Opinion
Civ. No. 03-3343 (RHK/AJB).
August 20, 2004
Robert Bennett, Eric Hageman, and Andrew Noel, Flynn, Gaskins Bennett, L.L.P., Minneapolis, Minnesota, for Plaintiff.
Frank E. Villaume III, Assistant City Attorney, St. Paul, Minnesota, for Defendants.
MEMORANDUM OPINION AND ORDER
Introduction
Plaintiff Robert Kearney has sued Defendants Jay Griffin and Ryan Murphy (collectively "Defendants") in their individual capacities as police officers to recover damages for injuries allegedly caused by Defendants. He asserts that Defendants violated his constitutional rights under the Fourth and Fourteenth Amendments and that Defendants were negligent. Defendants have moved for partial summary judgment with respect to Kearney's negligence claim on the ground of insufficient evidence. Because there is sufficient evidence of negligence to raise a genuine issue of material fact, the Court will deny the motion.
Background
Robert Kearney was living at a "sober house" located at 961 Case Avenue at the time of the incident giving rise to this action. (Kearney Dep. Tr. at 16-19.) On May 31, 2002 at approximately 4:30 p.m. Kearney showed up at 961 Case in an intoxicated state. (Id. at 83-4.) Ron Schwartz, a cook at a related facility, encountered Kearney at 961 Case and called the police asking that Kearney be taken to the Ramsey County Detoxification Center. (Schwartz Dep. Tr. at 16-20.) Defendants responded to the call. (Griffin Dep. Tr. at 21-27.)
The events following Defendants' arrival at 961 Case are in dispute. Kearney alleges that Defendants entered the house, walked up to the third floor where he was living, and pushed him or applied "pressure" to his back causing him to fall down a steep flight of stairs and to suffer a severe fracture in his right leg. (Kearney Dep. Tr. at 97-8.) In contrast, Defendants deny going up to the third floor and assert that Kearney did not appear to be injured at any time while he was in their presence. (Griffin Dep. Tr. at 49; Murphy Dep. Tr. at 14-16.) According to Defendants, Kearney was sitting on the landing between the second and third floors when they first encountered him and at no time did they see him fall down any stairs or injure himself. (Id.)
The instant motion is based on Kearney's statements in his Letter of Complaint to the St. Paul Police Department ("Letter of Complaint") and on isolated statements in his deposition. On November 27, 2002 Kearney sent a Letter of Complaint to the Department providing "a detailed account of the incident" at issue in this suit. (Ltr. of Compl. at 1.) In relevant part, he wrote that "[Defendants] came up to the third floor to take me out of the house and, for no reason, pushed me down the flight of stairs going from the third floor to the second floor." (Id.) Kearney also stated that "the following acts by your officers were improper: (1) they pushed me down a flight of stairs knowing that I was intoxicated. . . ." (Id. at 2.)
The only witnesses to the events that led to Kearney's injury were Kearney and, according to Kearney's allegations, the Defendants. (Kearney Dep. Tr. at 102.) Defendants have moved for partial summary judgment seeking dismissal of Kearney's negligence claim; they do not, however, contest that there are genuine issues of material fact regarding the Fourth and Fourteenth Amendment claims of excessive force, unlawful seizure, and failure to protect and care for Kearney while he was in Defendants' custody, care and control.
Standard of Review
Summary judgment is proper if, drawing all reasonable inferences favorable to the non-moving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). The moving party bears the burden of showing that the material facts in the case are undisputed. See Celotex, 477 U.S. at 322; Mems v. City of St. Paul, Dep't of Fire Safety Servs., 224 F.3d 735, 738 (8th Cir. 2000). The court must view the evidence, and the inferences that may be reasonably drawn from it, in the light most favorable to the nonmoving party.See Graves v. Arkansas Dep't of Fin. Admin., 229 F.3d 721, 723 (8th Cir. 2000); Calvit v. Minneapolis Pub. Schs., 122 F.3d 1112, 1116 (8th Cir. 1997). The nonmoving party may not rest on mere allegations or denials, but must show through the presentation of admissible evidence that specific facts exist creating a genuine issue for trial. See Anderson, 477 U.S. at 256; Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).
Analysis
Defendants assert that Kearney has not provided sufficient evidence to submit his claim of negligence to a jury. According to Defendants, the statements Kearney made in his Letter of Complaint prevent him from submitting his negligence claim to a jury — they argue that Kearney cannot become less certain of his allegations of intentional conduct solely to keep his negligence claim alive.
