Baker v. Stiverson

Full title: KELSI BAKER, Plaintiff-Appellant, v. STEWART STIVERSON, Defendant-Appellee…

Court: APPELLATE COURT OF ILLINOIS FIFTH DISTRICT

Date published: May 8, 2014

2014 Ill. App. 5th 120585 (Ill. App. Ct. 2014)

Opinion

NO. 5-12-0585

05-08-2014

KELSI BAKER, Plaintiff-Appellant, v. STEWART STIVERSON, Defendant-Appellee (Jeremy Stumpf, Defendant).

GOLDENHERSH

NOTICE

Decision filed 05/08/14. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

NOTICE

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the

Circuit Court of

Madison County.

No. 07-L-61

Honorable

David A. Hylla,

Judge, presiding.

JUSTICE GOLDENHERSH delivered the judgment of the court.

Presiding Justice Welch and Justice Cates concurred in the judgment.

ORDER

¶ 1 Held: The trial court did not err in finding that defendant Stiverson's trial testimony did not contain judicial admissions that he used excessive force against plaintiff. ¶ 2 Plaintiff, Kelsi Baker, filed a suit for damages under 42 U.S.C. § 1983 for deprivation of her fourth amendment rights (U.S. Const., amend. IV), claiming that defendants, Jeremy Stumpf and Stewart Stiverson, deputies with the Madison County sheriff's department, used excessive and unjustified force against her by repeatedly tasing her during the course of her arrest. After a jury trial in the circuit court of Madison County, the jury returned a verdict in favor of defendants and against plaintiff. The trial court entered judgment consistent with the verdict. Plaintiff filed a timely posttrial motion in which she sought entry of judgment notwithstanding the verdict (j.n.o.v.) with respect to the section 1983 claim against defendant Stiverson because of alleged judicial admissions he made during trial. The trial court denied the motion. Plaintiff now appeals. The single issue raised in this appeal is whether the trial court erred in finding that defendant Stiverson's trial testimony did not contain judicial admissions that he used excessive force against plaintiff. We affirm.

