872 F.2d 1292
\n13 Fed.R.Serv.3d 960
\nJoseph ERWIN, Brenda Erwin, Katrina Erwin, Debra Laier,
\nJames Laier, Rowena Oclon, Joseph Oclon, Clifton
\nOclon, and Matthew Oclon,
\nPlaintiffs-Appellants, Cross-Appellees,
\nv.
\nCOUNTY OF MANITOWOC; Larry Conrad, Timothy O’Hearn, Richard
\nTisler, and Richard Roe, all individually and in their
\nofficial capacities as officers of the County of Manitowoc;
\nand Tom Kocourek, individually and as Sheriff of the County
\nof Manitowoc, Defendants-Appellees,
\nand
\nTimothy O’Hearn, Cross-Appellant.
\nNos. 88-1211, 88-1263.
\nUnited States Court of Appeals,
\nSeventh Circuit.
\nArgued Sept. 16, 1988.
\nDecided April 19, 1989.
\nI.
\nStephen J. Eisenberg, Eisenberg Law Office, S.C., Madison, Wis., for plaintiffs-appellants, crossappellees.
\nJonathan M. Menn, Menn Nelson Sharratt Teetaert & Beisenstein, Ltd., Appleton, Wis., for defendantsappellees.
\nBefore CUMMINGS, POSNER, and MANION, Circuit Judges.
\nMANION, Circuit Judge.
\nPlaintiffs sued defendants under 42 U.S.C. Sec. 1983 for civil rights violations and for damages
\nresulting from a police search of a private residence. Plaintiffs claim that several deputies violated
\ntheir Fourth Amendment rights by engaging in an unreasonable search and seizure and using
\nexcessive force and also violated the Fourteenth Amendment by depriving plaintiffs of property
\nwithout due process of law. They also claim that the County inadequately trained its officers in
\nexecuting search warrants of private residences. The jury awarded plaintiffs compensatory and
\npunitive damages amounting to $85,000, most of which the district court vacated on the
\ndefendants’ motion for judgment notwithstanding the verdict. We reverse the district court and
\nremand for a new trial.
\n1
\nA Manitowoc County, Wisconsin circuit judge issued a search warrant to the County Sheriff’s
\nDepartment authorizing a search of the residence of Joseph and Brenda Erwin to locate four stolen
\npressure cookers and four ounces of marijuana. On August 30, 1984, the county sheriff’s Special
\nOperations Squad (SOS), consisting of Sergeant Richard Tisler, Officer Timothy O’Hearn and
\nOfficer John Felber, executed the search warrant. Upon entering the residence, Sergeant Tisler
\nserved the warrant upon Brenda Erwin. The other two officers moved quickly through the house to
\nsecure it. In that process, Officer O’Hearn encountered one of several of the families’ dogs, a
\nGerman shepherd, and shot and killed it, allegedly in self-defense.
\n2
\nWhen the officers entered the house they were wearing camouflage uniforms. The record does
\nnot disclose who or what the officers expected to find (other than the pressure cookers and the
\nmarijuana). But the only people present when the officers entered were Brenda Erwin, her sister,
\n3
\n\u00ab up
\nRowena Oclon, several young children including Brenda Erwin’s daughter, Debra Laier, and the
\nchildren’s elderly grandfather. After the house was “secured” the dog was dead, the children and the
\nadults were screaming, and the officers found no pressure cooker or marijuana.
\nThe plaintiffs make several allegations that the defendants strongly dispute. Plaintiffs claim that
\nthe officers barged in without knocking or warning, that one of the officers (probably Felber, since
\ndeceased) hit Brenda Erwin in the mouth with his gun butt, and that Officer O’Hearn needlessly
\nshot and killed the dog during the confrontation. The defendants, on the other hand, claim they
\nknocked before entering and issued the normal warning, and deny that anyone hit Brenda Erwin.
\nOfficer O’Hearn admitted that he shot the dog, but he claims the dog was attacking him and he shot
\nin self-defense.
\n4
\nAt trial all the adults present in the household and the surviving officers testified. In addition to
\ncomplaining about the methods and the results of the search itself, the plaintiffs also alleged that
\nManitowoc County was grossly negligent in failing to train its deputy sheriffs in the manner in
\nwhich search warrants must be executed.
\n5
\nAt trial there was psychiatric testimony for plaintiffs by Dr. Robert Gale concerning damage
\nincurred by Brenda Erwin and Debra Laier. Also, plaintiffs’ expert witness Robert di Grazia testified
\nthat the training of the SOS had been insufficient. Conflicting testimony was taken from Officer
\nO’Hearn and from a veterinarian concerning the manner in which O’Hearn had shot the dog.
