The Estate of Jane Doe 202 v. City of North Charleston ( 2021 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The Estate of Jane Doe 202, by John Doe MM and John
Doe HS, each of whom holds power of attorney for Jane
Doe, Appellant,
v.
City of North Charleston; Leigh Anne McGowan,
individually, Charles Francis Wholleb, individually, and
Anthony M. Doxey, individually, Respondents.
Appellate Case No. 2017-002392
Appeal from Charleston County
Deadra L. Jefferson, Circuit Court Judge
Opinion No. 5821
Submitted May 15, 2020 – Filed May 19, 2021
AFFIRMED
Gregg E. Meyers, of Mt. Pleasant, for Appellant.
Sandra J. Senn and Christopher Thomas Dorsel, both of
Senn Legal, LLC, of Charleston, for Respondents.
HEWITT, J.: This is an appeal from a defense verdict in a case about whether
police officers violated the civil rights of "Jane Doe," a vulnerable adult. The first
issue is whether the trial court erred in directing a verdict on Jane Doe's claim that
the officers created the risk Jane Doe would be harmed when they arrested Jane
Doe's adult daughter and left Jane Doe unattended in her home. The other issue is
whether the trial court abused its discretion in handling the jury's second question
about the charges for liability under 42 U.S.C. § 1983 (2018).
We affirm. We hold the trial court's grant of a directed verdict was correct, as the
evidence did not rise to the level necessary for a claim that the police violated the
constitution when they left Jane Doe at her house. On the jury charges, the trial court
did not abuse its discretion when it repeated its earlier jury charges on liability and
declined to repeat its instructions on damages.
FACTS
Daughter moved into Jane Doe's home in 2012 after it became clear Jane Doe was
struggling to live alone. In 2013, Jane Doe was diagnosed with Alzheimer's disease
and dementia.
The City of North Charleston Police Department dispatched police officers to Jane
Doe's home one night in March 2014 after one of Jane Doe's neighbors reported a
potential domestic disturbance. The neighbor reported seeing Daughter banging on
the door and yelling for Jane Doe. The scene supposedly "seemed like a mess."
The first officer to arrive said no one was in Jane Doe's yard and no one answered
knocks on the front and back doors. Other things were out of sorts as well: there
was a pair of high heel shoes on the ground beside the driver's side door of the vehicle
parked in the driveway, the vehicle's interior dome light was on, there were wine
bottles in the back of the car, and a purse was on the ground in the backyard. The
officer could not recall whether the vehicle's driver's side door was open, but the
officer said the purse appeared to have fresh blood on it.
Other officers arrived, and they eventually determined an exigent entrance was
necessary to check on the welfare of the woman who had reportedly been yelling
outside the house. The officers did not have a warrant.
The officers met Jane Doe when they entered the house. They asked Jane Doe if she
needed medical attention. All three officers reported that Jane Doe gave no
indication in her response that she was suffering from dementia, was incapable of
caring for herself, or could not be left alone. Jane Doe told the officers that Daughter
was upstairs and led them to Daughter's room.
The parties disagree about what happened next. The officers said they found
Daughter asleep in her bed but on top of her covers, fully dressed, and with a large
red wine stain down the front of her shirt. They also said Daughter woke up and
spoke with the officers, who observed that she was unsteady on her feet and that she
declined medical assistance. They claimed that when the two male officers left the
bedroom to help gather Daughter's belongings, she began screaming at her mother
and flailing her arms, and she struck the remaining female officer. For her part,
Daughter claimed that a large figure woke her up in the middle of the night and
flipped her out of the bed. Daughter stated she believed she was about to be raped
and that she yelled for her mother to "stay out of it" while struggling with the figure.
Daughter was arrested for assaulting a police officer. Daughter claimed the officers
refused her request that she be allowed to call someone to look after Jane Doe. The
officers disputed this and said they did not recall Daughter ever telling them Jane
Doe had dementia, could not be left alone, or could not care for herself. Daughter
remained in jail overnight.