¶ 3 FACTS

¶ 4 On February 6, 2006, defendants, who were driving separate patrol cars, responded to a 1 a.m. telephone call from Maurice and Vicki File of Alton who reported that there was an unknown car in their driveway with its lights on and radio blaring. Stumpf arrived first at the File residence and found plaintiff passed out in her car. The door to the car was locked and the car was still running. Stumpf believed plaintiff needed help, so he retrieved his "lockout device" and gained entry to the car. When he opened plaintiff's car door, he noticed a strong smell of alcohol. ¶ 5 Stiverson arrived on the scene and noted that plaintiff appeared intoxicated. His police car was parked behind Stumpf's car. Officer Stumpf attempted to get plaintiff out of her car. Vicki File testified that plaintiff got out of the car, went to the ground, and started screaming at the top of her lungs like a horror movie. File testified that the next thing she knew, plaintiff was "off the ground and kicking and screaming, with her hands and her legs" as Stumpf was "proceeding to try to get her to his car, which is the first police car." Stumpf testified he used his taser twice on plaintiff's back in order to subdue her and get her into his police car. Stumpf handcuffed plaintiff behind her back, placed plaintiff in the back of his patrol car, and went inside the Files' house in order to get statements from Mr. and Mrs. File. ¶ 6 Stiverson remained outside in order to supervise plaintiff. Plaintiff was lying down in the backseat of the squad car. According to Stiverson, he became worried about the possibility of plaintiff aspirating if she vomited while lying down, so he opened the squad car door and told plaintiff to sit up. In response, plaintiff started kicking at him violently and screaming at him. Stiverson then tased plaintiff in her thigh area in order to access her peroneal nerve. Stiverson admitted he tased plaintiff twice. ¶ 7 In the police report introduced into evidence, Stiverson noted that he advised plaintiff if she continued kicking him, she was going to be tased, and he showed her a test arc from his taser "in an attempt to gain compliance from [plaintiff]. [Plaintiff] then kicked at me, this time striking me in the chest area." Due to plaintiff's "extreme aggression," Stiverson tased her for a five-second cycle. When this cycle stopped, plaintiff "became belligerent again and started to kick at me again." Stiverson then tased her for another five-second cycle, after which plaintiff complied with Stiverson's request to sit up. Stiverson then placed plaintiff in an upright position and put her in a seat belt to keep her from falling over. At trial, Stiverson testified he could not remember using a test arc on plaintiff. ¶ 8 A computer printout was introduced into evidence which showed Stiverson's taser registered four uses of his taser on the night in question. The printout shows that the taser was shot for five seconds beginning at 1:53:43. It was shot a second time at 1:54:01 for five seconds. It was shot a third time at 1:54:37 for three seconds. It was shot a fourth time at 1:55:08 for three seconds. Stiverson denied tasing plaintiff four times. ¶ 9 At the time of trial, Stiverson was no longer working as a police officer. He quit on July 9, 2008. During his testimony, Stiverson cited "backstabbing" within the police department as well as his family's fear for his safety as reasons he quit. ¶ 10 Plaintiff was 20 years old at the time of the incident. She admitted that she went to a bar and drank on the evening in question and when she was driving home she realized she was too drunk to drive. She was charged with driving under the influence and illegal consumption of alcohol by a minor by Officer Stumpf. In his report, Stumpf noted that once plaintiff was at the police station, she was initially uncooperative, but after she settled down she admitted to being very drunk, drinking somewhere between 12 to 14 beers. ¶ 11 At the time of trial, plaintiff was married and had two children. Plaintiff does not remember much from the incident in question due to her alcohol consumption that evening, but remembers pain and asking someone if that made him feel like a man. The day after her arrest, plaintiff was not sure how she acquired the marks on her body, but a family member suggested the marks might be from a taser. Plaintiff did not remember being tased. Ultimately, plaintiff received a medical examination following her arrest which showed eight marks on or near her thigh area which were caused by a taser and two on her back. ¶ 12 Stiverson was adamant that he tased plaintiff only twice. In his testimony, Stiverson explained the inconsistency between his testimony and the computer read-out from the taser. Stiverson stated: "[I]f you taser somebody, they can move and you can taser them again with the same five second cycle. And they can bounce around a little bit and cause more *** [m]ore contact, yes. Different contact points, yes." ¶ 13 A psychologist testified that plaintiff suffers from posttraumatic stress disorder (PTSD) as a result of her arrest; however, the psychologist admitted in his report: "[Plaintiff] appears to have had a preexisting vulnerability to depression. She sought treatment for symptoms of depression at age 18 and experienced relief of such symptoms with medication management prior to the February 2006 incident." ¶ 14 After hearing all the evidence, the jury returned a verdict in favor of defendants and against plaintiff on all counts, finding that the force used in the circumstances existing at the time of plaintiff's arrest was not excessive on the part of either defendant. The trial court entered judgment on the verdict. Plaintiff filed a posttrial motion for j.n.o.v. in which she asked the trial court to find that Stiverson made judicial admissions during trial that he used excessive force during plaintiff's arrest. The trial court denied the motion. Plaintiff does not appeal the judgment entered after the verdict with regard to Officer Stumpf, but appeals only that portion of the judgment pertaining to Officer Stiverson.

