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Collins v. Hertenstein9/3/2002
Opinion Vote: AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
Lowenstein and Ulrich, JJ., concur.
Opinion:
In this wrongful death action, Valerie Collins sued three Kansas City police officers who shot and killed her 13-year-old son, Timothy Wilson, Jr. A jury awarded $500,000 to her in actual damages against officers William Hertenstein, Brian Keeney and Troy Thomas, $100,000 in damages for aggravating circumstances against Hertenstein, and $50,000 each in damages for aggravating circumstances against Keeney and Thomas. The circuit court, however, granted Thomas' motion for judgment notwithstanding the verdict, finding that Thomas did not cause or contribute to cause Wilson's death.
Collins appeals, and the officers cross-appeal. We affirm the circuit court's judgment in part. We reverse that part of the judgment granting Thomas' motion for judgment notwithstanding the verdict and that part awarding damages for aggravating circumstances. We remand for a new trial on the issue of damages for aggravating circumstances only. The lawsuit grew out of an investigation of a traffic violation on November 9, 1998, by Hertenstein and another Kansas City police officer, Lorenzo Simmons. The officers were working off-duty as security guards when they saw a pickup, driven by Wilson, "fishtail" at high speed. With its tires squealing, the pickup nearly hit parked cars. Hertenstein and Simmons pursued the pickup in their marked police car. Hertenstein and Simmons radioed the dispatcher that they were chasing the pickup, and two other police vehicles joined the chase. Officers Keeney and Perry Wilkerson were in one car, and officers Thomas and Lee Malek were in the other. At times during the chase, Wilson's pickup nearly hit the officers' cars. The chase ended seven minutes later at 18th Street and Brighton in Kansas City where Wilson drove his pickup into a vacant lot. The pickup's wheels bogged in mud. Trying to free the truck, Wilson gunned the pickup's engine, but the truck's spinning tires remained bogged. Wilkerson walked to the pickup's passenger side, banged on the window, and tried to open the door. It was locked. Keeney walked to the same door and banged on the window. Wilkerson and Keeney yelled for Wilson to turn off the engine and to raise his hands. Thomas went to the driver's side of the truck, banged on the window with a flashlight, and yelled at Wilson. Malek stood behind the pickup. Simmons remained in his police car.
Although Hertenstein testified that he was at the passenger window banging on the window and yelling at Wilson, Keeney testified that only he and Wilkerson were banging on the passenger window and that he did not remember seeing Hertenstein at the window. Wilson ignored the officers' commands and continued trying to free the pickup from the mud. The pickup's tires gained traction at one point and lurched backward. The truck hit Simmons and Hertenstein's police car. Simmons saw the pickup coming and jumped out of the patrol car before the pickup hit it. The pickup's side view mirror struck Thomas' arm and knocked him to the ground. The pickup's door and passenger mirror hit Wilkerson's shoulder and knocked him back several feet. As the pickup moved back towards Simmons' patrol car, Hertenstein ran to the truck's passenger window. After hitting Simmons' patrol car, the pickup moved forward. Keeney dived from the pickup's path of travel to avoid getting hit by it. Hertenstein fired his pistol at Wilson five times, and four of the bullets wounded Wilson. Hertenstein testified that he shot Wilson because he saw Wilson reach beneath a coat. He said that he feared that Wilson was reaching for a gun. Hertenstein, however, did not mention this
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