PER CURIAM.

Appeal from Shawnee District Court; Larry D. Hendricks, Judge.
Joe Little and Lee R. Barnett, of Auburn, for appellant/cross-appellee. Shelly Starr, chief of litigation, and David Starkey, city attorney, for appellees/cross-appellants.
Before STANDRIDGE, P.J., MARQUARDT and ARNOLD–BURGER, JJ.

MEMORANDUM OPINION

PER CURIAM.

Ronald E. Tichenor, Jr., was injured while being handcuffed by Officer Scott Scurlock of the Topeka Police Department. As a result, Tichenor filed battery and negligence claims against Scurlock and the City of Topeka (collectively referred to as Defendants). After the district court denied Defendants' two motions for summary judgment, the case proceeded to trial. A jury found in favor of Defendants on both of Tichenor's claims. On appeal, Tichenor raises issues concerning the instructions given to the jury and the district court's refusal to allow him to amend his petition to include a claim for punitive damages. Defendants filed a cross-appeal in which they challenge the district court's decisions to deny their motions for summary judgment. For the reasons stated below, we affirm the judgment in favor of Defendants and dismiss the issues raised in Defendants' cross-appeal as moot.

Facts

Officer Scurlock and Shawnee County Sheriff's Deputy Mitchell Johnson were members of a gang task force jointly operated by the Topeka Police Department and the Shawnee County Sheriff's Department. During the late evening and early morning hours of August 8 and 9, 2008, the two officers were on patrol in Johnson's fully marked patrol vehicle. At 12:37 a.m. on August 9, the officers were traveling east on 6th Street in Topeka when they noticed a speeding car driven by Tichenor traveling in the opposite direction. The patrol vehicle's radar indicated that the car was traveling 57 miles per hour. Johnson made a u-turn, turned on his lights and sirens, and began pursuing the car.

Activation of the patrol vehicle's emergency lights and sirens automatically turned on the vehicle's video camera. Activation also should have turned on the “microphone pack” that Johnson wore on his belt to record sound, but Johnson's microphone pack was not working properly that night. Thus, there was no sound recording made of the officers' conversations prior to stopping Tichenor's car and during their interaction with Tichenor at the scene of the traffic stop. The only sound that can be heard on the video recording is the muffled noise of the patrol vehicle's sirens during the pursuit of Tichenor's car. The video recording of the pursuit and the subsequent traffic stop was admitted into evidence at trial and is contained in the record on appeal.

When Johnson made his u-turn and began pursuing Tichenor's car, it took the officers a little over 2 minutes to catch up with Tichenor. Tichenor had abruptly turned north onto Garfield Street and made several more turns while driving through the Potwin neighborhood of Topeka. Scurlock believed Tichenor was trying to elude them. When the officers finally caught up with Tichenor, Tichenor delayed pulling over his car for approximately 45 seconds. Although Tichenor ran a stop sign and made several turns without using his turn signal during this time period, he maintained a regular speed of 25 miles per hour or less. Tichenor eventually stopped his car in front of a residence, which was later determined to be his home. Tichenor remained inside his car after coming to a stop.

Johnson and Scurlock got out of their vehicle and walked up to Tichenor's car. Johnson drew his weapon and aimed it at Tichenor using both hands. Scurlock held a flashlight in his left hand while aiming his weapon at Tichenor with his right. Scurlock yelled at Tichenor to put his hands up, and Tichenor complied, making both of his hands visible. While walking towards the driver's side door, Scurlock holstered his gun and placed his flashlight in his right hand. Johnson backed away from the driver's side of the car while keeping his weapon aimed at Tichenor. Scurlock reached with his left hand and opened the driver's side door. He then used his left hand to grab Tichenor's left wrist and attempted to pull Tichenor out of the car, but Tichenor was still wearing his seatbelt. Scurlock allowed Tichenor to disengage the seatbelt and to get out of the car. Scurlock, again using his left hand, grabbed Tichenor's left wrist and ordered Tichenor to lie on the ground. Tichenor, while Scurlock was holding his left wrist, quickly lowered himself onto his knees and used his right arm to lower the right side of his body onto the pavement. Tichenor then rolled onto his belly. While doing this, Tichenor laid his left cheek onto the pavement.