\n6
\nAs damages, the Erwins claimed the value of the dog. In addition, however, they relied on the
\nevidence of severe psychological damage to the various plaintiffs as a result of the method of entry,
\nthe conduct of the search, and the impact as a result of the killing of the dog. At the conclusion of
\ntrial, the judge prepared a form of jury verdict containing a number of questions and, depending on
\nthe answers to those questions, several other questions regarding damages. (The complete verdict
\nform and the answers provided by the jury are set forth in the appendix to this opinion.) The issues
\non appeal focus on the form of verdict, the conflicting questions in that form, and the seemingly
\ninconsistent answers and award of damages by the jury.
\n7
\nThe jury first found that the officers of the Manitowoc County Sheriff’s Department did not act
\nunreasonably in the manner in which they carried out the search of the Erwin home. However, the
\njury did find that Timothy O’Hearn acted unreasonably in shooting the dog. Although they found
\nthe manner of the search reasonable, the jury nevertheless found that Manitowoc County was
\ngrossly negligent in failing to train its deputy sheriffs in the manner in which search warrants may
\nbe executed. They also found that there was an affirmative link between the failure to properly train
\nthe deputy sheriffs and the injuries that were sustained by the plaintiffs.1
\n8
\nThe jury concluded that Brenda Erwin and Debra Laier suffered injuries as a result of the failure
\nof Manitowoc County to properly train its deputy sheriffs. The jury awarded Joseph and Brenda
\nErwin $600 as compensation for the loss of their dog. As compensation for failure of the County to
\nproperly train its deputy sheriffs, the jury awarded Brenda Erwin $35,000 and Debra Laier
\n$10,000. In addition, the jury awarded punitive damages to only Brenda Erwin and Debra Laier as
\nfollows: against Detective Larry Conrad $15,000; against Deputy Timothy O’Hearn $5,000; against
\nDeputy Richard Tisler $5,000; and against Manitowoc County Sheriff Tom Kocourek $15,000.
\n9
\nThe defendants moved for, among other things, judgment notwithstanding the verdict, and for a
\nnew trial. The judge denied the motion for a new trial. He also denied the j.n.o.v. with regard to the
\n$600 damages for the loss of the dog and the $5,000 punitive damages against Timothy O’Hearn,
\nwho had shot the dog. However, because of the inconsistencies between the jury’s answers to the
\nquestions on the verdict form and the damages awarded, the district court granted the remaining
\ndefendants’ motion j.n.o.v., thus vacating the balance of the damages awarded. Plaintiffs appeal
\nfrom the district court’s partial grant of the j.n.o.v., and Officer O’Hearn appeals from the denial of
\nthe motion as it applied to damages against him.
\n10
\nThe district court considered only the defendants’ motions for a new trial and for j.n.o.v., viewing
\nthe evidence as a whole in the light most favorable to the nonmoving party-plaintiffs. The primary
\nproblem with the verdict as reviewed by the district court was the award of punitive damages
\nagainst Conrad, Tisler, and Kocourek, against whom no liability had been found. Because the jury
\nhad found that the officers did not act unreasonably in searching the Erwin home, the district court
\nlikewise found it impossible to sustain the jury determination that the County had been grossly
\nnegligent in failing to train its officers. The trial judge sustained only the damages in the amount of
\n$5,600 against O’Hearn, denying him a new trial.
\n11
\n\u00ab up
\nII.
\nAt issue in this case is whether the district court properly granted the defendants’ motion for
\nj.n.o.v. In reviewing a district court’s decision to grant j.n.o.v. under Fed.R.Civ.P. 50(b), we (as did
\nthe trial judge) examine the evidence in a light most favorable to the prevailing parties. Selle v.
\nGibb, 741 F.2d 896, 900 (7th Cir.1984). To determine whether there is substantial evidence to
\nsupport the verdict, we need to examine whether the evidence presented, when combined with all
\nreasonable inferences which may derive from it, was sufficient to support the verdict. Steffen v.
\nMeridian Life Insurance Co., 859 F.2d 534, 546 (7th Cir.1988).
\n12
\n“This evidence must provide a sufficient basis from which the jury could have reasonably reached
\na verdict without speculation or drawing unreasonable inferences which conflict with the
\nundisputed facts.” Selle, 741 F.2d at 900. Our review in this case is complicated by the seeming
\ninconsistencies between the jury’s findings and its award of damages. The evidence and the verdict
\nwhich flowed from the evidence support several distinct yet conflicting scenarios revolving around
\nQuestions 4, 8, and 9 of the jury form. (We again note that each question and answer in the form of
\nverdict is completely set out in the appendix following this opinion.)