Jane Doe stayed in the home by herself until her brother came to check on her around
lunchtime the next day, shortly after learning about the situation. He said that Jane
Doe was "a wreck" but he was able to calm her down after fifteen or thirty minutes.
After that, he left Jane Doe at the house so he could get Daughter out of jail. When
Daughter returned home she discovered Jane Doe had been wearing a soiled diaper
for some time.
The police came to the residence again two days later, after an unattended Jane Doe
had a neighbor call police to report a suspicious vehicle in Jane Doe's driveway. The
responding officer determined the vehicle was actually Daughter's vehicle. Once
Jane Doe's family returned to the home, EMS was called and Jane Doe was
transported to the hospital.
Jane Doe was initially taken to the hospital because she had increasing levels of
confusion from being left alone on multiple occasions over a forty-eight hour period.
While at the hospital, Jane Doe was also diagnosed with a urinary tract infection,
and she stayed in the hospital for approximately two weeks.
Litigation, Trial, and Directed Verdict
Jane Doe brought this lawsuit against the City of North Charleston and the three
officers involved in Daughter's arrest. Her complaint alleged eleven different causes
of action.
Three claims went to trial: deprivation of civil rights by North Charleston; invasion
of privacy against North Charleston; and deprivation of civil rights by the responding
officers. The civil rights claims were brought pursuant to 42 U.S.C. § 1983.
A key dispute at trial was whether the officers knew or should have known Jane Doe
had diminished mental abilities and was unable to care for herself. Jane Doe's doctor
testified the officers likely would not have recognized that Jane Doe had dementia
unless they had been told. There was conflicting evidence on the point: as already
noted, the officers disputed Daughter's testimony that she insisted she be allowed to
contact someone to look after Jane Doe. A recording of the police dispatcher's
conversation captured the dispatcher mentioning over the radio that Jane Doe had
dementia. Still, the officer testified she did not hear the dispatcher mention
dementia, explaining she may have been focused on assessing the scene at that
moment rather than the radio.
At the close of all the evidence, the trial court directed a verdict on Jane Doe's
"state-created danger" theory of liability. The court gave several reasons for its
ruling, including that the officers could not be responsible for a danger (Jane Doe's
dementia) that already existed. Jane Doe's claims against North Charleston
proceeded to the jury, as did Jane Doe's claims that the individual officers violated
her civil rights by making a warrantless entry into her home.
Jury Charges
The trial court gave the following charge on nominal damages during the lengthy
jury instructions:
Ladies and gentlemen[,] if you return a verdict for the plaintiff
on a section 1983 claim but the plaintiff has failed to prove actual
or compensatory damages for her claim[,] then you must award
nominal damages of one dollar for that claim.
A person whose federal rights were violated is entitled to a
recognition of that violation even if he or she suffered no actual
injury. Nominal damages such as one dollar are designed to
acknowledge the depr[i]vation of a federal right even where you
find no actual injury occurred.
Later, at the jury's request, the trial court gave a second instruction covering the
elements of each cause of action. The court re-administered the entire section 1983
charge, including all of the charges on damages.
The jury submitted two additional notes to the trial court. The relevant part of the
final note stated: "For there to be a violation of a civil right, 4th Amendment, the
plaintiff must demonstrate through the preponderance of the evidence to be bodily
harm or injury or mental i.e. damages[?]"
The trial court believed the jury was confusing damages as an element of liability
under section 1983, insisting it was convinced the jury was asking whether Jane Doe
needed to prove bodily harm. After discussion, the court decided to reinstruct the
jury on the elements of a section 1983 claim, and not the various damages the jury
could award for a valid claim, to avoid further confusion. Jane Doe asked the court
to reinstruct the jury on nominal damages, but the court declined. The court said it
would reinstruct the jury on damages if the jury asked to be reinstructed on damages.
The jury returned a verdict in favor of North Charleston and the officers. The trial
court denied Jane Doe's motion for a new trial. This appeal followed.
ISSUES
1. Did the trial court err by granting a directed verdict on the "state-created danger"
portion of Jane Doe's civil rights claims?