As Tichenor was lowering himself to the ground, Scurlock, using his left hand, pulled Tichenor's left arm behind his back while applying pressure to Tichenor's left shoulder blade with the flashlight Scurlock gripped in his right hand. As Scurlock was doing this, he quickly stepped over the back of Tichenor's legs with his right foot and shifted his weight to that foot. Scurlock then brought his right knee down momentarily onto Tichenor's lower back before bringing his knee back up and shifting his weight forward, all the while continuing to secure Tichenor's left arm behind his back. The video shows that as Scurlock shifted his weight forward, the momentum of which caused him to bring his right knee down again, this time making contact somewhere in the area between Tichenor's right shoulder, neck, and right cheek. After doing this, Scurlock instantly lifted his right knee up and hovered above Tichenor while securing both of his arms behind his back. Scurlock then lowered his right knee onto the pavement next to the right side of Tichenor's body and proceeded to handcuff him. These actions occurred within the timeframe of approximately 17 seconds.

After seeing blood come from Tichenor's mouth, the officers decided to transport Tichenor to the hospital. Medical personnel at the hospital determined that Tichenor had sustained a broken jaw and needed surgery in order to repair it.

Tichenor ultimately received tickets for speeding, running a red light, and for failing to yield to an emergency vehicle. Tichenor paid the fines for each of these traffic infractions without contesting them.

Tichenor filed a claim for damages with the City of Topeka pursuant to K.S.A. 12–105b. The City denied his claim. Thereafter, Tichenor filed a lawsuit in district court against the City and Scurlock based on theories of both negligence and battery. Defendants filed two motions for summary judgment (one before the discovery deadline and one after the discovery deadline), arguing that Scurlock's actions in taking Tichenor into custody did not constitute negligence or battery as a matter of law. Defendants also argued that the Kansas Tort Claims Act barred liability for Scurlock's actions. The district court denied both motions, and the case proceeded to a jury trial. The jury ultimately found in favor of Defendants on both of Tichenor's claims.

Analysis

On appeal, Tichenor claims the district court erred in instructing the jury and also in denying his request to amend the petition to include a claim for punitive damages. We address each claim of error in turn. A. Jury Instructions

Tichenor asserts two separate jury instruction errors in his first claim on appeal. First, Tichenor argues the district court erred by providing a comparative fault instruction for the jury to consider in conjunction with his claim of negligence against Defendants. Second, Tichenor argues the district court erred in failing to provide the jury with a “spoliation” instruction with respect to the lack of audio on the video recording of the traffic stop. Because Tichenor lodged an objection to the comparative fault instruction and to the lack of spoliation instruction, this court applies the following standard of review to both of these issues:

“ ‘It is the duty of the trial court to properly instruct the jury upon a party's theory of the case.... Instructions in any particular action are to be considered together and read as a whole, and where they fairly instruct the jury on the law governing the case, error in an isolated instruction may be disregarded as harmless. If the instructions are substantially correct, and the jury could not reasonably be misled by them, the instructions will be approved on appeal.’ [Citation omitted.]” Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 383, 266 P.3d 516 (2011).