\n13
\nThe amended complaint of January 6, 1987, alleging a violation of 42 U.S.C. Secs. 1983 and 1988,
\ncharged defendants with conducting an unreasonable search and seizure in violation of the Fourth
\nAmendment, the use of excessive force in violation of the Fourth Amendment, and deprivation of
\nproperty without due process of law in violation of the Fourteenth Amendment. The complaint also
\nalleges that Manitowoc County had inadequately trained its officers. In Sherrod v. Berry, 856 F.2d
\n802 (7th Cir.1988) (en banc), we applied an “objective reasonableness” standard to Fourth
\nAmendment excessive force in arrest claims. The objective reasonableness standard demands that a
\ntrier of fact weigh the totality of the facts and circumstances known to an officer at the time of his
\nactions in determining whether those actions were objectively reasonable. Id. at 804-05. In
\napplying this standard we will examine the facts as presented and attempt to reconcile them with
\nthe jury’s verdict. First, however, we will set out the conflicting scenarios as seen by the plaintiffsappellants, the defendants-appellees and the district court.
\n14
\n15 Appellants’ scenario.
\nFrom the appellants’ point of view the jurors, when addressing Question 4, properly found
\nManitowoc County negligent because they reasonably could have believed O’Hearn acted
\nunreasonably due to his poor training by the County, thus causing the plaintiffs’ injuries. Appellants
\njustify the combined award of $45,000 punitive damages (Question 8) by emphasizing that Brenda
\nErwin and Debra Laier were the only two plaintiffs of whom there had been undisputed expert
\npsychiatric testimony regarding emotional injuries resulting from the search of the home.
\nAppellants argue that the evidence supports the jury’s conclusion that Brenda Erwin and Debra
\nLaier suffered injuries as a result of O’Hearn’s shooting of the dog, because the shooting was the
\nresult of grossly negligent training by the Sheriff’s Department. Appellants also argue that the
\nofficers whom the jury charged with punitive damages under verdict Question 9 could have been
\nfound liable for a part they had played in failing to adequately train the Special Operations Squad
\nand thus causing the deprivation suffered by the Erwins in O’Hearn’s shooting of the dog.
\n16
\nFinally, appellants claim that since liability for compensatory (unlike punitive) damages is joint
\nand several, the jury should not have been asked to assess compensatory damages against each
\ndefendant individually.2 Appellants assert this legal principle even though the jury concluded that
\nO’Hearn acted unreasonably when he shot the dog but at the same time concluded that the sheriff’s
\ndepartment (presumably the other deputies) did not act unreasonably in the search.
\n17
\n18 Appellees’ scenario.
\nAppellees contend that even if the County was grossly negligent for failing to train its deputy
\nsheriffs, the training (or lack thereof) did not damage Brenda Erwin and Debra Laier because the
\njury found that the search was reasonable. Erwin and Laier claim that O’Hearn’s shooting the dog
\ncaused emotional damages that are separate from any effect of a reasonable search. But appellees
\nclaim that there was no damage testimony that separated the search from the shooting; thus, the
\npunitive damages assessed against Conrad, Kocourek, and Tisler were unfounded. Since the jury
\ndid not attribute the training failure to any of them, the punitive damage awards were speculative
\nand improper.
\n19
\n20 The district court’s scenario.
\n\u00ab up
\nIII.
\nThe judge divided his decision on the motion for j.n.o.v. He upheld the $600 in compensatory
\ndamages and the $5,000 in punitive damages awarded against O’Hearn. He thought it was a close
\nquestion on the law of qualified immunity and on the facts of whether O’Hearn acted with malice or
\ncallous disregard of the plaintiff’s rights when he shot the dog or whether he shot in self-defense.
\nBut he did sustain that part of the verdict.
\n21
\nThe district court set aside the $35,000 award to Brenda Erwin and the $10,000 award to Debra
\nLaier. He also set aside the punitive damages in their favor and against Larry Conrad ($15,000),
\nRichard Tisler ($5,000), and Tom Kocourek ($15,000). He cited several problems that focused on
\nthe inconsistency in the jury verdict. Most glaring, he thought, was the jury’s award of punitive
\ndamages against Conrad, Tisler and Kocourek when no liability was found against them personally.
