Kennedy, et al v. Town of Billerica, et al

Filing 920100713

Opinion

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var WPFootnote1 = '                   The district court dismissed a number of plaintiffs\'\
claims against defendants in the first trial on summary judgment,\
ruling that these claims were either outside the November 5, 2001\
statute of limitations or supported by insufficient evidence to\
state a claim. Among those claims the court ruled as outside the\
statute of limitations were plaintiffs\' loss of consortium claims,\
including those made by the Kennedy children. See Kennedy v. Town\
of Billerica (Kennedy I), 502 F. Supp. 2d 150, 160 (D. Mass. 2007).\
              The court also granted defendants\' motion for a directed\
verdict following the close of evidence on all claims against\
Officer Conway, virtually all claims against Officer Casey, and\
almost all claims Michelle, Brian Sr., and Mitchell made arising\
from a November 9, 2001 incident (the "Masone incident").\
'

var WPFootnote2 = '                   The jury also found for Dylan on one IIED claim but\
awarded no damages; the district court granted defendants judgment\
on this claim. See Kennedy v. Town of Billerica (Kennedy IV), No.\
04-cv-12357, slip op. at 2 (D. Mass. Dec. 10, 2007). \
'

var WPFootnote3 = '                   On May 10, 2007, defendants filed a post-verdict motion\
for judgment as a matter of law or a new trial, and on August 21,\
2007, the district court rejected all of defendants\' arguments on\
the merits. See Kennedy III, No. 04-cv-12357, slip op. at 1-7\
(Aug. 21, 2007). Plaintiffs did not file any post-verdict motions\
for reconsideration of any issues from the first trial, including\
the claims they now assert are a basis for a new trial. \
'

var WPFootnote4 = '                   Plaintiffs initially proceeded against an additional\
fourteen officers in the second trial but later agreed to dismissal\
with prejudice of all claims against these officers. See Kennedy\
v. Town of Billerica (Kennedy II), No. 04-cv-12357, slip op. at 1\
& n.1 (D. Mass. Aug. 15, 2007) (order granting in part and denying\
in part defendants\' motion for summary judgment). The district\
court also granted summary judgment to defendants Officers Howe,\
Munn, Rhonstock, and Devito on all claims, and on certain claims\
against Officers Parker and Nestor. See id. at 1-15. Plaintiffs\
do not appeal any of these claims. \
'

var WPFootnote5 = '                   Mitchell also testified on cross-examination that he had\
been to court in an earlier case in which he had been criminally\
charged, but not arrested, and then acquitted of beating a car\
windshield. Plaintiffs claimed that this incident was malicious\
prosecution, but the district court directed a verdict for\
defendants on this claim. For the reasons we discuss below, there\
was no error in this ruling.\
'

var WPFootnote6 = '                   We accordingly do not examine the "wanton and reckless"\
portion of the instruction.\
'

var WPFootnote7 = '                   Plaintiffs claim defendants\' objections to the\
instruction were waived because defendants failed to offer a jury\
instruction before deliberations began. But the claimed error here\
is not that the district court failed to provide the jury with an\
essential instruction; it is that when the jury asked for further\
instructions, the district court provided an erroneous instruction\
on the law. Defense counsel timely objected to that instruction. \
See 9C Charles A. Wright & Arthur R. Miller, Federal Practice and\
Procedure § 2553, at 72-73 & n.39 (3d ed. 2008). Counsel also\
timely provided a supplemental instruction at the court\'s\
invitation; the district court rejected it. \
'

var WPFootnote8 = '                   Our conclusion on this state law claim is independent of\
our holding that Officer Tsoukalas is entitled to a new trial on\
Mitchell\'s § 1983 false arrest claim. Even assuming arguendo that\
a properly instructed jury could find that Officer Tsoukalas\
arrested Mitchell without probable cause, and even viewing the\
evidence in Mitchell\'s favor, Mitchell\'s asserted emotional harms\
do not make out an IIED claim.\
'

var WPFootnote9 = '                   The other elements are "(1) that the actor intended to\
inflict emotional distress or that he knew or should have known\
that emotional distress was the likely result of his conduct ...;\
(2) that the conduct was extreme and outrageous, was beyond all\
possible bounds of decency and was utterly intolerable in a\
civilized community," and "(3) that the actions of the defendant\
were the cause of the plaintiff\'s distress." Howell v. Enter.\
Publ\'g Co., LLC, 920 N.E.2d 1, 28 (Mass. 2010) (quoting Agis v.\
Howard Johnson Co., 355 N.E.2d 315, 318-19 (Mass. 1976)) (internal\
quotation marks omitted).\
'