1. Comparative Fault Instruction

Kansas adopted the doctrine of comparative fault in 1974. The doctrine requires Kansas courts to reduce an award for damages in proportion to the amount of fault attributed to the party claiming damages. K.S.A. 60–258a(a). A party is at fault when he or she is negligent and that negligence caused or contributed to the event which brought about the injury or damages for which a claim is made. Sharpies v. Roberts, 249 Kan. 286, 295, 816 P.2d 390 (1991); PIK Civ. 4th 105.01. Negligence is the lack of ordinary care. It is the failure of a person to do something that an ordinary person would do, or the act of a person in doing something that an ordinary person would not do, measured by all the circumstances then existing. Beck v. Kansas Adult Authority, 241 Kan. 13, 33, 735 P.2d 222 (1987). Whether a person's negligence caused or contributed to the resulting injury or damages is a question of fact. See Rojas v. Barker, 40 Kan.App.2d 758, 764, 195 P.3d 785 (2008), rev. denied 289 Kan. 1280 (2009). Under the principle of comparative fault, a plaintiff cannot be awarded damages if the plaintiff is found to be 50 percent or more at fault for the occurrence resulting in harm to the plaintiff. See K.S.A. 60–258a(a); see Wisker v. Hart, 244 Kan. 36, 40–41, 766 P.2d 168 (1988).

In this case, the district judge instructed the jury that it should

“decide this case by comparing the fault of the parties. In doing so, you will need to know the meaning of the terms ‘negligence’ and ‘fault.’

“Negligence is the lack of reasonable care. It is the failure of a person to do something that a reasonable person would do, or it is doing something that a reasonable person would not do, under the same circumstances.

“A party is at fault when he or she is negligent and that negligence caused or contributed to the event which brought about the claim(s) for damages.

“I am required to reduce the amount of damages you may find for any party by the percentage of fault, if any, that you find is attributable to the party.

“A party will be able to recover damages only if that party's fault is less than 50 percent of the total fault assigned. A party will not be able to recover damages, however, if that party's fault is 50 percent or more.”

The district court then instructed the jury that if it found any party at fault, it had to assign a percentage of fault to that party ranging between 1 and 100 percent and “the total of all fault must be 100%.” The district court also instructed the jury that if any party was found not to be at fault, that party was to receive a “0” to indicate no liability.

In conjunction with these instructions, the district court described the parties' contentions regarding the negligence claim:

“[Tichenor] claims: that he was injured due to the Defendant[s'] fault when Defendant Scott Scurlock broke his jaw during the course of a traffic stop. [Tichenor] claims medical expenses, lost wages and pain and suffering.

“That he was damaged due to the Defendant[s'] breach of duty in the following respects:

“NEGLIGENCE:

“That [Tichenor] was under the custody and control of Defendant Scott Scurlock when his injuries occurred;

“That the Defendant[s] owed a duty of reasonable care for the safety of [Tichenor];

“That the Defendant[s] had a duty not to use unreasonable force against [Tichenor];

“That the Defendant[s] did not exercise reasonable care in protecting [Tichenor] from harm;

....

“[Tichenor's] burden of proof:

“[Tichenor] has the burden to prove that his claims are more probably true than not true. It is not necessary that each of you agree upon a specific claim.

“The Defendant[s] admit that injuries occurred to [Tichenor].

“The Defendants deny that they were negligent.... The Defendants also assert that Officer Scurlock's use of force in arresting [Tichenor] was reasonable, necessary and shows that he was not negligent for the following reasons:

“1. Officer Scurlock and Sheriff['s] Deputy Johnson clocked [Tichenor] at 57 miles per hour on 6th Street around 6th and Fillmore as [Tichenor] was traveling West and Defendant[s] were traveling East on 6th Street.

“2. Deputy Johnson activated his lights and sirens and pursued [Tichenor] from 6th and Fillmore, West on 6th Street and then North on Garfield Street and into the Potwin neighborhood.

“3. [Tichenor] continued to try to elude Officer Scurlock before he stopped in front of his house at 186 Hawthorn.

“As a result of Officer Scurlock's pursuit of [Tichenor], Officer Scurlock acted reasonably in taking [Tichenor] to the ground and handcuffing him.

“Defendants[ ] also dispute the nature and extent of [Tichenor's] claimed damages.”

