Rosado v. Deters, 5 F.3d 119 (5th Cir. 1993)

EMILIO M. GARZA, Circuit Judge:

The parents (“plaintiffs”) of the decedent, Alberto Luis Rosado-Santos, brought the underlying 42 U.S.C. § 1983 (1988) action, claiming that law enforcement officials violated the decedent’s substantive due process rights by engaging in a dangerous high-speed chase and establishing a roadblock. The plaintiffs also brought a diversity survival and wrongful death action, pursuant to La.Civ.Code Ann. arts. 2315, 2315.1, 2315.2 (West Supp.1993). After a jury trial, the district court dismissed all of the plaintiffs’ claims with prejudice. Finding no merit to any of the plaintiffs’ issues on appeal, we ■ affirm.

I

On July 27, 1988, C.J. Deters, a Louisiana state trooper, observed the decedent leaving the parking lot of the Pussycat Lounge aboard a motorcycle. After observing the decedent violate various traffic laws, Deters activated his siren and lights in an attempt to get the decedent to pull over. When the decedent sped away, Deters gave chase. Deters then radioed for assistance from local law enforcement officials. Officer Benton of the City of DeRidder Police Department responded to the call by setting up a roadblock with his vehicle at the intersection of U.S. Highway 171 and La. Highway 3226.

Deters continued to chase the decedent on Highway 171, through the towns of Pickering and Rosepine, for a distance of about thirteen miles and at speeds ranging from 80 to 110 miles an hour. The chase ended when the decedent hit the left rear of Benton’s parked vehicle.1 The decedent was thrown

clear of his motorcycle and later died from his injuries.

The plaintiffs filed a § 1983 suit against Deters, Benton, and the City of DeRidder, claiming that the high-speed pursuit of the decedent and the establishment of the roadblock amounted to gross negligence and excessive use of force. The plaintiffs also filed a survival and wrongful death action under Louisiana law.2 See La.Civ.Code Ann. arts. 2315, 2315.1, 2315.2. Deters filed a motion for summary judgment on all of the plaintiffs’ claims against him, which the district court granted.3 The action against Benton and the City of DeRidder proceeded to trial.4

At trial, the plaintiffs called Ken Katsaris, an expert on police procedures and training, to give his opinion regarding whether Benton backed his car into the decedent. The district court refused to admit this opinion testimony, based on its conclusion that Katsaris was not qualified as an accident reconstruc-tionist. See Fed.R.Evid. 702 (concerning qualifications of expert witnesses).

The jury deliberated for approximately one and one-half hours before announcing to the district court that it was deadlocked. The jury was then given a special interrogatory form, which instructed the jury to answer interrogatory no. 1 first. That interrogatory asked: “Do you find by a preponderance of the evidence that at the time of impact, Robert L. Benton was backing up his [pjolice car into the path of Alberto Rosado’s motorcycle?” In the event of a “No” answer, the jury was to “go to the end of the form, sign it, and return it to the Marshall [sic].”

The jury answered interrogatory no. 1 in the negative. Instead of proceeding to the end of the form, however, the jury also answered interrogatory no. 14, which asked: “Do you find, by a preponderance of the evidence, that Albert Rosado was also negligent and that his negligence was a legal cause of his death?” This interrogatory was also answered in the negative. Finding no irreconcilable conflict in the jury’s answers, the district court entered judgment for Benton and the City ofsDeRidder.

The plaintiffs raise the following issues on appeal: (a) that the court erred in granting summary judgment for Deters, the state trooper who pursued the decedent; (b) that the court abused its discretion by refusing to allow Katsaris to give his opinion on whether Benton backed his car into the decedent; and (c) that the jury’s answers to the special interrogatories were irreconcilable.

II

A

The plaintiffs first contend that the district court erred in granting summary judgment for Deters, on both their federal and state law causes of action. We review the district court’s grant of a summary judgment motion de novo. Davis v. Illinois Cent. R.R., 921 F.2d 616, 617-18 (5th Cir.1991). Summary judgment is appropriate if the record discloses “that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the initial burden of identifying those portions of the pleadings and discovery on file, together with any affidavits, which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). Once the movant carries its burden, the burden shifts to the non-movant to show that summary judgment should not be granted. Id. at 324-25, 106 S.Ct. at 2553-54. While we must “review the facts drawing all inferences most favorable to the party opposing the motion,” Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir.1986), that party may not rest upon mere allegations or denials in its pleadings, but must set forth specific facts showing the existence of a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986).

The plaintiffs based their § 1983 action against Deters in part upon their allegation that the roadblock amounted to the excessive use of force, in violation of the decedent’s substantive due process rights.5 Where an excessive force claim “arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens the right ‘to be secure in their persons ... against unreasonable ... seizures’ of the person.” Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989). In Brower v. County of Inyo, 489 U.S. 593, 597, 109 S.Ct. 1378, 1382, 103 L.Ed.2d 628 (1989), the Supreme Court held that a fleeing suspect is “seized” under the Fourth Amendment when he is stopped by an intentionally placed roadblock.6 The plaintiffs, however, have not pointed to evidence in the summary judgment record suggesting that Deters knew of, or participated in, establishing the roadblock. The record shows that although Deters radioed for assistance from local law enforcement officials, he first knew of the roadblock when he saw Benton’s vehicle, moments before the decedent crashed into it. Because Deters’s pursuit alone cannot constitute a seizure,7 we hold that Deters’s conduct did not implicate the Fourth Amendment. Accordingly, summary judgment on the plaintiffs’ federal cause of action based upon Deters’s alleged excessive force was proper.