\nSince the jury found that the search was reasonable and that no officer intentionally struck Brenda
\nErwin, the three men could not have been responsible for any compensatory damage. The trial
\njudge stated that “Even if–as the plaintiffs seem to argue–the jury felt that Conrad, Tisler, and
\nKocourek were the officers who were affected by Manitowoc County’s inadequate training and thus
\ncaused the injuries resulting from what the jury saw as inadequate training, the punitive damages
\nmust fall.” He concluded that the County, not the officers, could be the only responsible party, and a
\ncounty cannot be held liable for punitive damages. Also, since the jury found that this particular
\nsearch was reasonable, the plaintiffs lack standing to raise their claims. Since the search was
\nreasonable, there was no link between the inadequate training and the damage. It would take a
\nplaintiff who was subjected to an improper search to raise the claim.
\n22
\n23 Appeal of Officer O’Hearn.
\nOfficer O’Hearn claims that if he participates in a reasonable search he cannot be personally
\nliable for damages if he reasonably believed that his safety was being threatened when he shot and
\nkilled a dog. He stresses the trial court considered it a very close issue. But it was a fact question
\nthat the jury and then the trial judge found against him, and we will not disturb that conclusion.
\n24
\nAppellants meanwhile attempt to extend O’Hearn’s liability to the other officers and to the
\nCounty. Appellants assert that the four deputies (including O’Hearn) against whom punitive
\ndamages were awarded were found liable for the part they had played in failing to adequately train
\nthe Special Operations Squad. Appellants suggest the trial court never should have permitted jurors
\nto assess compensatory damages against individual defendants because all the defendants could
\nhave been jointly liable for all of the damages. Appellants also argue that the County is liable
\nbecause the jury could have believed O’Hearn, due to poor County training, injured them by
\nshooting the dog.
\n25
\nWhile there may be conflicting interpretations of the evidence presented, the real source of the
\nproblem here is the confusing form of verdict. It is against the background of that incoherent
\nverdict form that we examine the law in this case.
\n26
\n27 Liability of Manitowoc County.
\nBoth sides cite Monell, et al. v. Dept. of Social Services of the City of New York, 436 U.S. 658, 98
\nS.Ct. 2018, 56 L.Ed.2d 611 (1978), and City of Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427,
\n85 L.Ed.2d 791 (1985) in support of their claims and denials. Monell permitted a plaintiff to sue a
\nlocal government for damages if the government had established a policy or permitted a custom
\ndepriving a person of a constitutional right. Tuttle essentially followed Monell with some
\nlimitations as noted below. The Supreme Court held on February 28, 1989, that under certain
\ncircumstances a municipality can be liable under Sec. 1983 for constitutional violations resulting
\nfrom its failure to train municipal employees. Canton v. Harris, — U.S. —-, —-, 109 S.Ct. 1197,
\n1200, 103 L.Ed.2d 412 (1989). The confusing verdict in this case makes it difficult to apply the
\nappropriate law since arguably these authorities will support both the appellants’ and the appellees’
\nconflicting interpretations of the verdict.
\n28
\nProper application of the Monell teachings is closely keyed to the litigants’ fact-pattern. As
\nJustice Brennan explained,Monell allows a person to sue a local government for damages where a
\nlocal government establishes a policy or permits a custom which deprives a person of a
\nconstitutional right. 436 U.S. at 690-91, 98 S.Ct. at 2035-36. The suit against Manitowoc County
\ndemonstrates the importance of clear jury conclusions of whether challenged actions (such as this
\nsearch or shooting and the training beforehand) in fact represented a “policy” or official “decision.”
\n29
\n\u00ab up
\nUnder Monell, the jury must be able to conclude that the challenged actions resulted from at least
\nan informal governmental “custom.”
\nTuttle requires at least an affirmative link between the governmental policy and the specific
\nconstitutional violation alleged. The jury instructions in Tuttle had allowed jurors to infer from a
\nsingle incident a nebulous “policy” of “inadequate training” on the part of a municipal corporation.
\nThe Tuttle jury instructions likewise allowed the jury to infer that such “policy” had caused that
\nincident. The Supreme Court reversed, finding that such approaches circumvented Monell ‘s
\nlimitations altogether. It held that proof of a single instance of unconstitutional activity was
\ninsufficient to attach liability under Monell, absent proof that the incident had been caused by an
\nexisting, unconstitutional municipal policy attributable to a municipal policymaker. Tuttle, 471 U.S.
\nat 823-24, 105 S.Ct. at 2436.
\n30
\nOnly in limited circumstances can the allegation of a “failure to train” provide the basis for Sec.
\n1983 liability. Harris, — U.S. at —-, 109 S.Ct. at 1204. The inadequacy of police training serves as a
\nSec. 1983 liability basis only if the failure to train amounts to “deliberate indifference” to the rights
\nof persons with whom the police deal. The training failure must evidence this “deliberate
\nindifference” to the rights of the citizenry for the shortcoming to properly constitute an actionable
\nSec. 1983 “policy or custom.”