Finally, the district court instructed the jury that it had to apply the following test to determine whether Scurlock's use of force during the arrest of Tichenor was reasonable and, thus, not negligent:

“A law enforcement officer who is making an arrest for a misdemeanor committed in his presence or view has the right or privilege to use reasonable force to effect the arrest. The officer has discretion to determine the degree of force required under the circumstances as they appear to the officer at the time, in other words, from the perspective of a reasonable officer on the scene. The test to determine the actual amount of force necessary is not one of hindsight. The degree of force used may be reasonable even though it is more than is actually required. The officer may not, however, use an unreasonable amount of force or wantonly or maliciously injure a suspect.” (Emphasis added.)
See Dauffenbach v. City of Wichita, 233 Kan. 1028, 1034–35, 667 P.2d 380 (1983).

Ultimately, the jury in this case returned a verdict in favor of Defendants, assigning 80 percent fault to Tichenor and only 20 percent fault to Defendants.

In challenging the verdict, Tichenor argues the district court should not have instructed the jury on comparative fault because, according to Tichenor, there was no evidence presented at trial to show that his actions after stopping his car in front of his house were negligent or caused or contributed to the injury he sustained during his arrest. Specifically, Tichenor contends that after he stopped his car, he complied with all of the officers' orders and did not resist Scurlock's efforts to remove him from the car and place him under arrest. With regard to his actions prior to stopping his car ( i.e., refusing to pull over for a police vehicle that had its lights and sirens activated), Tichenor contends that these actions, as a matter of law, could not have contributed to Scurlock's decision to take him to the ground and handcuff him because according to Dauffenbach, “the public should be protected from overreaction by law enforcement officers. It is not the duty of a law enforcement officer to punish a suspect by using unreasonable force or to wantonly or maliciously injure the suspect.” 233 Kan. at 1035, 667 P.2d 380.

Based on this quote from Dauffenbach, Tichenor seems to suggest that a person's actions prior to submitting to police authority should not be considered at all when determining whether that person was partly at fault for injuries he or she may have sustained while being arrested. We find this argument to be without merit. Dauffenbach clearly establishes that in order to determine whether an officer used “reasonable force” to make an arrest, the trier of facts should consider all of the circumstances as they appear to the officer at the time of the arrest. 233 Kan. at 1034–35, 667 P.2d 380; see also Caplinger v. Carter, 9 Kan.App.2d 287, 293, 676 P.2d 1300,rev. denied 235 Kan. 1041 (1984) (“The reasonableness of the force used in making an arrest under all the circumstances is a question for the jury.”); cf. Bella v. Chamberlain, 24 F.3d 1251, 1256 n. 7 (10th Cir.1994) (events immediately connected with the actual seizure of a suspect are taken into account when determining whether the seizure was reasonable under the Fourth Amendment). Consequently, in determining whether an officer used reasonable force, a jury must consider not only the officer's actions in effecting the arrest but also the arrestee's immediate actions leading to his or her arrest. Although an officer is prohibited from using excessive force to “punish” a person for an act that person may have committed prior to being arrested, an officer may take into consideration the individual's immediate actions prior to submitting to police authority when determining the amount of force to use to effectively and safely arrest that person. Ultimately, though, the trier of fact must decide whether the force used to accomplish an arrest was reasonable given the surrounding circumstances leading to the arrest.

Based on Dauffenbach, we find the district court properly instructed the jury that in determining whether the amount of force Scurlock used during the arrest of Tichenor was reasonable, the jury could consider Tichenor's actions in refusing to pull over for the patrol vehicle and whether those actions justifiably caused or contributed to Scurlock taking the actions that he did which ultimately led to Tichenor being injured. Because the verdict indicated Tichenor was 80 percent at fault for the injuries he sustained, the jury obviously found Tichenor's refusal to pull his car over justified the amount of force Scurlock used to take Tichenor into custody.

Tichenor also argues that the comparative fault instruction provided was improper because it failed to inform the jury Defendants had the burden to prove that (1) the officers clocked Tichenor traveling at 57 miles per hour in the area of 6th Street and Fillmore, (2) Johnson activated his lights and sirens and pursued Tichenor from that area into the Potwin neighborhood, and (3) Tichenor continued to elude the officers until he stopped in front of his house.