var WPFootnote10 = '                   We bypass whether Chief Rosa\'s alleged conduct was\
"extreme and outrageous" and "beyond all possible bounds of\
decency," Howell, 920 N.E.2d at 28, another required element of an\
IIED claim that defendants say was not satisfied here. \
'

var WPFootnote11 = '                   The district court concluded that the Town could be held\
liable for free-standing incidents only in a post-verdict motion\
denying defendants judgment as a matter of law, and even then it\
recognized that "neither side thoroughly discussed this claim\
during closing arguments." See Kennedy III, slip op. at 4-7.\
Articulation of this issue in a post-verdict ruling is too late for\
defendants to have had an adequate chance to counter the claim at\
trial. \
'

var WPFootnote12 = '                   It merely held that defendants were not entitled to\
judgment because the Massachusetts Tort Claims Act (MTCA) generally\
recognizes the tort of supervisory negligence and that the evidence\
that various unspecified Billerica officers harassed plaintiffs as\
a general practice over the course of a decade was sufficient to\
support the claim. See Kennedy III, slip op. at 3-7. \
'

var WPFootnote13 = '                   Our conclusion is further supported by the fact that, as\
defendants argue, plaintiffs never framed negligent supervision as\
a free-standing claim that could confer independent liability on\
the Town based on events that occurred well outside the three-year\
statute of limitations. In their presentment letter, their\
complaint, their arguments and submissions at trial, and in their\
proposed jury instructions, plaintiffs never argued that the Town\
could be held liable for supervisory negligence in the absence of\
specified individual torts committed by named or unnamed individual\
officers. Indeed, plaintiffs suggested the opposite. Defense\
counsel\'s colloquy with the district court regarding jury\
instructions appeared to confirm defendants\' position that the Town\
had to be linked to individual constitutional or state law torts to\
be liable on either Monell or supervisory negligence claims. And\
the jury instructions were ambiguous. \
              Moreover, plaintiffs did not point to any incidents within the\
three-year statute of limitations that were not attributable to\
individual defendants and could have provided a viable basis for\
supervisory liability. \
'

var WPFootnote14 = '                   Defendants\' motion before the district court requested\
judgment as a matter of law or, in the alternative, a new trial, \
and the district court denied both remedies on these claims in its\
opinion. See Kennedy V, slip op. at 1-2, 10. On appeal,\
defendants only request judgment in their favor on these claims;\
they have waived their appeal of the district court\'s denial of a\
new trial. \
'

var WPFootnote15 = '                   We do not decide whether Brian Jr.\'s asserted emotional\
harms of not being able to sleep alone and being afraid for a\
period of months that his mother would be taken away were "severe"\
given the emotional susceptibility of a five-year-old. Other\
required IIED elements are plainly absent. \
'

var WPFootnote16 = '                   Plaintiffs assert on appeal that Officers Nestor and\
Conners lied about altering the complaint application and both\
intended to have Michelle arrested. No evidence at trial supports\
these assertions.\
'

var WPFootnote17 = '                   The incident began when Michelle, her husband Brian Sr.,\
and two friends began loading skateboard ramps--which they said\
they had permission to take--in a wooded area behind the local\
Boys\' Club. Officer Parker said he received a call reporting a\
suspected drug deal at the location, identified the skateboard\
ramps as those used in a police recreational league, and asked that\
the ramps be put back. \
              As Brian Sr. and the other friends left, Michelle was swearing\
at Officer Parker. The assault allegedly occurred when no one else\
was around. Michelle called then-Officer Dean Royston from her car\
during the alleged assault, and exited her car when Royston\
arrived. The incident ended when Royston told Michelle to leave.\
'

var WPFootnote18 = '                   There may be relevant defenses or privileges available to\
police officers under other provisions of Massachusetts law, for\
instance to use reasonable force to effect an arrest. Defendants,\
however, solely argued that Officer Parker could not be liable for\
the tort of assault because shouting and kicking a car generally do\
not rise to the level of assault. We reject that position in\
relation to the facts of this particular case, viewed in the light\
most favorable to the jury verdict.\
'

var WPFootnote19 = '                   This court has left open the possibility that severe\
"verbal harassment and intimidation could violate due process."\
Cruz-Erazo v. Rivera-Montanez, 212 F.3d 617, 623 (1st Cir. 2000).\
Engaging in a mutual shouting match in which both parties hurled\
profanities at the other would simply not meet this standard even\
if we were to assume arguendo that the theory was viable. Id. at\
623-24 (holding that even more severe verbal harassment, including\
alleged death threats by police officers, did not shock the\
conscience); see also McConkie v. Nichols, 446 F.3d 258, 261-62\
(1st Cir. 2006) (surveying cases).\
'

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