\n31
\nThe liability only attaches if a deliberate choice to embark upon a course of action is made by
\npolicymakers from among various alternatives. For the Sec. 1983 failure in training to constitute
\nactionable “policy,” this failure to train must reflect deliberate or conscious choice. Id. A Sec. 1983
\nclaim based on the due process clause of the Fourteenth Amendment does not translate every tort
\ncommitted by a state actor into a constitutional wrong. DeShaney v. Winnebago County
\nDepartment of Social Services, — U.S. —-, —-, 109 S.Ct. 998, 1007, 103 L.Ed.2d 249 (1989). It
\nmay happen that in view of the duties assigned to specific officers the need for enhanced training is
\nso obvious, and the inadequacy of training is so likely to result in the violation of constitutional
\nrights, that a jury could reasonably attribute to the policymakers a deliberate indifference to those
\ntraining needs. Harris, — U.S. at —-, 109 S.Ct. at 1204-05. It is in such cases that the failure to
\noffer proper training constitutes a policy for which a defendant is liable when improper training
\nactually imposes injury. Id. at —-, 109 S.Ct. at 1205.
\n32
\nMonell ‘s rule that a city is not liable under Sec. 1983 unless a municipal policy causes a
\nconstitutional deprivation will not be satisfied by merely alleging that the existing training program
\nfor a class of employees, such as police officers, represents a policy for which the city is responsible.
\nThat much may be true. The issue in a case like this one, however, is whether that training program
\nis adequate; and if it is not, the question becomes whether such inadequate training can justifiably
\nbe said to represent “city policy.”
\n33
\n34 Id. at —-, 109 S.Ct. at 1205 (footnote omitted).
\nA particular officer’s unsatisfactory training cannot alone suffice to attach liability to the state. An
\nofficer’s faults (e.g., O’Hearn’s) may result from factors other than the deficient training program.
\nId. at —-, 109 S.Ct. at 1205-06. Nor can plaintiffs prevail merely by proving that an accident or
\ninjury could have been avoided had an officer received enhanced training forestalling the particular
\nconduct resulting in the injury. Even adequately trained officers sometimes err, and such error says
\nlittle about their training program or the legal basis for liability. After all, in almost every instance
\nwhere a Sec. 1983 plaintiff has suffered a violation of his constitutional rights by a government
\nemployee the plaintiff can point to something the government could have done to protect against
\nthat unfortunate incident. This is why claims alleging a constitutional deprivation due to failure to
\nprovide training to employees are cognizable under Sec. 1983, and yield liability, only if that
\ndefendant’s failure to train demonstrates its “deliberate indifference” to the constitutional rights of
\nits residents. Id.
\n35
\nBefore applying the principles of Monell,, Tuttle or Harris, we must first clearly understand the
\nfacts. But the findings in the verdict form impede this necessary understanding. Given these
\nfindings we can only speculate whether the training was inadequate, let alone whether such training
\nwas a “policy” or accepted “custom.” Cf. Parker v. District of Columbia, 850 F.2d 708, 712
\n(D.C.Cir.1988). Thus we are unable at this point to review whether the County could have been
\nliable.
\n36
\nHere, plaintiffs must prove that Manitowoc County’s allegedly deficient training program actually
\ncaused the claimed constitutional violation. Would the wrong have been avoided had the officers
\nbeen properly trained? Prediction of how a properly trained officer would have performed under
\n37
\n\u00ab up
\nthese circumstances will be difficult for the trier of fact. An officer must make on-the-spot
\njudgments under pressure. Even properly trained officers can err and might react much like a
\nsimilarly challenged, untrained officer. But difficult as that determination may be, as the Supreme
\nCourt notes, the “judge and jury, doing their respective jobs, will be adequate to the task.” Harris,
\n— U.S. at —-, 109 S.Ct. at 1206.
\n38 Liability of Conrad, Kocourek, and Tisler.
\nThe jury awarded punitive damages to Brenda Erwin and Debra Laier as punishment to Conrad,
\nKocourek, and Tisler for their conduct. The trial court questioned the punitive damages because the
\njury found no compensatory damages against the three defendants who were charged. A jury may
\naward punitive damages against persons in Sec. 1983 actions when it finds conduct motivated by
\nevil intent or involving reckless or callous indifference to the federally-protected rights of others.
\nSmith v. Wade, 461 U.S. 30, 45-49, 103 S.Ct. 1625, 1634-37, 75 L.Ed.2d 632 (1983).
