Opinion
11-P-1372
03-13-2012
SALLY KLESSENS v. CITY OF SOMERVILLE & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This appeal involves the aftermath of a physical altercation in the checkout line of the Somerville store location of a well-known retailer, resulting in the arrest of the plaintiff. The plaintiff brought a tort action in Superior Court for (1) assault and battery against Officer Kiely, (2) negligent infliction of emotional distress against the City of Somerville (hereafter city), and (3) intentional infliction of emotional distress against Officers McGrath and Kiely. The plaintiff appeals from allowance of the joint motion of the afformentioned defendants for summary judgment. We affirm.
In allowing the defendants' motion for summary judgment, the judge ruled that: '1. Where the plaintiff has alleged that the defendants caused her bodily harm and emotional distress through the use of excessive force in arresting her, an intentional act, her claim for negligent infliction of emotional distress must fail; 2. Where the evidence presented by all parties indicate that the defendant officers executed a standard arrest, involving forcing the person to the ground and placing handcuffs on the person behind her back, the plaintiff has failed to establish a triable issue that the defendants used excessive force in arresting her. Absent is any evidence that the defendants beat her or kicked her or took any violent action against her other than what is undisputably an ordinary arrest. This claim fails as well; 3. Where one officer ordered the plaintiff to return to the building and ordered her arrested and where the plaintiff was resisting arrest and where the arrest was made without excessive force, the plaintiff has failed to demonstrate that the defendants' activity was extreme, outrageous, and beyond all possible bounds of decency and intolerable in a civilized community. Accordingly plaintiff's claim of intentional infliction of emotional distress also fails.'
The plaintiff was in the checkout line at Building 19 in the former Assembly Square Mall in Somerville. During the checkout process, there arose a price dispute regarding one of the items the plaintiff intended to purchase, which led to a lengthy price check by the cashier, so as to cause other customers in line to become impatient to the point that, according to the plaintiff, a woman behind her began to poke her. The altercation escalated into a full-fledged fight, with three women attacking the plaintiff. Somerville police were called, and they arrested the plaintiff.
The plaintiff was charged with assault and battery by means of a dangerous weapon, assault and battery, a criminal civil rights violation and resisting arrest. Ultimately the plaintiff was convicted after a jury trial of two counts of assault and battery, which was affirmed on appeal to this court. See Commonwealth v. Klessens, 67 Mass. App. Ct. 1114 (2006).
1. Assault and Battery. While genuine issues of fact may exist concerning the occurrence at the store during the altercation between the plaintiff and other customers before the police arrived, in examining the actions of the police, the occurrences that preceded their arrival are not material. They do not materially inform the analysis of the motion at bar, which instead must be based upon the record of what police were told by both bystanders and victims, and their actions which followed. While she disputes the truth of the witness statements to police, the plaintiff cannot dispute that the defendant officers, who were not present at the time of the attacks, were told by witnesses that the plaintiff had assaulted others with her hands and feet and had hurled ethnic epithets while doing so. From these statements, the police had probable cause to believe that the plaintiff had committed arrestable offenses, including two felonies, and therefore executed an arrest. It is well-settled that the jury's subsequent acquittal of the plaintiff on the charged felony offenses does not impact whether probable cause properly existed for the arrest. See Muniz v. Mehlman, 327 Mass. 353, 359 (1951), quoting from Higgins v. Pratt, 316 Mass. 700, 709 (1944)(absence of probable cause must be 'affirmatively proved'). In fact, a jury convicted the plaintiff of assault and battery, of which she had been charged.
It is also well established that a police officer may use such force as is necessary and reasonable to effectuate an arrest and overcome physical resistance. Julian v. Randazzo, 380 Mass. 391, 396 (1980). Commonwealth v. Klein, 372 Mass. 823, 832 n.8 (1977). See Jesionowski v. Beck, 937 F. Supp. 95, 103 (D. Mass. 1996). What is pertinent for inquiry is 'whether the force used was 'objectively reasonable' under all the circumstances; that is whether it was consistent with the amount of force that a reasonable police officer would think necessary to bring the arrestee into custody.' Gaudreault v. Salem, 923 F.2d. 203, 205 (1st Cir. 1990), cert. denied, 500 U.S. 956 (1991).
As a valid arrest, it is apparent that some level of force was reasonably to be expected. Both parties agree that the arrest was of a 'forcible' nature, but the parties disagree over the resistance of the plaintiff and the extent of force used. In particular, the plaintiff's allegation against Officer Kiely ultimately involves her being 'shoved . . . to the ground,' having the cuffs put on her 'forcibly,' his 'kneeling on [her] back . . . which cut [her] buttocks with the hand cuffs.'
'[A] party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if [the moving party] demonstrates, by reference to material described in Mass.R.Civ.P. 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of [the nonmoving] party's case.' Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). The officers' affidavits show that the force was no more than reasonably necessary to effectuate the arrest. Therefore, the plaintiff must show the existence of genuine issues of fact that the force used was excessive. While we recognize disagreement regarding the plaintiff's actions during the arrest, namely, that the police allege the plaintiff resisted arrest and attempted to flee before being subdued, when viewed in a light most favorable to the plaintiff, the amount of force alleged is relatively minor and the injury alleged very small (a cut to the back when the cuffs were pressed against her during the arrest). This record shows, as matter of law, no more than a routine arrest with reasonable force. See Graham v. Connor, 490 U.S. 386, 394-395 (1989). Thus, we discern no error in the judge's determination on the plaintiff's allegation of assault and battery.
2. Emotional distress. Turning to the plaintiff's allegations of negligent and intentional infliction of emotional distress brought against the city and the defendant officers, respectively, the judge observed that the conduct underlying the allegations was taken intentionally to investigate the altercation and effectuate an arrest. Therefore, as matter of law, the plaintiff's allegations cannot constitute the negligent infliction of emotional distress. Payton v. Abbott Labs, 386 Mass. 540, 556-557 (1982) (the plaintiff must demonstrate [1] negligence (duty of reasonable care and breach of that duty); [2] emotional distress; [3] causation; [4] physical harm manifested by objective symptomatology; and, [5] that a reasonable person would have suffered emotional distress under like circumstances).
With respect to the intentional infliction of emotional distress, as previously stated, the moving party has produced affidavits which demonstrate that no genuine issues of material fact exist to show (1) Officers McGrath and Kiely intended to inflict emotional distress or should have known that emotional distress was the likely result of their conduct; (2) the officers' conduct was extreme and outrageous (beyond all possible bounds of decency and utterly intolerable in a civilized community); (3) the actions of the officers were the cause of the plaintiff's distress; and (4) the emotional distress sustained by the plaintiff was severe and of such a nature that no reasonable person could be expected to endure it. See Agis v. Howard Johnson Co., 371 Mass. 140, 144-145 (1976). Given the affidavits, it was the plaintiff's burden to counter with evidence to show that a genuine and material dispute of fact exists. She has not done so.
As the plaintiff has failed to demonstrate, on this record, the existence of genuine issues of material fact in connection with her alleged causes of action, the judge's decision to allow the motion has not been shown to be in error. Judgment affirmed.
By the Court (Grasso, Fecteau & Sullivan, JJ.),