Defendants' position was clarified during oral arguments before this Court on July 23, 2004.
During oral argument, Defendants' counsel directed the Court's attention to Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361 (8th Cir. 1983) as support for dismissal of the negligence claim. Camfield, however, is inapposite to the present case. In Camfield, the Eighth Circuit held that, for purposes of summary judgment, a genuine issue of material fact is not created when the non-moving party contradicts her deposition testimony with a subsequent affidavit. Id. at 1365-66; see also Dunavant v. Moore, 907 F.2d 77, 79 n. 4 (8th Cir. 1990) (citing Camfield). Here, Kearney has alleged negligence on the part of Defendants since the inception of the suit. His Letter of Complaint, while suggesting intentional conduct on the part of Defendants, does not foreclose his ability to claim negligence. There are no gross inconsistencies or suspicious changes in testimony in the present case, as there were in Camfield. Instead, some (seemingly reasonable) uncertainty regarding the Defendants' state of mind was revealed upon detailed questioning from Defendants' counsel.
Defendants highlight short excerpts of Kearney's deposition testimony in an attempt to establish that he is only asserting claims based on intentional conduct. Defendants do not, however, address the repeated statements throughout Kearney's deposition suggesting his uncertainty regarding Defendants' intentions. For example, Kearney repeatedly states that he does not know whether he was deliberately pushed down the stairs; some of his statements include: "I don't know if [the push] was deliberate, sir."; "I can't read [the Defendants'] mind, sir."; "I felt pressure when I went down the stairs." (Kearney Dep. Tr. at 23, 24.) In fact, at one point, Defendants' counsel elicited testimony precisely on point: "Q: You don't know if one of the officers deliberately pushed you down the stairs or the pressure was from him inadvertently bumping you? A: I don't know." (Id. at 104.) Kearney's deposition testimony establishes that there is sufficient evidence such that a reasonable jury could find, in the absence of excessive force, that Defendants were negligent.
Defendants repeatedly assert that Kearney "denies that his fall was an accident." (Defs.' Reply Mem. at 2; Defs.' Mem. in Supp. at 3.) This statement stems from a single question and answer during Kearney's deposition: "Q: It was not your claim in November of 2002 that what happened there, being pushed down the stairs, was an accident, is it? A: No." (Kearney Dep. Tr. at 25.) This question was preceded and followed by other lines of questioning, and the wording of the question is not without some ambiguity and confusion. The court in Camfield stressed that conflicting affidavits would be disregarded in the summary judgment analysis in order to prevent parties from "thwart[ing] the purpose of Rule 56 by generating issues of fact through affidavits." 719 F.2d at 1364. The fact that there is some slight inconsistency in response to rigorous questioning in Kearney's deposition testimony does not raise a Camfield issue.
Defendants also cite two cases from the United States District Court for the Southern District of New York as support for the dismissal of Kearney's negligence claim. In Mazurkiewicz v. New York City Transit Auth., P.O., 810 F. Supp. 563 (S.D.N.Y. 1993) and Dineen v. Stramka, 228 F. Supp. 2d 447 (S.D.N.Y. 2002) the court granted motions for summary judgment on the plaintiffs' negligence claims. In Dineen, the plaintiff claimed that he "was dragged out of the car, beaten against the back of his knees with a night stick by defendant and thrown to the ground." 228 F. Supp. 2d at 450. Plaintiff's negligence and excessive force claims were based on this same conduct, which the court held could not support a negligence claim. Id. at 454. Similarly, in Mazurkiewicz, the plaintiff alleged negligence based on the same actions that constituted his excessive force claims. 810 F. Supp. at 570-71. In the present case, Kearney concedes that a jury could not find Defendants liable of both intentional and negligent conduct. If a jury finds Defendants did not use excessive force, the issue of negligence may still be considered. Contrary to the Southern District of New York cases relied upon by Defendants, a finding of negligence in this case would be based on different facts than a finding of excessive force. Accordingly, because there are material issues of fact as to the negligence claim, Defendants' motion for partial summary judgment will be denied.
In both cases the plaintiffs' main allegations were constitutional claims of excessive force against police officers, and summary judgment was not granted on those claims.
For instance, a jury could find, based on the testimony of the parties, that the officers did not intentionally push Kearney, or that the officers did not touch Kearney but were negligent in their failure to help him and keep him safe knowing that he was intoxicated.
If it should develop at trial that the evidence presented by Kearney is clearly supportive of only intentional conduct on the part of Defendants, the issue of negligence will not be submitted to the jury.