\n39
\nThe question remains whether punitive damages can be awarded when the jury has awarded no
\ncompensatory or at least nominal damages to a particular plaintiff. Punitive damages (as awarded
\nhere) are applicable even in the absence of actual damages, Sahagian v. Dickey, 827 F.2d 90, 100
\n(7th Cir.1987); McKinley v. Trattles, 732 F.2d 1320, 1326 (7th Cir.1984), despite local law to the
\ncontrary. Wilson v. Taylor, 658 F.2d 1021, 1033 (5th Cir.1981). Although state law may not allow
\npunitive damages without a compensatory award, under federal law, when a jury finds a
\nconstitutional violation under a Sec. 1983 claim, it may award punitive damages even when it does
\nnot award compensatory damages. The scope of punitive damages in Sec. 1983 actions is governed
\nby the “federal common law of damages” which imposes uniformity when enforcing the Civil Rights
\nActs. Lenard v. Argento, 699 F.2d 874, 897 (7th Cir.1983); Basista v. Weir, 340 F.2d 74, 87 (3d
\nCir.1965).
\n40
\nThe judge further questioned the punitive damages award against Conrad, Kocourek and Tisler
\nbecause it appeared that the jury imputed to them the County’s liability for their inadequate
\ntraining. He reasoned that in such a situation the County, not the officers, would be the responsible
\nparty. On a custom and policy claim a governmental body such as the County cannot be held liable
\nunder 42 U.S.C. Sec. 1983 for punitive damages. City of Newport v. Fact Concerts, Inc., 453 U.S.
\n247, 271, 101 S.Ct. 2748, 2762, 69 L.Ed.2d 616 (1981). Presumably the punitive damages were
\ntargeted at the individual officers, but the facts as we know them do not disclose how officers who
\nconducted a reasonable search deserve punitive damages for having been grossly and negligently
\ntrained.
\n41
\nBecause clear factual findings are required in order to review punitive damages under the law, we
\nare unable to conclude the punitive damages issue at this juncture. Even if we had a complete set of
\nfacts, it is not clear under Wade to what extent the individual officers might be held liable for
\ndamages. Likewise, it is not clear under Monell and Harris what facts would be necessary to prove
\ndamages under the custom and policy claim. From what we can ascertain, given the reasonable
\nsearch, there is no apparent evidence of a constitutional violation by these officers that merits
\npunitive damages. But these uncertainties are best resolved by the district court.
\n42
\nThese factual gaps are too wide to allow this court to attempt to construe what the jury intended
\nand for what reasons. While a new trial may be more than any of the litigants desire, it appears to
\nbe the only way this confusing result can be reconciled in a way that will be fair to all concerned.
\n43
\n44 Liability of O’Hearn.
\nO’Hearn presents us with a difficult question. He claims the verdict finding that the overall
\nsearch was reasonable conflicts with the finding that he acted unreasonably in shooting the dog. He
\nencountered the dog in the process of the “reasonable” search, and he shot it when, as he saw it, his
\nsafety was threatened. Although the issue of self-defense is a question of fact, one we normally leave
\nto the jury, whether the two findings by the jury are in conflict is a question of law. We could isolate
\nthe shooting from the search and presume the jury decided the matter independently.3 Given the
\ntotal verdict and the confused result, the fairest outcome for all parties is to provide a new trial on
\nall issues, especially now that the Supreme Court in Canton v. Harris has elaborated on the
\nstandard for liability resulting from the County’s failure to adequately train. O’Hearn should be
\nincluded in a trial under these new guidelines. Also, to isolate the O’Hearn incident and subtract it
\nfrom the new trial may completely change the complexion of the case for all other parties and
\nclaims, to no one’s particular advantage. We conclude the best, if not the perfect, result is to start
\nfrom the beginning and ensure that all parties have their proper day in court.
\n45
\n\u00ab up
\nIV.
\nAPPENDIX
\nVERDICT
\nPart A–Claims
\n46 New Trial.
\nGiven all of the foregoing and upon our review of the record, it is clear to this court that the jury
\nconcluded that liability properly attached to some defendants. Nevertheless, the confusing jury
\nform and the conflicting answers do not sufficiently disclose the jury’s intent. While a new trial
\nproducing clear findings of fact is the fair alternative in this case, we still need to examine whether
\nit is procedurally appropriate as well.
\n47
\nDefendants below moved for a j.n.o.v. pursuant to Fed.R.Civ.P. 50(b). The defense also moved for
\na new trial. Must plaintiffs, who at first had apparently won but whose trial judge has granted a
\ndefense motion for j.n.o.v., themselves move for a new trial before this court can grant it?
