263 Kan. 143
(949 P2d 31)
No. 77,184
LOUIS JACKSON, JR., Appellee, v. CITY OF KANSAS CITY, KANSAS, Appellant.
SYLLABUS BY THE COURT
1. If a motion in limine is denied, the moving party must object to the evidence at trial to preserve the issue on appeal. The failure to object to the evidence at trial results in the issue not being preserved on appeal.
2. No party may assign as error the giving of or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and the grounds of his or her objection, unless the instruction is clearly erroneous.
3. An instruction is clearly erroneous when the reviewing court reaches a firm conviction that, if the trial error had not occurred, there was a real possibility that the jury would have returned a different verdict.
4. When a verdict is challenged as being contrary to the evidence, it is not the function of this court to weigh the evidence. If the evidence, with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the prevailing party, supports the verdict, it will not be disturbed on appeal.
5. A point not presented to the trial court will not be considered for the first time on appeal.
6. Where the alleged passion or prejudice of the jury is not shown by definite proof, but depends for support solely on the size of the verdict, the award will be upheld unless it shocks the conscience of the court. There is no simple, symmetrical pattern or design for determining whether a verdict is sufficient or insufficient, since each case must stand on its own facts.
7. In passing on a motion for summary judgment, the trial court and this court on appeal are required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. If reasonable minds could differ on the conclusions drawn from the evidence, summary judgment must be denied.
8. In an action against a city for injuries suffered due to alleged negligence of city law enforcement officers, we have examined the record and it is held (1) the instruction given to the jury on a law enforcement officer's duty was not clearly erroneous; (2) the trial court did not err in refusing to give an instruction on the duty to mitigate damages; (3) it is not necessary that medical expenses of an injured plaintiff be paid before evidence can be introduced and recovery made for the unpaid medical expenses that are due and owing; (4) this court will not generally consider issues not presented to the trial court; (5) the trial court did not err in refusing to grant summary judgment to the defendant on the issue of negligence.
Appeal from Wyandotte district court; JOHN J. BUKATY, JR., judge. Opinion filed October 31, 1997. Affirmed.
Wesley K. Griffin, assistant city attorney, argued the cause and was on the brief for appellant.
Gerald N. Jeserich, of Boal and Jeserich, of Kansas City, argued the cause and was on the brief for appellee.
The opinion of the court was delivered by
ABBOTT, J.: The City of Kansas City, Kansas, appeals from a jury verdict awarding $158,500 to Louis Jackson, Jr., for injuries sustained when his throat was cut from ear to ear while being held in police custody with his hands handcuffed behind his back and seated on a street curb. The City of Kansas City appeals, raising six issues.
We are required to view the disputed facts in the light most favorable to the party who prevailed in the trial court. When so viewed, the facts are as follows:
At approximately midnight, Leigh Ann Davis and her boyfriend, plaintiff Louis Jackson, Jr., got into a fight. A neighbor called 911 and indicated that Davis was injured and needed police assistance. Two Kansas City, Kansas law enforcement officers, Kim Crockett and Kent Anderson, were dispatched. The area was very dark. Flashlights were necessary to see. The officers found Davis on a porch bleeding and crying.
The officers observed Jackson walking away from the porch. They arrested him. His hands were handcuffed behind his back, and he was seated on the street curb with his feet out in the street. Jackson had on a white tee shirt with blood on it. Jackson had no visible wounds. The police car had cloth seats which could absorb blood, so a paddy wagon was called to transport Jackson to the police station. At this time, neither Jackson nor anyone else conveyed to the police that Davis had a box knife in her jeans pocket.
As previously stated, Jackson was sitting on the curb facing the street. Behind Jackson was a sidewalk and then a fence. On the other side of the fence was a front yard, and then a house with a front porch. When we view the evidence in the light most favorable to Jackson, it shows Davis was seated on the sidewalk somewhere behind Jackson.
Officer Crockett was standing in the street in front of Jackson. The evidence most favorable to Jackson indicates that Crockett was less than 2 feet in front of Jackson. Officer Anderson was to the right of Jackson. Both officers were using flashlights to enter information in their notebooks.