In support of his argument, Tichenor cites Zak v. Riffel, 34 Kan.App.2d 93, 100–01, 115 P.3d 165 (2005), a medical malpractice case in which a district court instructed the jury to consider whether the patient's death resulted from his obesity and lifestyle but failed to instruct the jury that the defendant had the burden to prove this allegation. The Zak court found that the comparative fault instruction in that case was erroneous because it only instructed the jury on one aspect of fault—causation—without identifying any specific negligent actions of the patient that could be compared with the allegedly negligent actions of the defendant. The Zak court noted that although “the jury was informed in another instruction that a patient has a duty to follow his or her physician's reasonable treatment advice, the jury was not given any guidance in the instructions as to what advice [the patient] failed to follow.” 34 Kan.App.2d at 103–04, 115 P.3d 165. The court also noted that the “problem was exacerbated by the fact that defense counsel never pointed to any specific allegations of fault against [the patient] during the closing argument.” 34 Kan.App.2d at 104, 115 P.3d 165. Finally, the court noted that the instruction failed to state that the defendant had the burden to prove the patient's comparative fault. Based on these deficiencies—which the court found were not alleviated by the other jury instructions—the court determined that the instructions as a whole were not substantially correct and could have misled the jury. Accordingly, the court remanded the case for a new trial. 34 Kan.App.2d at 104–05, 109, 115 P.3d 165.

Tichenor's case is distinguishable from Zak for two primary reasons. First, the district court specifically identified those actions taken by Tichenor that led to Scurlock using the amount of force that he did to arrest Tichenor. Although the district court did not specifically instruct the jury that Defendants had the burden to prove that Tichenor engaged in these actions, the second distinction is that the undisputed evidence presented at trial readily established that the officers witnessed Tichenor speeding near 6th and Fillmore, that they pursued him into the Potwin neighborhood, that Tichenor failed to pull his car over once the officers' vehicle—with its lights and sirens activated—was directly behind him, and that Tichenor continued to drive his car for several blocks until he reached his home. Notably, the video recording of the officers' pursuit of Tichenor's car was played for the jury at the trial, and Tichenor admitted at trial to speeding on 6th Street and conceded that he continued driving his car to his home despite clearly seeing the patrol vehicle following him.

In sum, we find the district court's instructions on comparative fault fairly instructed the jury on the law governing the case before it. The instructions were substantially correct, and the jury could not have been reasonably misled by them.

2. Spoliation Instruction

The district court denied Tichenor's request to give the following instruction to the jury:

“You have heard evidence that the vehicle used by the defendants in this litigation is equipped with audio recording capability of the incident and that Deputy Johnson has been disciplined for failure to use the audio recording capability. You have also heard testimony that there was no report of audio recording failure or malfunction. Since there is no audio with the video and it was within defendant[s'] control to produce audio, you can presume that had the audio existed that it would have shown that the defendants intended to commit battery or negligence against the plaintiff.”

Tichenor argues that he presented evidence at trial that justified giving the jury a spoliation instruction regarding the lack of audio on the video recording of the traffic stop. Specifically, he contends there is no dispute that the patrol vehicle had the capability to record sound but Defendants failed to offer any explanation at trial for why the video lacked accompanying audio. Tichenor also finds significant the fact that Deputy Johnson's report of the traffic stop failed to note that the audio equipment was broken or malfunctioned. Finally, Tichenor states that Johnson admitted that he had been previously disciplined for failing to activate his audio recording device. Given all of this evidence, Tichenor argues that the jury should have been instructed to presume that the missing audio contained evidence favorable to him ( i.e., that Scurlock and Johnson discussed battering or otherwise using unreasonable force against Tichenor prior to him pulling his car over).

