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Adam v. City of Fremont12/3/1998
the court submitted the special interrogatories to the jury. In response, the jury identified 13 ways in which they believed the police officers negligently handled the incident. The jury listed the factual bases of its negligence findings as follows: (1) "Lacked control of the officers"; (2) "Insufficient communications"; (3) "Lack of information"; (4) "Did not respond to suicide call as such. It was an assault response rather than assist"; (5) "Did not follow Fremont Police Dep[artment] procedures for dealing with a critical incident"; (6) "Delayed calling in medical help"; (7) "Decision to use dog prior to using a negotiator"; (8) "Allowed untrained officer to attempt negotiation"; (9) "Did not evacuate all the neighbors"; (10) "Did not maintain the psychological sanctity of the family members at the scene"; (11) "The use of [seven] armed officers left no option but force"; (12) "Once location of Pat[rick] was known, did not back down to allow calming of situation"; and (13) "Yelling and shouting at Pat[rick] did not allow for calm."
On April 19, 1996, the court entered a judgment in favor of Johnette for $2,841,603 and in favor of Gina for $1,125,000, resulting in a total judgment against appellants of $3,966,603 plus costs.
On May 7, 1996, appellants timely moved for a judgment notwithstanding the verdict and/or for new trial contending: (1) the police officers owed no legal duty to Patrick or his family; (2) the police officers and the city were immune from liability; (3) insufficient evidence was introduced to support the verdict; and (4) the awarded damages were excessive. On June 11, 1996, the court denied the motion for a judgment notwithstanding the verdict, but granted the motion for a new trial in part on the ground that emotional distress damages awarded to Johnette and Gina were excessive. The new trial was conditioned on Johnette and Gina's refusal to accept a reduction in the emotional distress damages of $750,000 and $375,000 respectively. Respondents refused to consent to this reduction.
On June 25, 1996, appellants filed this timely appeal from the April 19, 1996, judgment. Respondents have cross-appealed from the June 11, 1996, order granting a new trial on emotional distress damages.
III. Discussion
A. Overview
1. Standard of Review
Appellants contend that the jury's verdict must be reversed because the police officers on the scene owed no legal duty to Patrick or his family to act with reasonable care in order to prevent Patrick's suicide. Appellants raised this issue of "duty" in their motion for non-suit and/or directed verdict at the close of trial. Thus, we review the trial court to determine whether it erred in denying the requested non-suit or directed verdict.
"A defendant is entitled to non-suit if the trial court determines that, as a matter of law, the evidence presented by plaintiff is insufficient to permit a jury to find in his favor. [Citation.] `In determining whether plaintiff's evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give "to the plaintiff['s] evidence all the value to which it is legally entitled, . . . indulging every legitimate inference which may be drawn from the evidence in plaintiff' favor." ' [Citation.] A mere "scintilla of evidence" does not create a conflict for the jury's resolution; `there must be substantial evidence to create the necessary conflict.' [Citation.]" (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291 (Nally), quoting 7 Witkin, Cal. Proced
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