At some point, Davis left her position behind Jackson and walked toward Jackson, but she was interrupted by Crockett. Crockett testified he escorted Davis back to the porch. Jackson testified that Crockett never escorted Davis back to the porch. Davis herself claimed to have been seated on the sidewalk, not on the porch. The testimony is consistent that at no time was an officer placed between Davis and Jackson. However, Crockett testified that he felt the need to keep Davis and Jackson separated because they "could possibly hurt one another."
Crockett returned to standing in the street in front of Jackson, and Anderson stood in the street to the right of Jackson. Crockett was writing in his notebook when he heard Jackson say he had been set up. A reasonable interpretation of Jackson's comment would be that the police had put him in a position where he was helpless to protect himself from retaliation by Davis.
When Crockett looked up, Davis was standing directly behind Jackson, who was still seated on the curb. Davis pulled Jackson's head backward with one hand, reached around Jackson with her other hand, and used the box knife to cut Jackson's throat from ear to ear.
Jackson testified that Crockett was close enough to reach out and stop Davis from cutting his (Jackson's) throat. The officers had to use force to disarm Davis.
The jury found Jackson 0% liable and the City of Kansas City, Kansas, 100% liable. The City appealed, and the appeal was transferred to this court pursuant to K.S.A. 20-3018(c).
I. MOTION IN LIMINE
The two officers stipulated in an internal investigation that they had violated police procedure. One officer consented to a 20-day suspension without pay, and the other officer consented to a 30-day suspension without pay. Prior to trial, the City filed a motion in limine to prevent any mention of the police procedure violation and punishment. The trial court excluded any mention of punishment, but permitted a limited amount of testimony concerning the officers' stipulation as to violating police procedure.
The City appeals the trial court's denial of its motion in limine and the admission of evidence at trial regarding the internal investigation report's conclusion that the officers violated police procedure.
"If a motion in limine is denied, the moving party must object to the evidence at trial to preserve the issue on appeal. . . . The failure to . . . object to the evidence at trial results in the issue not being preserved on appeal." State v. Johnson, 255 Kan. 252, Syl. ¶ 1, 874 P.2d 623 (1994).
At trial, when Jackson questioned the officers about whether the internal investigation report found they had violated police procedure or whether they had been disciplined for such violations, the City did not object. Because the City failed to object to evidence presented at trial which it tried to exclude through a denied motion in limine, the trial court's ruling on the motion in limine was not properly preserved for appeal. This issue fails.
II. INSTRUCTION
The trial court provided the jury with the following instruction based on Restatement (Second) of Torts § 320 (1965).
"In the State of Kansas, police officers who take another into custody under circumstances that deprive the other of his or her normal power of self-protection, are under a duty to exercise reasonable care to control the conduct of third parties to prevent them from harming the one in custody if the police officers:
"1. know or have reason to know that they have the ability to control the conduct of the third person, and
"2. know or should know of the necessity and opportunity to exercise such control of the third person."
In the proposed instructions submitted by the City, the City requested that additional language, as found in Washington v. State, 17 Kan. App. 2d 518, 839 P.2d 555, rev. denied 252 Kan. 1095 (1992), be included in the above instruction. This language provided:
"This duty to provide reasonable care to protect an inmate from violence is not violated in the absence of a determination that the danger was known, or, in the exercise of ordinary care, should have been known by a prison official. [Citations omitted.]" 17 Kan. App. 2d 518, Syl. ¶ 2.
The trial court did not include this additional language in its instructions to the jury. The City appeals the trial court's ruling.
Jackson points out that "[n]o party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he or she objects and the grounds of his or her objection unless the instruction is clearly erroneous." K.S.A. 60-251(b). Bright v. Cargill, Inc., 251 Kan. 387, 409, 837 P.2d 348 (1992), aff'd 254 Kan. 853, 869 P.2d 686 (1994); see also Leiker v. Gafford, 245 Kan. 325, 358, 778 P.2d 823 (1989) (even if an objection to a verdict form is raised at a motion for a new trial, the party asserting error is still "in no position to assert reversible error in the verdict" if an objection to the verdict form or jury instructions was not noted at trial), overruled in part on other grounds Martindale v. Tenny, 250 Kan. 621, 629, 829 P.2d 561 (1992).