2. Did the trial court err in declining to re-charge the jury on nominal damages?
STATE-CREATED DANGER
Jane Doe argues the trial court erred in directing a verdict on her claim that officers
violated her civil rights when they arrested Daughter, removed Daughter from the
house, and left Jane Doe home by herself. She claims the officers knew or should
have known Jane Doe suffered from dementia and that the officers' actions
unconstitutionally created a danger or increased the risk Jane Doe would be harmed.
The state-created danger doctrine arises from a line of U.S. Supreme Court cases
finding that the government does not have a duty to protect people from
privately-inflicted harm. A key case is DeShaney v. Winnebago County Department
of Social Services, where the guardian of a young child alleged a child protection
agency failed to respond to multiple child abuse complaints over an extended time
period and should have prevented a father from severely beating his son. 489 U.S.
189, 191–94 (1989). DeShaney is commonly understood to turn on the reasoning
that the constitution does not require the government to affirmatively protect citizens
from private harms. Erwin Chemerinsky, The State-Created Danger Doctrine, 23
Touro L. Rev. 1, 2–3 (2007). Instead, the government has limited responsibility for
a citizen's safety and well-being if the government takes a person into custody or
when "the government is responsible for creating the danger." Id. at 3 (citing
DeShaney, 489 U.S. at 199–200).
After DeShaney, courts around the country developed numerous "tests" for liability
under the state-created danger doctrine. See, e.g., Jones v. Reynolds, 438 F.3d 685,
690 (6th Cir. 2006); Hart v. City of Little Rock, 432 F.3d 801, 805 (8th Cir. 2005);
Mark v. Borough of Hatboro, 51 F.3d 1137, 1152 (3d Cir. 1995). These cases tend
to have tragic facts because recovering against the government requires a plaintiff to
carry a heavy burden. Pursuant to DeShaney and its progeny, there is no due process
violation unless a plaintiff shows a state actor engaged in reckless behavior or acted
with deliberate indifference. See Daniels v. Williams, 474 U.S. 327 (1986);
Davidson v. Cannon, 474 U.S. 344 (1986). Negligence and gross negligence are
insufficient. See Daniels, 474 U.S. at 327.
This court previously employed the Fourth Circuit's formulation that due process
does not require the government to affirmatively protect its citizen's rights; due
process is a negative prohibition designed to protect people from the State rather
than requiring the State to act. See Pack v. Associated Marine Insts., Inc., 362 S.C.
239, 248–49, 608 S.E.2d 134, 139–140 (Ct. App. 2004) (quoting Pinder v. Johnson,
54 F.3d 1169, 1174 (4th Cir. 1995)). More recently, the Fourth Circuit explained a
plaintiff must show "that the state actor created or increased the risk of private
danger, and did so directly through affirmative acts, not merely through inaction or
omission." Doe v. Rosa, 795 F.3d 429, 439 (4th Cir. 2015).1
Here, the trial court based its directed verdict, at least in part, on the fact that there
was no evidence the officers' actions allowed a third party to harm Jane Doe.
Although some jurisdictions require a third party "bad actor" to establish liability
1
Pinder reads DeShaney to require a "special relationship" between the state actor
and the plaintiff. Pinder, 54 F.3d at 1174–75. Doe appears to take a different view
and says that "[w]hen the state itself creates the dangerous situation that resulted in
a victim's injury, the absence of a custodial relationship may not be dispositive." 795
F.3d at 438 (quoting Pinder, 54 F.3d at 1177).
under the state-created danger doctrine, we were unable to find any precedent from
South Carolina or the Fourth Circuit establishing this requirement.
Still, we find the trial court appropriately granted the police officers a directed
verdict. See Rule 220, SCACR ("The appellate court may affirm any ruling, order,
decision or judgment upon any ground(s) appearing in the Record on Appeal."). The
police did not take Jane Doe into custody, place any restraints on her freedom, or
assume the responsibility of caring for her. At best, the testimony shows the officers
may have been negligent or grossly negligent, for when the facts are viewed in Jane
Doe's favor, the absolute most someone can say is that officers were told, either by
Daughter or by the dispatcher, Jane Doe had dementia before they left Jane Doe
home alone.