Generally, a district court may give a spoliation instruction to the jury if it is established that a party had evidence in its possession which the party destroyed or otherwise concealed from the opposing party. See Armstrong v. City of Salina, 211 Kan. 333, 339, 507 P.2d 323 (1973) (“Failure of a party to an action to throw light upon an issue peculiarly within his [or her] own knowledge or reach, raises a presumption that the concealed information is unfavorable to him [or her].”); Home Life Ins. Co. v. Clay, 13 Kan.App.2d 435, Syl. ¶ 2, 773 P.2d 666,rev. denied 245 Kan. 783 (1989) (“Failure to produce records and documents within a party's control raises a presumption that the evidence which would be disclosed by those records is unfavorable to that party.”); State v. Romero, No. 89,899, 2004 WL 1086967, at *4 (Kan.App.2004) (unpublished opinion) (“Kansas courts have the authority to give a ‘spoliation’ instruction to the jury when the State has destroyed evidence in bad faith.... In particular, adverse inference instructions are appropriate when the State knowingly destroys potentially exculpatory evidence.”).

But in this case there is nothing in the record to suggest that an audio recording of the officers' alleged conversation before or after arresting Tichenor ever existed; as a result, there was no evidence to destroy or hide. Even if we were to extend the propriety of a spoliation instruction to circumstances where a party failed to create potentially exculpatory evidence—which we specifically decline to do—there is no evidence here that Defendants' failure to create the audio recording in this case was the result of malice, ill will, or bad faith. The record shows that Johnson wore a microphone pack on his belt that was supposed to automatically activate (along with the patrol vehicle's video camera) when he turned on the lights and sirens to his patrol vehicle. Johnson said that although he did not know why, his microphone pack malfunctioned when he began pursuing Tichenor and, therefore, no audio was included on the video recording of either the pursuit or the traffic stop. Although Johnson admitted at trial that he had been previously disciplined for not turning on his microphone pack, he testified that he was not disciplined in connection with this case because his microphone pack failed to record audio due to a mechanical malfunction and not because he had failed to turn it on. And, even if there were evidence of malice, ill will, or bad faith, we note that neither Johnson nor Shawnee County were ever parties to this lawsuit, so it is questionable whether any bad faith on their part could be attributed to Defendants for purposes of giving a spoliation instruction.

In sum, we conclude the district court properly denied Tichenor's request to give the jury a spoliation instruction regarding the missing audio because there was no evidence to suggest that an audio recording of the pursuit and traffic stop ever existed and there was no evidence to suggest that Johnson acted in bad faith by failing to record the audio of the incident. B. Punitive Damages

In his second claim on appeal, Tichenor argues the district court erred when it denied his request to amend his petition to include a claim for punitive damages. We disagree.

In this case, the jury found in favor of Defendants on the battery and negligence claims and therefore did not award Tichenor any damages at all. Our Supreme Court consistently has held that “[a] verdict for actual damages is essential to the recovery of punitive damages.” Wendt v. University of Kansas Med. Center, 274 Kan. 966, 982, 59 P.3d 325 (2002). Accordingly, Tichenor's claim on appeal regarding punitive damages is moot. See Wisker, 244 Kan. at 41–42, 766 P.2d 168 (because jury found in favor of defendant and, thus, did not award actual damages to plaintiff, plaintiff could not be awarded punitive damages; accordingly, the issue of whether district court erred in not instructing jury on punitive damages was rendered moot by jury's verdict). C. Cross–Appeal

Defendants filed a cross-appeal in order to challenge the district court's decision to deny their two motions for summary judgment. Because Tichenor has failed to establish that the jury's verdict in favor of Defendants should be reversed, the issues raised in Defendants' cross-appeal are now moot. See Gilley v. Kansas Gas Service Co., 285 Kan. 24, 31–32, 169 P.3d 1064 (2007) (when a judgment in favor of defendant is affirmed on appeal, issues raised in defendant's cross-appeal are rendered moot); McDaniel v. Southwestern Bell, Inc., 45 Kan.App.2d 805, 811, 256 P.3d 872 (2011), rev. denied 293 Kan. –––– (January 20, 2012).

Affirmed; cross-appeal dismissed.