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District of Columbia v. Chinn12/31/2003
case, sufficient evidence to submit the question of negligence as well." Holder, supra, at 742. In reviewing claims, neither the trial court nor the appellate court is bound by a plaintiff's characterization of the action as alleging negligence and/or assault and battery. Tinker, supra at 63; White, supra at 162; Maddox, supra, at 765. Therefore, the court must look to the particular facts and circumstances of the case to properly characterize the action. There are cases where the plaintiff does not allege or prove a distinct negligence ground. Maddox, Sabir, Tinker, supra. Such claims will fail because the plaintiff does not articulate elements of a negligent action and may not bootstrap from the battery proof alone, as one may not commit a negligent assault. Sabir, supra at 452 (quoting 1 F. HARPER & F. JAMES, THE LAW OF TORTS, § 3.52 at 3:19 (3d ed. 1996)).
However, the Maddox and Sabir line of cases, as evidenced by their language, do not preclude separate causes of action where the plaintiff has pled and established separate and distinct claims. Each of the cited cases in the White line that have upheld submitting both negligence and battery counts to a jury have common characteristics. Each involves the use of deadly force. Each invokes a police regulation establishing a standard of care with respect thereto that is arguably distinct from the excessive force standard. Each involves alternate scenarios in at least one of which a distinct act of negligence, a misperception of fact, may have played a part in the decision to fire. Each involves a negligent act that precedes the application of the relevant force of resort to firearms, i.e., prior to the pulling of the trigger.
C.
None of these features that appear in the White line of cases is present in the case before us. To the contrary, the allegations made and the evidence presented here are most similar to our cases where the plaintiff failed to make a separate and distinct claim for negligence apart from the battery allegations. Chinn's complaint alleged that the defendants committed negligence by violating D.C. Code § 4-176 in using "unnecessary and wanton severity while arresting Plaintiff" and they "breached their duty as they were negligent in their excessive use of force" and "knowingly and maliciously acted in manner that would cause injury to Plaintiff's person." These allegations, like those in Maddox, Sabir, and Tinker, neither establish a claim separate and distinct from the alleged battery, nor demonstrate the essential elements of a negligence claim. The allegations do not reflect negligence, but rather an intentional tort with a conclusory allegation of negligence. See Sabir, supra at 452.
The crux of Chinn's claim is that the officers deliberately inflicted excessive force upon him, and the evidence he presented at trial was that officers continuously assaulted him without provocation. Chinn did not argue that the officers mistakenly or negligently thought Chinn was armed; Chinn did not allege that the officers misperceived him as a threat. The negligence claim, under these circumstances, should not have gone to the jury as no separate and distinct cause or theory of negligence was presented before the court.
Otherwise put, if, in a case involving the intentional use of force by police officers, a negligence count is to be submitted to a jury, that negligence must be distinctly pled and based upon at least one factual scenario that presents an aspect of negligence apart from the use of excessive force itself and violative of a distinct standard of care. It is tautological to speak of the applicable standard of care as being the duty not to use excessive force; that is the precise
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