¶ 15 ANALYSIS

¶ 16 The issue on appeal is whether the trial court erred in finding that Stiverson's trial testimony did not contain judicial admissions that he used excessive force against plaintiff. Plaintiff contends that Stiverson admitted in his testimony at trial that he used excessive force against plaintiff, which amounts to a judicial admission and requires entry of judgment in her favor and a new trial to determine damages. Plaintiff asserts that the standard of review is de novo, citing Hansen v. Ruby Construction Co., 155 Ill. App. 3d 475, 480, 508 N.E.2d 301, 304 (1987). Hansen, however, is distinguishable from the case at bar. ¶ 17 In Hansen, the plaintiff, a postal worker, brought a personal injury action against the designer of a loading dock where plaintiff tripped and fell. In his deposition, the plaintiff unequivocally testified that he tripped and fell on a rubber bumper strip. Hansen, 155 Ill. App. 3d at 478, 508 N.E.2d at 302. Plaintiff later alleged he was confused and, after revisiting the area where he was injured, determined that he had actually caught his heel on a portion of the dock plate assembly. Hansen, 155 Ill. App. 3d at 478, 508 N.E.2d at 302-03. Nevertheless, the defendant moved for summary judgment on the basis that it had not designed or supervised the construction of the rubber bumper strips. The trial court granted summary judgment, and our colleagues in the First District affirmed on the basis that "assertions made in a deposition constitute binding judicial admissions only if they are unequivocal" and "the issue of equivocalness is a question of law," especially when considering motions for summary judgment. Hansen, 155 Ill. App. 3d at 480, 508 N.E.2d at 304. Because the instant case does not involve summary judgment, but instead involves an appeal from a judgment entered after the jury returned a verdict in favor of defendants, we find plaintiff's reliance on Hansen misplaced. ¶ 18 We agree with defendant that the standard of review is not de novo, but rather abuse of discretion, and that under the circumstances presented here, it cannot be said the trial court abused its discretion in finding that Stiverson's testimony did not contain judicial admissions that he used excessive force against plaintiff. The trial court's ruling on an issue of judicial admission is a matter for the trial court's sound discretion, and we are to affirm the trial court unless it abused that discretion. Smith v. Pavlovich, 394 Ill. App. 3d 458, 468, 914 N.E.2d 1258, 1268 (2009); Rath v. Carbondale Nursing & Rehabilitation Center, Inc., 374 Ill. App. 3d 536, 539, 871 N.E.2d 122, 126 (2007). An abuse of discretion is found only where no reasonable person would take the view adopted by the trial court. Smith, 394 Ill. App. 3d at 468, 914 N.E.2d at 1268. ¶ 19 A party may, by his own testimony, "conclusively bar his claim or his defense," but whether a party's testimony defeats his own claim depends upon an evaluation of all of his testimony, and not just a portion of it. McCormack v. Haan, 20 Ill. 2d 75, 78, 169 N.E.2d 239, 240-41 (1960). Before a statement can be deemed a judicial admission, it must be given a meaning consistent with the context in which it was found and must be decided under the circumstances on a case-by-case basis. Shelton v. OSF Saint Francis Medical Center, 2013 IL App (3d) 120628, ¶ 24, 991 N.E.2d 548. Our supreme court has held that judicial admissions must be " 'deliberate, clear, unequivocal statements by a party about a concrete fact within that party's knowledge.' " JPMorgan Chase Bank, N.A. v. Earth Foods, Inc., 238 Ill. 2d 455, 475, 939 N.E.2d 487, 499 (2010) (quoting In re Estate of Rennick, 181 Ill. 2d 395, 406, 692 N.E.2d 1150, 1156 (1998)). The JPMorgan court noted, "A party is not bound by admissions regarding conclusions of law because the courts determine the legal effect of the facts adduced." JPMorgan Chase Bank, N.A., 238 Ill. 2d at 475, 939 N.E.2d at 499. The doctrine of judicial admission requires thoughtful consideration to ensure that "justice not be done on the strength of a chance statement made by a nervous party." Thomas v. Northington, 134 Ill. App. 3d 141, 147, 479 N.E.2d 976, 981 (1985). Judicial admissions are not evidence at all, but instead withdraw a fact from contention. Rath, 374 Ill. App. 3d at 538, 871 N.E.2d at 126. ¶ 20 Here, plaintiff relies on Stiverson's testimony concerning the Madison County sheriff's policy regarding the use of force and Stiverson's concession that if he employed greater force than the policies allow, then it would be excessive. Madison County policy prohibits the use of tasers to wake a suspected intoxicated person or to "prod" or "motivate" a person. Plaintiff specifically relies on the following questions and answers to support her position that Stiverson made a binding judicial admission that he used excessive force during her arrest:

"Q. [Attorney for plaintiff:] Yea. And when you do that, you're using it to prod or motivate her to sit up, right?
A. I don't like the word 'prod'. I mean, that sounds like it's a cattle prod and I'm trying to move her down the road. But to motivate her.
Q. Okay, what about to motivate her?
A. Motivate, yes.
Q. Okay, so you used the taser to motivate her to sit up, correct?
A. Correct."

