Hygh v. Jacobs

961 F.2d 359 (2d Cir. 1992)

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Nature of the Case

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Facts

P visited his friend Deborah Moore at her Catskill home, and consumed two beers. The couple had a disagreement, and P departed. P removed a propane tank attached to the house and placed it on the ground. Moore then became alarmed and instructed her daughter to telephone the police. A heated exchange between P and D took place. A shoving match ensued, during which D informed P that he was under arrest. D struck P in the cheek. P claims that D struck him in the face from behind while P was bending over to pick up his jacket after being informed that he was under arrest. D asserts that he hit P with his fist in self-defense, while they were erect and facing each other, after being shoved by P. The blow fractured his cheekbones, and plastic surgery under general anesthesia was subsequently required to deal with the injury. The plastic surgeon who performed the operation testified that the infliction of the injuries suffered by P 'would take . . . an extremely strong blow. And classically it's a blunt instrument of some sort that we would see it.' He also testified that P suffered permanent nerve damage as a result of the blow. D testified that because the confrontation with P occurred at night, he had a flashlight in one hand throughout the encounter. After booking, the police took P to the Greene County Memorial Hospital for treatment. He was then arraigned on charges of disorderly conduct and resisting arrest. P was incarcerated in the Greene County jail overnight. P called Terry C. Cox, a professor at Eastern Kentucky University, as an expert witness concerning law enforcement. Cox testified that the use of a flashlight as an offensive or defensive weapon greatly increased the risk of physical injury posed by the use of a baton or nightstick. Cox also testified that in his opinion, the use of a baton or flashlight to strike a person in the head would constitute 'deadly physical force' that would not be 'justified under the circumstances.' He further testified that accepting P's version of his encounter with D, there was no 'real legitimate reason' for the use of 'any force' by D. Cox further testified that D's conduct in these circumstances was 'totally improper.' Cox subsequently described 'deadly physical force' as 'using force in such a way that it has the potential to kill someone.' The jury returned verdicts in favor of P on the claims of excessive force for $216,000.00, false arrest for $108,000.00, and malicious prosecution for $36,000.00. The jury also determined that P was entitled to recover punitive damages from D, which were set at $1,000.00 after a subsequent hearing on that issue. On Judgment n.o.v. the court awarded $1 for malicious prosecution and reduced false arrest damages to $1000. P refused and a second trial was held. The jury then returned a verdict of $ 65,000 in damages for false arrest. D moved to set the verdict aside, but the district court denied the motion. This appeal followed.