In the instruction conference, the City did not object to the trial court's version of the instruction or its failure to include the City's requested language. Except for its proposed instructions, the City made no mention of, or objection to, the instruction anywhere in the trial. Thus, the City has waived its objection to this instruction on appeal unless the instruction is clearly erroneous.
"An instruction is clearly erroneous when the reviewing court reaches a firm conviction that, if the trial error had not occurred, there was a real possibility that the jury would have returned a different verdict." Noon v. Smith, 16 Kan. App. 2d 818, Syl. ¶ 2, 829 P.2d 922 (1992).
Although the additional language requested by the City would have made the instruction clearer, the instruction at issue is not clearly erroneous. It follows Restatement (Second) of Torts § 320. The additional language requested by the City adds nothing new to the Restatement language. This issue fails.
III. DUTY TO MITIGATE DAMAGES
Jackson testified that shortly after he woke up from surgery to repair his neck injury, he called a family member to take him home from the hospital. He did so without the authorization of the physicians treating him. Jackson later returned to see a doctor to have the staples removed from his neck and to get some pain pills. He saw a doctor two to four times total in relation to his neck injuries. He did not seek treatment from a physician for the scar on his neck, nor did he seek help from a therapist, psychologist, or psychiatrist for the nightmares he had regarding this traumatic incident. Jackson simply consulted a family friend, who is a retired nurse, and she told him to use cocoa butter and hot towels on his neck after the staples were removed to reduce the scarring. Jackson utilized this home remedy and testified that it helped "tremendously" with the scarring.
In its proposed jury instructions, the City requested an instruction on the mitigation of damages pursuant to PIK Civ. 2d 9.42. This proposed instruction provided:
"If you find that Louis Jackson is entitled to recover damages for injury to his person, in fixing the amount thereof you should not include any loss which Louis Jackson could have prevented by reasonable care and diligence exercised by him after the loss occurred."
Finding no evidence which indicated that Jackson's medical injuries, expenses, or pain and suffering would have been any less had Jackson sought and followed traditional medical treatment for his neck wound, the trial court refused to provide the jury with the mitigation instruction. The City appeals the trial court's ruling.
In Theis v. duPont, Glore Forgan Inc., 212 Kan. 301, 307, 510 P.2d 1212 (1973), this court said:
"'It is not infrequently said that it is the "duty" of the injured party to mitigate damages so far as that can be done by reasonable effort on his part. Since his legal position is in no way affected by his failure to make this effort, however, it is not desirable to say that he is under a "duty." His remedy will be exactly the same, whether he makes the effort and avoids harm or not. But if he fails to make the reasonable effort with the result that his harm is greater than it would otherwise have been, he cannot get judgment for the amount of this avoidable and unnecessary increase. The law does not penalize this inaction; it merely does nothing to compensate him for the harm that a reasonable man in his place would have avoided.'"
See Home Life Ins. Co. v. Clay, 13 Kan. App. 2d 435, 445, 773 P.2d 666, rev. denied 245 Kan. 783 (1989).
Here, Jackson presented evidence of the medical treatment he received--staples in his neck, removal of the staples, pain killers, a few check-up visits, and a home remedy to relieve the scarring. Most jurors are not familiar with having their throats cut. Most jurors do not know, through experience or common sense, whether any more medical procedures would have actually made Jackson's physical and emotional injuries less severe than they otherwise were. There is simply no evidence in the record regarding whether Jackson's condition was as good as it could get or whether better treatment could have improved his condition. Without sufficient evidence in the record that this later scenario was the case, as opposed to mere speculation that this was the case, the jurors were not entitled to determine whether Jackson properly had mitigated his damages. There is no evidence in the record to support the City's mitigation theory; thus, the City is not entitled to an instruction explaining its mitigation theory. This issue fails.