While Stiverson admitted that he used the taser to motivate plaintiff, and such use is prohibited by the Madison County sheriff's office policy, his testimony must be taken in context. ¶ 21 Plaintiff's argument relies on only a small portion of Stiverson's testimony, and most of the testimony excerpts relied upon by plaintiff were hypothetical questions posed by plaintiff's counsel. For example, plaintiff's counsel asked Stiverson if he did not follow the policy concerning use of force, then "you would agree that you would have been using excessive force, correct?" Stiverson responded, "Correct." Plaintiff's counsel also asked Stiverson if he could not justify all the use of the taser he used on plaintiff, then "you would agree that you used excessive force on [plaintiff], Correct?" Again, Stiverson replied, "Correct." Plaintiff's counsel also asked Stiverson, "So if you used your taser, and it was unaccounted for, you would agree that was excessive force?" Stiverson answered, "If you use the taser on a person unaccounted for, yes." However, our review of the record shows that none of Stiverson's answers to plaintiff's counsel's hypothetical questions amounts to a judicial admission that Stiverson used excessive force. ¶ 22 A thorough review of all of Stiverson's testimony shows that Stiverson was unequivocal that he did not use excessive force on plaintiff. Stiverson admitted that he tased plaintiff twice, but did so in order to motivate her to sit up so he could protect her from herself. Stiverson was concerned that given plaintiff's intoxicated condition, she would vomit and asphyxiate. The following colloquy between plaintiff's attorney and Stiverson concerning the discrepancy between Stiverson's testimony and the computer printout is enlightening:

"Q. [Attorney for plaintiff:] If you believe that the computer printout that comes from the gun, then you shot this gun four times, correct?
A. That's what the computer printout says, yes.
Q. Right. And if you believe the report on Exhibit 4 and Exhibit 3, then you would agree that your police report, Exhibit 2, is unreliable?
A. No.
Q. If you believe the computer that you don't have any explanation for the third or the fourth shot, correct?
A. That's not true. There's a lot of factors that could have happened with the taser download process.
Q. Okay. Did you do the taser download process in this case?
A. No.
Q. And are you a-computer literate with this?
A. With the taser?
Q. Yea, right?
A. No.
Q. So if the jury believes this computer printout-
A. Yes.
Q. -from the taser, then you have at least one unjustified use of the taser, correct?
A. I have-
Q. And possibly two?
A. There are four instances, according to the download. And I say I used two.
Q. Okay. So there are two unjustified uses of the taser if the jury believes the computer report, correct?
A. Unjustified is not a word I would use.
Q. Okay. And if the jury believes the computer printout that shows that this taser was used four times, then there were at least two unjustified uses of this taser, correct?
A. I'm going to go back to the word unjustified, I would say unaccounted for.
Q. Okay. I will use your word. Unaccounted for uses of this taser. And if they're unaccounted for uses of your taser on [plaintiff], then that is excessive force, correct?
A. Not necessarily.
* * *
"Q. Okay. So if the jury believes the computer and the printout, the objective printout from the taser, then you used excessive force, correct?
A. That would be their decision. I'm not going to say I used excessive
force."

Stiverson was correct. It was for the jury to decide whether he used excessive force because nothing in his testimony amounts to a judicial admission of excessive force. ¶ 23 While we admit that we are concerned about the discrepancy between the computer printout, which shows that the taser was used four times, and Stiverson's testimony that he only used the taser twice, we cannot say that this is enough to overturn the jury's verdict. First, we point out that Stiverson sufficiently explained the inconsistency between the amount of marks on plaintiff's body and the number of times he tased her. Stiverson testified that if the person being tased moves during the tasing process, there can be more than one contact between the taser and that person's skin during the five-second cycle. Second, while Stiverson testified at trial he did not remember using a test arc on plaintiff, his police report specifically states he showed plaintiff a test arc prior to tasing her. Assuming his report is correct, that would mean there was only one unaccounted-for use of the taser. Finally, we note that there is nothing in the record which even suggests that a person can only be tased twice by a police officer and that any amount of tasing over that amount constitutes excessive force. The jury may have believed that even if Officer Stiverson tased plaintiff three or four times during the incident in question, the circumstances warranted the additional use(s) of the taser. ¶ 24 It is clear from the record before us that plaintiff was too intoxicated on the night in question to know exactly what occurred. However, after hearing all the evidence, the jury determined that neither defendant used excessive force under the circumstances with which they were presented. The trial court agreed and denied plaintiff's motion for j.n.o.v. After careful consideration and a review of the record before us, we cannot say the trial court abused its discretion in finding that Stiverson's trial testimony did not contain judicial admissions that he used excessive force against plaintiff. ¶ 25 Accordingly, we hereby affirm the judgment of the circuit court of Madison County. ¶ 26 Affirmed.