\n48
\nIf a trial court has granted a motion for j.n.o.v. but no motion for new trial has been made, and
\nthe appellate court as here reverses the entry of j.n.o.v., the court of appeals may order a new trial.
\nDerr v. Safeway Stores, Inc., 404 F.2d 634, 639-40 (10th Cir.1968); C. Wright & A. Miller, supra,
\nSec. 2540, at 614; J. Moore & J. Lucas, 5A Moore’s Federal Practice Sec. 50.14, at 50-106 (2d
\ned.1988). Too, when a trial judge has denied a motion for j.n.o.v. and the appellate court affirms
\nthis denial, the court of appeals can then order a new trial upon its own motion. Peterman v.
\nChicago, Rock Island & Pacific R.R., 516 F.2d 328, 333-34 (8th Cir.1975); J. Moore & J. Lucas,
\nsupra, at Sec. 50.15, 50-108 n. 2.
\n49
\nIn Crossman v. Trans World Airlines, 777 F.2d 1271, 1276-77 (7th Cir.1985), this court reversed
\nthe denial of a motion for j.n.o.v. vacating a jury award of damages. We then considered whether
\nany grounds existed that could warrant a new trial. We reviewed the trial record even though the
\nplaintiff Crossman had failed to request a new trial in the event this court reversed the district
\ncourt. In that case we chose not to order a new trial.
\n50
\nIn this case the plaintiffs also won. Although the plaintiffs did not conditionally move for a new
\ntrial in the event the j.n.o.v. was granted, at oral argument plaintiffs’ counsel assured this court that
\na new trial was certainly preferable to our affirming the j.n.o.v. We thus conclude that the law of
\nthis circuit permits a new trial under these circumstances.
\n51
\n52 We therefore remand for a new trial for all parties concerned. Circuit Rule 36 shall apply.
\n53 REMANDED.
\n54 The verdict form presented by the trial court provided in relevant part:
\n55 (1) Did the officers of the Manitowoc County Sheriff’s Department act
\n56 unreasonably in the manner in which they carried out the search of the
\n57 Erwin home?
\nAnswer:
\nyes
\n——————–
\nX no
\n——————–
\n58
\n59 (2) Did Deputy Timothy O’Hearn act unreasonably in shooting the dog?
\nAnswer:
\nX yes
\n60
\n\u00ab up
\nPart B–Damages
\n——————– no
\n——————–
\n61 (3) Did a Manitowoc officer intentionally strike Brenda Erwin in the face?
\nAnswer:
\nyes
\n——————–
\nX no
\n——————–
\n62
\n63 (4) (a) Have the plaintiffs proved that Manitowoc County was grossly
\n64 negligent in failing to train its deputy sheriffs in the manner in
\n65 which search warrants may be executed?
\nAnswer:
\nX yes
\n—————– no
\n—————–
\n66
\n67 (b) If you have answered “yes” to question 4(a), then answer this
\n68 question: Have the plaintiffs proved that an affirmative link
\n69 exists between the failure to properly train its deputy sheriffs
\n70 and any injuries sustained by any of the plaintiffs?
\nAnswer:
\nX yes
\n—————– no
\n—————–
\n71
\n72 (c) If you have answered “yes” to question 4(b), then answer this
\n73 question: Which plaintiffs suffered injuries as a result of the
\n74 failure of Manitowoc County to properly train its deputy sheriffs?
\nBrenda Erwin
\n—————————————————–
\nDebra Laier
\n—————————————————–
\n—————————————————–
\n—————————————————–
\n—————————————————–
\n—————————————————–
\n—————————————————–
\n75
\n\u00ab up
\n76 You should only answer these questions if you have answered “yes” to one or
\n77 more of the following questions in Part A of this verdict: Questions 1, 2, 3,
\n78 or 4(b).
\n79 (5) If you have answered “yes” to question 1, then answer this question:
\n80 (a) Which officers acted unreasonably in carrying out the search?
\n(b) What sum of money should be awarded to the following plaintiffs who
\nyou find sustained damages as a result of the unreasonable search
\nto fairly and adequately compensate them for the violation of
\nrights found in question 1?
\nBrenda Erwin $_________
\nJoseph Erwin $_________
\nDebra Laier $_________
\nJames Laier $_________
\nKatrina Erwin $_________
\nRowena Oclon $_________
\nJoseph Oclon $_________
\nClifton Oclon $_________
\nMatthew Oclon $_________
\n(6) If you have answered “yes” to question 2, then answer this question: What
\nsum of money should be awarded to Joseph and Brenda Erwin to fairly and
\nadequately compensate them for the loss of their dog?