IV. MEDICAL CARE
The City filed a motion in limine to preclude the introduction of evidence at trial regarding whether the officers unhandcuffed Jackson or provided Jackson with medical care once his neck was cut. Jackson alleged that such evidence was relevant to the issue of pain, suffering, discomfort, and mental anguish and to show the sequence of events as they occurred on the night in question. Jackson argued that he did not intend to offer the challenged evidence to show that the officers owed and breached some additional duty to provide medical assistance.
The trial court considered the City's motion in limine and found that the evidence was admissible because it was relevant to pain and suffering and to the sequence of events. However, the trial court specifically stated that if the evidence was offered to prove the City was culpable in not providing medical treatment, then the evidence would be excluded. The trial court told the City that it would consider giving a limiting instruction to the jurors, which would inform them that the evidence regarding the officers' failure to provide Jackson with medical assistance was only relevant to the issues of pain and suffering or the sequence of events on the night in question and was not relevant to the issue of the officers' duty or culpability. The City did not draft or propose a limiting instruction.
When Jackson's attorney asked Officer Anderson at trial about the failure to unhandcuff Jackson or provide him with medical assistance, the City did not object. Further, the City did not object when Anderson answered that the officers had a duty to provide medical assistance. Finally, the City did not object when Jackson's attorney in closing argument referred to the officers' failure to unhandcuff Jackson. Thus, the trial court's denial of the City's motion in limine is not an issue which has been preserved for appeal. Moreover, when Jackson's attorney asked questions about the officers' failure to provide medical assistance, the City did not object. Thus, the trial court never had an opportunity to determine whether Jackson's attorney had committed error by questioning Anderson about an issue which the trial court had admitted on limited grounds. Since this issue was not presented or considered by the trial court, it will not be considered for the first time on appeal. This issue fails.
V. DAMAGES
The jury awarded Jackson $158,500 in total damages. Specifically, the jury awarded Jackson $8,500 in economic damages (medical expenses) and $150,000 in noneconomic damages, with $100,000 of that amount designated as damages for pain and suffering. The City challenges the damages, claiming they are excessive. There are three sub-issues which will be discussed as they become relevant.
A. Partially paid medical bills
During direct examination, Jackson testified about the amount of his medical bills. During cross-examination, the City's attorney questioned Jackson about the fact that he had not paid the full amount of the bills. The City did not state the actual amount of the bills which was still due and owing. Instead, the City confirmed that Jackson had paid a lesser amount than what was actually due and that this lesser amount was indicated on the billing. The three bills themselves were then admitted into evidence.
The first bill lists the amount due as $6,146.86 and the amount "due from patient" as $6,021.54, indicating that Jackson only paid $125.32 of this bill. The second bill lists an amount due of $339.50, with a handwritten note indicating that Jackson paid only $136.50, leaving an amount of $203. Finally, the third bill lists an amount due of $1,700, with a handwritten note indicating that Jackson only paid $1,194.50, leaving an amount of $505.50. It appears that Jackson's medical expenses to date totalled $8,186.36. However, Jackson only paid $1,456.32 of these medical bills. Some of these payments may have been made by the Kansas Crime Victims Fund. The jury awarded Jackson $8,500 in damages for his past and future medical expenses.
The City filed a motion for remittitur. The City claims that it should only be required to pay damages to Jackson in the amount that Jackson himself actually paid toward the bills. However, there is no evidence in the record that the hospital has settled for less than the amount due or has written off the remaining portion of the bills. The Crime Victims Fund may serve a lien on Jackson's attorney to recover money the Fund paid for Jackson's medical expenses from the damage award Jackson will receive.
"When a verdict is challenged . . . as being contrary to the evidence, it is not the function of this court to weigh the evidence. . . . If the evidence, with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the prevailing party, supports the verdict, it will not be disturbed on appeal." Cerretti v. Flint Hills Rural Electric Co-op Ass'n, 251 Kan. 347, 361-62, 837 P.2d 330 (1992).
