 that law enforcement officers have used excessive force . . . in the course
 of an arrest . . . should be analyzed."  Id. at 395 (emphasis in original).
 The reasonableness of the use of force should be viewed from the
 perspective of a reasonable officer at the scene.  Id. at 396.
       Here, the trial court's instructions followed Graham and were taken
 from defendants' requests to charge.  They stated, in part:

 

         The question is whether the totality of the circum-
         stances justified the use of force.  You must determine
         whether the officer's actions are objectively reasonable
         in light of the facts and circumstances confronting him
         without regard to his underlying intent or motivation.
         If this use of force is objectively reasonable, the
         officer cannot be held liable.
 We agree with plaintiff that this charge contained adequate instruction as
 to the standard of care Officer Johnson was to exercise in making the
 arrest.  We also agree that no expert testimony was required for the jury to
 understand or apply this standard of care.
      Expert testimony is not generally required "where the alleged violation
 of the standard of care is so apparent that it may be understood by a lay
 trier of fact without the aid of an expert."  Larson v. Candlish, 144 Vt.
 499, 502, 480 A.2d 417, 418 (1984).  In cases of professional misconduct or
 malpractice, expert testimony may be necessary to establish the prevailing
 standard of care.  Meller, 154 Vt. at 624, 580 A.2d  at 485 (attorney
 malpractice); Deyo v. Kinley, 152 Vt. 196, 204, 565 A.2d 1286, 1291 (1989)
 (medical malpractice).  Even in medical malpractice cases, however, expert
 testimony is not required where the alleged violation is so apparent it may
 be understood by a lay person.  Larson, 144 Vt. at 502, 480 A.2d  at 418.
      Defendants contend that the conduct of officers in life-threatening
 situations involves special procedures and standards that are not within a
 lay person's common knowledge.  Juries, defendants assert, cannot determine
 the standard of care in these cases without expert guidance.  We cannot
 agree.  First, as we have already stated, it is for the court to instruct
 the jury on the standard of care to apply to the facts.  In cases where
 plaintiffs allege excessive force, that standard will be whether the force

 

 used was objectively reasonable under the circumstances.  Graham, 490 U.S.  at 399.
      Second, in excessive-force cases there is usually no causal obscurity
 requiring expert testimony for the jury to understand how an injury might
 have occurred.  See Houghton v. Leinwohl, 135 Vt. 380, 384, 376 A.2d 733, 737 (1977) (no obscure causation where person felt bad strain immediately
 upon lifting heavy object and disability closely followed injury); cf. Deyo,
 152 Vt. at 204, 565 A.2d  at 1291 (in medical malpractice cases, "normally a
 complicated medical procedure, not easily evaluated by a lay person, is at
 issue").  Simply put, an arrest is not heart surgery.  Once it is
 established that the force exerted by police caused the harm to a given
 plaintiff, the determination for the jury is whether that force was
 reasonable under the circumstances.  This determination does not involve the
 "scientific, technical, or other specialized knowledge" contemplated by Rule
 702.  V.R.E. 702; see State v. Carpenter, 155 Vt. 59, 63, 580 A.2d 497, 500
 (1990) (expert medical testimony not necessary for jury to determine
 substantial risk of death for aggravated assault "when a person is choked to
 the point of passing out").
      While Graham emphasized that the determination of excessive force
 should be judged from the point of view of a reasonable police officer on
 the scene, see Graham, 490 U.S.  at 396-97, no cases have held that this
 determination requires expert testimony.  Moreover, the cases cited by
 defendant where expert testimony was required to prove police negligence
 involve other and more specialized standards of care.  In District of
 Columbia v. White, 442 A.2d 159 (D.C. 1982), the court held that "expert
 testimony is required when the subject presented is 'so distinctly related

 

 to some science, profession, business or occupation as to be beyond the ken
 of the average layman.'"  Id. at 164 (quoting Hughes v. District of
 Columbia, 425 A.2d 1299, 1303 (D.C. 1981)).  The issue in White, however,
 was not whether the police officer had used excessive force, but whether the
 District of Columbia had been negligent in training the officer in the use
 of his weapon.  Id.  That is an issue that could well require expert testi-
 mony inasmuch as the standard of care for the training of police officers is
 a technical subject not within the common knowledge of the average lay
 person.  See District of Columbia v. Peters, 527 A.2d 1269, 1273 (D.C.
 1987) (expert testimony necessary to establish standard of care necessary
 in training officers to deal with mentally disturbed persons or those under
 influence of drugs); see also Cunningham v. District of Columbia, No.
 CIV.A.87-0095, 1988 WL 68863, at *2 (D.D.C. 1988) (expert testimony required
 to support allegation of negligent supervision and assignment of police
 officer).  One other case cited by defendant, Selkowitz v. County of Nassau,
 408 N.Y.S.2d 10, 12, 379 N.E.2d 1140, 1143 (1978), is not pertinent, because
 it deals only with the admissibility, not the necessity, of a police
 officer's testimony as an expert on the safe handling of police cars in
 high-speed chases.
      Defendants raise an alternative argument that the directed verdict was
 proper because there was insufficient evidence to show that Officer
 Johnson's actions, "measured by any objective standard," constituted gross
 negligence.  Since this is not a case where both parties are appealing the
 judgment below, defendants need not have raised this issue by cross-appeal,
 as plaintiff contends.  See Staruski v. Continental Tel. Co., 154 Vt. 568,
 571 n.3, 581 A.2d 266, 267 n.3 (1990) (party content with final order need

 

 not file cross-appeal to preserve claims for review because it "had nothing
 in the first instance to appeal").  Nevertheless, viewing the evidence in
 the light most favorable to plaintiff, and excluding the effect of modifying
 evidence, Meller, 154 Vt. at 623, 580 A.2d  at 485, we reject defendants'
 contention that plaintiff's evidence was insufficient for the case to go to
 the jury.
      Defendants' argument that Officer Johnson had qualified immunity was
 not litigated below and will not be considered here.
      Reversed and remanded.


                                              FOR THE COURT:



                                              ______________________________
                                              Associate Justice