Nothing suggests the North Charleston officers knew a high probability of harm
would follow their actions. There is no evidence the police had any reason to think
Jane Doe was at risk of harming herself. Indeed, the circumstances and scene
suggested Jane Doe had been home alone before Daughter came home intoxicated.
The police had no reason to think Jane Doe was incapable of summoning help if she
encountered any danger. It is undisputed that Jane Doe responded to the officers'
questions and told them where to find Daughter.
We note that, as mentioned above, our analysis is controlled by the fact that
negligence and gross negligence are insufficient to move forward on a claim that
police action was so wanton that it amounts to a violation of due process. For these
reasons, we affirm the trial court's grant of directed verdict on Jane Doe's
"state-created danger" theory of liability.
JURY INSTRUCTION
Jane Doe also argues the trial court's refusal to re-charge the jury on nominal
damages was misleading and "distorted" the standard for liability under section
1983.
The standard of review on this issue is weighted heavily in favor of affirming. "An
appellate court will not reverse the trial court's decision regarding jury instructions
unless the trial court abused its discretion." State v. Lemire, 406 S.C. 558, 565, 753
S.E.2d 247, 251 (Ct. App. 2013) (quoting Clark v. Cantrell, 339 S.C. 369, 389, 529
S.E.2d 528, 539 (2000)). Also, "[w]hen the jury requests additional charges, it is
sufficient for the [trial] court to charge only the parts of the initial charge which are
necessary to answer the jury's request." The Winthrop Univ. Trs. for the State v.
Pickens Roofing & Sheet Metals, Inc., 418 S.C. 142, 165, 791 S.E.2d 152, 164 (Ct.
App. 2016) (quoting Rauch v. Zayas, 284 S.C. 594, 597, 327 S.E.2d 377, 378 (Ct.
App. 1985)). "Its failure to charge in greater detail is not error if the details were
fully covered in the original charge." Id. (quoting Rauch, 284 S.C. at 597, 327
S.E.2d at 378).
We cannot say the trial court abused its discretion when it perceived the jury to be
confusing the various types of available damages with the elements of a successful
1983 claim. The "injury" in a section 1983 case is the violation of the plaintiff's
rights. See Clark v. Link, 855 F.2d 156, 161 (4th Cir. 1988) (elements are that the
defendant acted under color of state law and deprived plaintiff of a
federally-protected right). To this end, the threshold question for liability was
whether the circumstances justified the officers' warrantless entry into Jane Doe's
home.
The jury's question was an awkwardly worded and confusing one: "For there to be
a violation of a civil right, 4th Amendment, the plaintiff must demonstrate through
the preponderance of the evidence to be bodily harm or injury or mental i.e.
damages[?]" The trial court interpreted the question as asking whether there had to
be bodily harm for there to be a legal "injury," and the court believed this indicated
the jury was confusing the concepts of an injury and damages. The court was
convinced that the jury did not need to hear the entire charge on section 1983 a third
time and the best way to answer the jury's question was to repeat the charges on
"liability" the court had given twice before.
The trial court could just as well have reached the conclusion the jury was asking
about damages and not liability. There is much force and appeal to the reasoning in
the dissent. Still, given that we believe both views of the jury's question are possible,
we believe the trial court did not abuse its discretion.
Again, we note precedent's instructions that it is sufficient for the trial court to
re-charge only that which is necessary to answer the jury's question and that failing
to re-charge in greater detail is not necessary when the original charge fully covered
the details. See Winthrop Univ. Trs., 418 S.C. at 165, 791 S.E.2d at 164 ("When the
jury requests additional charges, it is sufficient for the [trial] court to charge only the
parts of the initial charge which are necessary to answer the jury's request." (quoting
Rauch, 284 S.C. at 597, 327 S.E.2d at 378)); id. ("[The trial court's] failure to charge
in greater detail is not error if the details were fully covered in the original charge."