In their survival and wrongful death action under Louisiana law, the plaintiffs again claimed that Deters used excessive force in attempting to arrest the decedent.8 Article 2315 provides that “[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” La.Civ.Code Ann. art. 2315. “ ‘Fault’ as used in Article 2315 encompasses more than negligence. It is the breach of a duty owed by one party to another under

particular circumstances of a given case.” Williams v. Louisiana Mach. Co., Inc., 387 So.2d 8, 11 (La.App. 3d Cir.1980). Because Deter’s conduct occurred during the course of an attempted arrest, the applicable standard of care is one of reasonable force. See La.Code Crim.Proc.Ann. art. 220 (West 1991) (“The person making a lawful arrest may use reasonable force to effect the arrest....”); see also Kyle v. City of New Orleans, 353 So.2d 969, 973 (La.1977) (stating that-“[w]hether the force used is reasonable depends upon the totality of the facts and circumstances in each case”).- In opposing summary judgment on their excessive force claim, the plaintiffs argued that “Deters’s speed prior to the collision and his distance from Rosado are material facts that are in dispute.” Record on Appeal vol. 2, at 196j. We disagree. The summary judgment record shows that the only force used in attempting to arrest the decedent was the roadblock. As we have already pointed out, the record demonstrates that Deters did not know of the roadblock until moments before the collision. Consequently, the issues of Deters’s speed and distance from the decedent — considered in isolation from the roadblock — are not material to the ultimate issue of excessive force. Because the plaintiffs have not set forth specific facts demonstrating a material issue regarding the reasonableness of the force exerted by Deters, we hold that summary judgment on the plaintiffs’ state action based upon Deters’s alleged excessive force was proper.

B

The plaintiffs next contend that the district court abused its discretion by not admitting Katsaris’s expert testimony. “A trial court’s ruling regarding admissibility of expert testimony is protected by an ambit of discretion and must be sustained unless manifestly erroneous.” Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1109 (5th Cir.1991). Rule 702 of the Federal Rules of Evidence provides:

The district court refused to allow Katsaris to give his opinion on whether Benton backed his car into the decedent because the court concluded that Katsaris was not qualified as an accident reconstructiohist. The plaintiffs correctly concede that Katsaris’s opinion on the location of Benton’s car before and after the collision falls within the realm of accident reconstruction. They argue, however, that the court erred in concluding that Katsaris was not qualified to testify in this area. We disagree. As the district court pointed out, Katsaris was last qualified as an accident reconstructionist in 1965. Since that time, Katsaris had not taken any refresher courses. Katsaris himself admitted that he could not independently establish the necessary physical and mathematical bases for his opinion. Based on these facts evincing Kat-saris’s lack of scientific, technical, o.r other specialized knowledge in the area of accident reconstruction, we find no abuse of discretion in the district court’s refusal to allow Katsar-is to offer his expert opinion on whether Benton backed his car into the decedent.

C

Lastly, the plaintiffs contend that the jury’s answers to the special interrogatories were irreconcilable, and therefore that the district court was not authorized to enter judgment for Benton and the City of DeRidder. “If answers to jury interrogatories are in irreconcilable conflict, then the judge has no authority to enter judgment based upon

those answers.” Brunner v. Maritime Overseas Corp., 779 F.2d 296, 297 (5th Cir.), cert. denied, 476 U.S. 1115, 106 S.Ct. 1971, 90 L.Ed.2d 655 (1986); see also Fugitt v. Jones, 549 F.2d 1001, 1005 (5th Cir.1977). The plaintiffs have not shown, and we cannot discern, how the jury’s answers to the special interrogatories were in irreconcilable conflict. At most, the jury’s answers indicate that Benton did not back his car into the decedent, either intentionally or negligently, and that the decedent was not himself negligent. These answers do not conflict as they reflect the jury’s analysis of two independent and distinct matters: Benton’s conduct and the decedent’s conduct. Stated differently, the jury’s finding that Benton did not back into the decedent did not preclude a finding that the decedent was not himself negligent.

The plaintiffs maintain that as a matter of law the jury had to assign fault to someone. We disagree. To render a verdict for the defendants, the jury need only have found that Benton did not back his car into the decedent.10 Moreover,, as the City of DeRid-der points out, the jury may well have thought that the decedent’s attempt to elude Benton’s car constituted intentional or willful conduct. “Where there is a view of the case that makes the jury’s answers to special interrogatories consistent, they must be resolved that way.” Harville v. Anchor-Wate Co., 663 F.2d 598, 604 (5th Cir.1981). Because the jury’s answers to the special interrogatories were not in irreconcilable conflict, we hold that the district court had the authority to enter judgment for Benton and the City of DeRidder.

Ill

For the reasons set forth above, we AFFIRM.