Sherry Bender v. City of New York New York City Police Officers John Timmes Sonia I. Corpes, Shield 28035 Daniel O'sullivan, Shield 15904 and Gerald Heinz

Citations: 78 F.3d 787; 1996 U.S. App. LEXIS 3726Docket: 539

Court: Court of Appeals for the Second Circuit; February 29, 1996; Federal Appellate Court

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In the case of Sherry Bender v. City of New York, the United States Court of Appeals for the Second Circuit addressed an appeal concerning a jury's award of $300,700 to Bender for claims of false arrest, malicious prosecution, battery, and intentional infliction of emotional distress. The defendants, including the City of New York and four police officers, primarily contested the $150,000 awarded for intentional infliction of emotional distress. The court recognized the complexity of the case and the potential for duplicative compensatory awards across different claims and defendants.

The incident occurred on June 15, 1991, when Bender was riding her bicycle near a demonstration in Tompkins Square Park. Disputes arose over her interaction with police officers, with Bender alleging she was unjustly shoved and arrested by Lt. Timmes and subsequently by Officers Heinz and O'Sullivan. The arrest led to claims of false arrest and malicious prosecution.

Following her arrest, Bender was taken to a police van where Officer Sonia Corpes allegedly struck her in the mouth, leading to further claims of battery and emotional distress. During processing at the precinct, Officer Corpes made derogatory comments and subjected Bender to dehumanizing inquiries, further aggravating her claims. Bender was charged with multiple offenses, including disorderly conduct and felony assault, but all charges were eventually dropped six months later. The appellate court reversed the aggregate award and ordered a new trial unless Bender accepted a remittitur of $150,000.

Bender filed a federal lawsuit under Section 1983 and state law against four police officers and New York City, alleging false arrest, malicious prosecution, battery, and intentional infliction of emotional distress. The jury's verdict form focused on liability for state law torts without separately addressing the Section 1983 claims, as the judge had instructed that their elements mirrored those of the state torts. The jury found Lt. Timmes and Officer Corpes liable for false arrest and malicious prosecution, awarding damages of $700 and $10,000 for false arrest, and $50,000 and $80,000 for malicious prosecution, respectively. Corpes was also found liable for battery and intentional infliction of emotional distress, with damages of $10,000 and $150,000. No punitive damages were awarded. The judgment totaled $300,700 against the officers and the City jointly and severally. The District Court denied the City's motions for judgment as a matter of law and for a new trial, with the judge affirming that imprisonment without probable cause could constitute intentional infliction of emotional distress. The judge also acknowledged a New York legal principle questioning the viability of overlapping torts but concluded that the emotional distress claim contained unique elements not fully encompassed by the other claims.

If the jury believed Officer Corpes made a statement to Bender with sadistic intent, indicating that Bender would have to endure "the system" as a threat of worse consequences than mere charges, it could establish additional elements for a claim of intentional infliction of emotional distress beyond malicious prosecution or false imprisonment. The tort of intentional infliction of emotional distress under New York law requires four elements: (1) extreme and outrageous conduct, (2) intent to cause severe emotional distress, (3) a causal link between the conduct and the injury, and (4) proof of severe emotional distress. Appellants challenge the emotional distress award against Officer Corpes, arguing that her conduct does not meet the New York standard for "extreme and outrageous conduct" and that emotional distress claims should not be permissible when other tort claims are applicable. New York imposes a high threshold for conduct to qualify as "extreme and outrageous," as established in case law. While recent Appellate Division decisions have been restrictive, some lower courts have allowed emotional distress claims to proceed, even for conduct deemed less than "utterly intolerable." Notably, an allegation that a police officer made a false complaint against a plaintiff during a matrimonial action was deemed sufficient for an emotional distress claim to survive summary judgment.

Appellants contest the adequacy of Bender's factual claims, framing the incident as straightforward—Bender bit Officer Corpes, who subsequently filed an assault complaint. However, the evidence reveals ambiguity; it is undisputed that Bender, while handcuffed, made contact with Officer Corpes's arm. Officer Corpes asserts that Bender bit her, while Bender claims she was struck in the mouth and insists she only opened her mouth, with her teeth marks coinciding with the officer's arm. This conflicting testimony raises factual issues for the jury regarding whether the officer's injury resulted from her striking Bender and whether she falsely accused Bender of biting her, which, if resolved in Bender's favor, could imply that Officer Corpes's actions were sufficiently outrageous to fulfill the emotional distress tort's conduct requirement.

Nonetheless, appellants argue that Bender's emotional distress claim overlaps substantially with traditional torts like false arrest, battery, and malicious prosecution. The New York Court of Appeals in Fischer v. Maloney questioned the applicability of emotional distress claims when conduct falls within the scope of other tort liabilities. Appellants assert that Bender's claims for emotional distress reside within this scope, citing various cases that have rejected emotional distress claims under similar circumstances.

Bender counters that the Fischer statement is merely dictum and that lower courts have upheld emotional distress claims in conjunction with other torts. Judge Cedarbaum addressed this issue, concluding that the emotional distress claim did not completely overlap with the others, as the initiation of a false charge with malicious intent could involve elements not covered by false arrest or malicious prosecution.

There remains uncertainty about whether state courts would allow an emotional distress claim alongside the other torts. Although Bender cites Levine as a compelling precedent, the specific context of her case complicates its applicability. Ultimately, it is deemed unnecessary to definitively resolve the state law issue or pursue certification to the New York Court of Appeals at this stage.