\n$600.00
\n81 (7) If you have answered “yes” to question 3, then answer this question:
\n82 (a) What officer struck Brenda Erwin in the face?
\n(b) What sum of money should be awarded to Brenda Erwin to fairly
\nand adequately compensate her for injuries she received from
\nbeing struck in the face?
\n$_______________
\n(8) If you answered “yes” to question 4(b), then answer this question: As to
\nthose plaintiffs that you have named in your answer to question 4(c),
\nwhat sum of money will fairly and reasonably compensate them for damages
\nsustained as a result of Manitowoc County’s grossly negligent training
\nof its deputy sheriffs?
\n$10,000 awarded to Debra Laier
\n$________________ awarded to _________________
\n$________________ awarded to _________________
\n$________________ awarded to _________________
\n$________________ awarded to _________________
\n$________________ awarded to _________________
\n$________________ awarded to _________________
\n(9) Answer this question only if you have found and awarded compensatory
\ndamages in any of your answers to questions 5, 6, 7, or 8.
\n(a) Should punitive damages be awarded to punish any of the
\nindividual defendants for their conduct?
\n\u00ab up
\nAnswer:
\nX yes
\n—————- no
\n—————-
\n(b) If you have answered “yes” to question 9(a), then answer this question: As
\nto what officers and as to what amounts should the punitive damages be
\nassessed?
\nAgainst Larry Conrad in the amount of $15,000
\nAgainst Timothy O’Hearn in the amount of $5,000
\nAgainst Richard Tisler in the amount of $5,000
\nAgainst Tom Kocourek in the amount of $15,000
\nAgainst __________________ in the amount of $____________
\nAgainst __________________ in the amount of $____________
\n(c) If you have awarded damages in question 9(b), to whom should those
\ndamages be awarded and to what amounts?
\nTo Brenda Erwin for $25,000
\nTo Debra Laier for $15,000
\nTo __________________ for $_________________
\nTo __________________ for $_________________
\nTo __________________ for $_________________
\nTo __________________ for $_________________
\nTo __________________ for $_________________
\nTo __________________ for $_________________
\nTo __________________ for $_________________
\nSharon A. Ramage
\nForeperson
\nDated: September 24, 1987
\nThe jury found that no Manitowoc officer had intentionally struck Brenda Erwin in the face 1
\nSee Bosco v. Serhant, 836 F.2d 271, 281 (7th Cir.1987) where we stated:
\nIn the case of a single injury the jury should be asked to determine the amount of the plaintiff’s loss, which
\nthen becomes a joint and several liability of the defendants who inflicted it … McKinnon v. City of Berwyn,
\n750 F.2d 1383, 1387 (7th Cir.1984). Only punitive damages should be assessed separately.
\n2
\nThe jury’s finding the County grossly negligent in training its deputies and then linking the poor training
\nto the plaintiff’s injuries makes it very difficult to separate the training from the jury’s conclusion that
\nO’Hearn acted unreasonably when he shot the dog
\n3
\nCC\u2205 | TRANSFORMED BY PUBLIC.RESOURCE.ORG<\/p>\n","protected":false},"excerpt":{"rendered":"
872 F.2d 1292 13 Fed.R.Serv.3d 960 Joseph ERWIN, Brenda Erwin, Katrina Erwin, Debra Laier, James Laier, Rowena Oclon, Joseph Oclon, Clifton Oclon, and Matthew Oclon, Plaintiffs-Appellants, Cross-Appellees, v. COUNTY OF MANITOWOC; Larry Conrad, Timothy O’Hearn, Richard Tisler, and Richard Roe, all individually and in their official capacities as officers of the County of Manitowoc; and […]<\/p>\n","protected":false},"author":230,"featured_media":0,"parent":0,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"footnotes":""},"_links":{"self":[{"href":"https:\/\/ntoacommand.pslms.org\/wp-json\/wp\/v2\/pages\/9567"}],"collection":[{"href":"https:\/\/ntoacommand.pslms.org\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/ntoacommand.pslms.org\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/ntoacommand.pslms.org\/wp-json\/wp\/v2\/users\/230"}],"replies":[{"embeddable":true,"href":"https:\/\/ntoacommand.pslms.org\/wp-json\/wp\/v2\/comments?post=9567"}],"version-history":[{"count":0,"href":"https:\/\/ntoacommand.pslms.org\/wp-json\/wp\/v2\/pages\/9567\/revisions"}],"wp:attachment":[{"href":"https:\/\/ntoacommand.pslms.org\/wp-json\/wp\/v2\/media?parent=9567"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}