In this case there is no evidence that any of the amounts remaining due on the medical bills have been written off by the medical providers. The City stipulated to the admission of the medical bills without any limitation on that admission. The City did not offer any evidence from the medical providers to indicate that the remaining amounts due on the bills have been written off. When all the evidence and reasonable inferences therefrom are considered in the light most favorable to Jackson, it appears that Jackson still owes the full amount of the medical bills. The law does not require that Jackson's damages for medical expenses be reduced to the amount he actually paid since no evidence indicates the amount still owing on the bills have been written off by the medical providers. Instead, the evidence indicates that Jackson is still responsible to pay the full amount of the bills. This sub-issue fails.
B. Damages Statement
After Jackson filed this action, the City requested that he file a statement of monetary damages pursuant to Supreme Court Rule 118 (1996 Kan. Ct. R. Annot. 148). Jackson filed such a statement, indicating that he sought damages in the amount of $200,000. Jackson apportioned this requested amount in the following manner: $10,000 for current and future medical expenses; $100,000 for permanent scarring; and $90,000 for pain, suffering, and mental anguish. Jackson has never sought to amend these requested amounts. At the conclusion of the trial, the jury awarded Jackson $100,000 in damages for pain and suffering, $10,000 more than the $90,000 Jackson requested for pain and suffering in his damages statement. The total amount of the damages awarded by the jury was $158,500, almost $50,000 less than the total amount of damages requested in the damages statement--$200,000. The City contends that Jackson should be limited to the amount of pain and suffering damages that he requested--$90,000--and that the excess $10,000 should be deducted from Jackson's pain and suffering award. This issue was not raised at the time the verdict was read, at the time the motion for a new trial was heard, or at any other time until this appeal.
"'[A] point not presented to the trial court will not be considered for the first time on appeal.'" Hephner v. Traders Ins. Co., 254 Kan. 226, 231, 864 P.2d 674 (1993); accord Sharp v. State, 245 Kan. 749, 753, 783 P.2d 343 (1989), cert. denied 498 U.S. 822 (1990) (a legal theory not presented to trial court may not be raised for the first time on appeal). This issue of whether the pain and suffering damages should be reduced to the exact amount of pain and suffering requested in the damages statement, even though the total amount of damages awarded was below the total requested amount, was not presented to the trial court and will not be considered for the first time on appeal. This issue fails.
C. Excessive Damages
The jury awarded Jackson a total of $158,500--$8,500 in economic damages (medical expenses) and $150,000 in noneconomic damages, $100,000 of which included damages for pain and suffering. After this award was handed down, the City filed a motion for new trial and/or remittitur in which it claimed that the damage award was excessive under the circumstances of the case. The City asked the court to reduce the damage award to $50,000. The trial court refused to order a new trial or grant a remittitur. In so holding, the trial court stated:
"I can just imagine what the jurors must have felt when the plaintiff described his throat being stapled shut. I know what I felt when he described it. We have a case here that was within perhaps millimeters of a person's death. I can imagine what the jury must have thought about the psychological pressure that was exerted on the plaintiff. I know what I would have thought if I were he and watching the blood flow out and wondering whether I was going to survive another five minutes.
"When you get to the question of remittitur, I have to consider a lot more than just whether I thought the [verdict] was too high. I did not anticipate that the [verdict] would be that high to be quite honest about it. That doesn't mean it shocks my conscience or it's without basis, because very often I miss the boat on what the jury is going to award. Sometimes I'm surprised how low it is, and sometimes I am surprised how high it is. Very seldom I can say that it is a product of passion [or prejudice] . . . ."
In arguing that the damages were excessive, the City cites to Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 352, 789 P.2d 541 (1990), overruled in part on other grounds Bair v. Peck, 248 Kan. 824, 844, 811 P.2d 1176 (1991), which discusses noneconomic damages and lists factors that may be considered by a jury in awarding such damages. Applying these factors to this case, the City points out that Jackson was unemployed and thus did not lose time from work, his stay in the hospital was only a day, and the expenses amounted to $8,186.34. After initial recuperation, Jackson indicated that he could do everything he could before the incident except play basketball. Further, the scar on Jackson's neck has improved tremendously. Finally, the injury only occurred after Jackson beat up his girlfriend so that the police had to be called and he was arrested. Moreover, Jackson's injuries were exacerbated when his nephew shot him in the face a year after this injury occurred.