(quoting Rauch, 284 S.C. at 597, 327 S.E.2d at 378)). Jane Doe's arguments on
appeal do not challenge the sufficiency of the jury instructions on nominal damages,
but merely that they were not given for a third time, which precedent states is not an
error.
CONCLUSION
For the foregoing reasons, the trial court's judgment is
AFFIRMED.2
LOCKEMY, C.J., concurs.
GEATHERS, J., dissenting: I respectfully depart from the well-written decision
reached by the majority. The jury submitted a question seeking to determine whether
the plaintiff was required to show an actual injury in order to establish a violation of
her civil rights for purposes of her section 1983 claim.3 To respond to this question,
it was necessary to repeat the initial nominal damages charge, which included the
language quoted below, because the essence of this charge is the idea that a plaintiff
does not have to incur a traditional injury to successfully prosecute a 1983 claim:
[I]f you return a verdict for the plaintiff on a section 1983
claim but the plaintiff has failed to prove actual or
compensatory damages for her claim then you must award
nominal damages of one dollar for that claim.
A person whose federal rights were violated is
entitled to a recognition of that violation even if he or she
suffered no actual injury. Nominal damages such as one
dollar are designed to acknowledge the depr[i]vation of a
federal right even where you find no actual injury
occurred.
(emphasis added). In other words, the violation of a right is itself considered an
injury. See Uzuegbunam v. Preczewski, 141 S. Ct. 792, 802 (2021) ("Because 'every
violation [of a right] imports damage,' nominal damages can redress [the plaintiff's]
injury even if he cannot or chooses not to quantify that harm in economic terms."
(second alteration added) (citation omitted) (quoting Webb v. Portland Mfg. Co., 29
2
We decide this case without oral argument pursuant to Rule 215, SCACR.
3
Accompanying this question was the jury's request to obtain a copy of the language
in section 1983, which the circuit court denied.
F. Cas. 506, 509 (C.C.D. Me. 1838) (No. 17,322))). In the absence of this key
language, the circuit court's re-charge on the claim's general elements, especially
proximate cause, likely confused the jury or gave the jury the impression that a
traditional injury is required.
I am not suggesting that the circuit court always has to repeat a charge in its
entirety when responding to a jury's question. However, in the instant matter, the
court included the nominal damages language in the first two charges on the
requirements for a section 1983 claim and omitted the nominal damages language in
the third and final charge in response to the jury's question concerning an actual
injury. Under these circumstances, I believe the omission of this key language de-
emphasized it or removed it from the jury's consideration when, in fact, it was the
only language that would have directly responded to the jury's question. See
Winthrop Univ. Trs. for the State v. Pickens Roofing & Sheet Metals, Inc., 418 S.C.
142, 165, 791 S.E.2d 152, 164 (Ct. App. 2016) ("When the jury requests additional
charges, it is sufficient for the court to charge only the parts of the initial charge
[that] are necessary to answer the jury's request." (emphasis added) (quoting Rauch
v. Zayas, 284 S.C. 594, 597, 327 S.E.2d 377, 378 (Ct. App. 1985)).
In sum, the denial of counsel's request to re-charge the jury on nominal
damages was based on the erroneous conclusions that (1) the nominal damages
charge was unnecessary to respond to the jury's question and (2) a re-charge on the
claim's general elements, in the absence of the nominal damages language, would be
more responsive. See id. Because the circuit court's ruling was based on errors of
law, I would reverse and remand for a new trial. See First Union Nat. Bank v. First
Citizens Bank & Tr. Co. of S.C., 346 S.C. 462, 466, 551 S.E.2d 301, 303 (Ct. App.
2001) ("An abuse of discretion can occur where the trial court's ruling is based on
an error of law."); see also Zabinski v. Bright Acres Assocs., 346 S.C. 580, 601, 553
S.E.2d 110, 121 (2001) ("An abuse of discretion occurs where the trial court is
controlled by an error of law or where the trial court's order is based on factual
conclusions without evidentiary support.").