Substantial issues arise regarding the size of the aggregate jury award, particularly concerns about potential inflation due to duplication among separate awards for various torts and defendants. The injuries sustained due to police misconduct include a minor physical blow with no lasting effects, 24 hours of unpleasant confinement, an additional five hours in custody, the pendency of charges for six months before dismissal, and emotional distress lasting a year and a half, diagnosed as post-traumatic distress syndrome. Despite the emotional distress, the circumstances were relatively mild, leading to the conclusion that an aggregate award of $300,700 is excessive.

Comparative cases indicate that lower awards have been issued for similar or more severe incidents. For instance, in King v. Macri, a victim of malicious prosecution received $75,000 for being beaten and confined for two months. Gentile v. County of Suffolk upheld a $150,000 award for wrongful confinement lasting several days and pending charges for six years. In Gardner v. Federated Department Stores, an award was reduced from $150,000 to $50,000 for a few hours of wrongful detention. Higher awards have typically been associated with significant aggravating factors, as seen in cases like Vitale v. Hagan and Hughes v. Patrolmen's Benevolent Association, where substantial sums were awarded due to severe misconduct.

Overall, the aggregate award in this case appears excessive, likely resulting from duplicated compensation across various claims.

Compensatory damages are awarded for a single injury, prohibiting multiple recoveries for the same injury across different causes of action. If a second cause of action addresses a separate injury or an additional component of injury not covered by the first, further damages may be awarded. Once damages are determined for a specific injury, no additional compensatory damages can be claimed from multiple defendants for that same injury. In the case discussed, some of Bender's claims could result in separate injuries (e.g., false arrest vs. battery), but certain claims are partially duplicative (e.g., false arrest vs. emotional distress). The injury from false arrest (loss of liberty) overlaps with emotional distress claims, and emotional pain from battery is similarly related. Although there may be components of emotional distress damages above those for false arrest or malicious prosecution, the awarded amounts for emotional distress, false arrest, and malicious prosecution substantially overlap. Additionally, duplicative awards occurred not only between different causes of action but also among different defendants for the same injuries. For instance, two awards for false arrest and the malicious prosecution claims against different defendants do not justify separate recoveries if they pertain to the same wrongful actions leading to a single confinement. Ultimately, liability for damages can be assigned to any defendants whose actions proximately caused the injury.

A proper verdict form and jury charge should have clarified for the jury the distinct and overlapping nature of injuries resulting from various torts, allowing additional damages only for unrecognized injuries. The existing verdict form merely asked for damages related to each tort without addressing potential overlap, which risked duplicative awards. The jury was instructed to compensate for any injury caused by a defendant's conduct, a correct approach for entirely distinct injuries, but problematic here due to substantial overlap among claims. The verdict form's wording perpetuated this risk.

The jury should have first assessed compensable damages for each injury, then determined liability among defendants. While some cases have allowed seemingly duplicative awards when the jury intended them as aggregate sums, this case lacks such indications. 

The aggregate award of $300,700 is deemed excessive and likely inflated due to award duplication. Although a new trial or a conditional remittitur would generally be appropriate, the defendants' failure to object to the jury charge or the aggregate amount complicates this remedy. Nonetheless, the court identifies the excessiveness as plain error, particularly stemming from impermissible duplication. 

The appellants only challenged the emotional distress component of the award, which amounts to $150,000. The court finds this component excessive due to duplication of damages and orders a new trial unless Bender agrees to remit this amount. If Bender does not comply, the District Court will decide if the new trial should focus solely on the damages issues.

Reversal and remand for a new trial are mandated unless a remittitur is accepted. Judge McLaughlin recused himself before oral arguments, leaving the remaining two panel members in agreement regarding the appeal. The $700 award against Heinz and O'Sullivan lacks clarity, as only Timmes was found liable for this amount. An award of $150,000 for pain and suffering was upheld based on evidence of physical disabilities and a personality-altering anxiety disorder. There appears to be potential duplication between the awards for false arrest and malicious prosecution, as New York law distinguishes damages for injuries pre- and post-arraignment. The jurors were not informed of this distinction, likely affecting their understanding. The injuries from arrests for assault and disorderly conduct could be seen as duplicative; however, evidence allowed the jury to determine that the disorderly conduct arrest would not have resulted in confinement. Jurisdictional guidance from a recent case indicated that plaintiffs cannot recover twice for the same injury, suggesting that if emotional distress overlaps with other claims, damages should be limited to distinct components of injury.

The City has agreed to cover any judgment amounts awarded against individual officers, negating the need to apportion the remaining judgment among defendants. On appeal, the primary challenge is to the $300,700 judgment's emotional distress component. The court finds the $150,000 awarded for emotional distress excessive due to duplication of damages, constituting a clear error despite no prior objection. To address this, the court will reverse the judgment and mandate a new trial unless Bender accepts a remittitur of $150,000. If the remittitur is not accepted, the District Court will determine whether the new trial is limited to damages issues. The judgment is reversed and remanded, with Judge McLaughlin recused from the panel. The excerpt references potential duplicative awards between false arrest and malicious prosecution, the lack of jury awareness regarding the distinction, and emphasizes that plaintiffs should not receive compensation for the same injury under different claims. If a court allows recovery for overlapping torts, any emotional distress award should reflect only injuries distinct from those already compensated.