On the other hand, Jackson alleges that the jury award was not excessive. He points out that he had his throat cut from ear to ear while he was handcuffed. He then flopped around on the ground, watching his blood run down the street. The doctors sewed Jackson's neck muscles back together and then stapled his skin back together. The jury heard the testimony of Jackson when he described how he felt after he was injured. The jury saw the pictures of Jackson's wound. The jury observed Jackson's scar. There was no medical testimony offered by the City to indicate that the wound was not as bad as Jackson testified it was.
"'Where a charge of excessive verdict is based on passion or prejudice of the jury but is supported solely by the size of the verdict, the trial court will not be reversed for not ordering a new trial, and no remittitur will be awarded unless the amount of the verdict in light of the evidence shocks the conscience of the appellate court. Where the alleged passion or prejudice of the jury is not shown by definite proof, but depends for support solely on the size of the verdict, the award will be upheld unless it shocks the conscience of the court. There is no simple, symmetrical pattern or design for determining whether a verdict is sufficient or insufficient, since each case must stand on its own facts.'" Thompson v. KFB Ins. Co., 252 Kan. 1010, 1031-32, 850 P.2d 773 (1993) (quoting Leiker v. Gafford, 245 Kan. 325, Syl. ¶ 10, 778 P.2d 823 [1989]).
The jury verdict does not shock the conscience of the court. This issue fails.
VI. MOTION FOR SUMMARY JUDGMENT
Prior to trial, the City filed a motion for summary judgment. At a hearing on the motion, the parties agreed that there were no controverted facts. Both parties also agreed that there is a duty on the City and its agents to control the acts of third parties against persons being held in custody under certain circumstances. The City argued that summary judgment should be granted in its favor because, as a matter of law, those certain circumstances implicating a duty did not exist in this case.
The trial court found, based upon the uncontroverted facts, that the officers owed a duty to Jackson to act reasonably as a matter of law. The court ruled that the jury would need to determine whether the officers breached such duty. Thus, the trial court denied the City's motion for summary judgment. In so holding, the trial court stated:
"It seems to me the point involved in this motion is . . . did either of those officers know of the necessity or opportunity for exercising reasonable care there or should they have, that's the whole issue in this motion and I think that under the uncontroverted facts presented here, and that's all I can go on in this motion, that they should have known that, they should have been on guard. There was a possibility or it was foreseeable there could be a confrontation between these two people, No. 1. They answered a call on a domestic disturbance, they were investigating it. One of the individuals had blood on them. No charges had been filed. They didn't know who the suspect was, who the attacker was, who, quote, the victim was, at least, under the facts I have in front of me here, and they got these two people that obviously had been at each other and on top of that, after they were separated, you got a situation where one of them approached the other one and was told to get back, so I think they were on notice that something could have occurred here in the way of an altercation and because of that there is a duty here for the officers to act reasonably.
"Now, whether they breached that duty is something the jury is going to have to decide. Did they act reasonably under these circumstances? That's the whole question here for the jury and it seems to me, I asked the question earlier, what's the jury to decide. It seems to me after reflecting on this some more there's a lot for the jury to decide. Did they act reasonably under these circumstances? And it seems to me whether they acted reasonably depends upon what they see as the foreseeability here of something happening. It's a matter of degree."
At this point, the City challenged the trial court's view of the uncontroverted facts. The City pointed out that Jackson was arrested for the battery of Davis. Thus, the City argued, the officers properly treated Davis as a victim and could not have foreseen that she would become an attacker. As such, the City claimed that the officers had no duty to protect Jackson from Davis. The trial court responded:
"Regardless of who was arrested or charged, I don't think that matters. The point was that they were at each other