The Honorable Thomas M. Reavley, United States Senior Circuit Judge for 1

the Fifth Circuit, sitting by designation.

 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-3700

No. 96-3835

___________

Vicki Westcott, Administratrix *

of the Estate of Arden Westcott, * 

*

Appellant - Cross Appellee, * 

* Appeals from the United

States

v. * District Court for the

* District of Nebraska. 

 

Joseph C. Crinklaw; City of *

Omaha, A Municipal Corporation, *

*

 Appellees - Cross Appellants. *

 ___________

 Submitted: June 12,1997

 Filed: January

9, 1998

___________

Before LOKEN, REAVLEY, and JOHN R. GIBSON, Circuit

1

Judges.

___________

JOHN R. GIBSON, Circuit Judge.
See Westcott v. City of Omaha, 901 F.2d 1486 (8th Cir. 1990); Westcott v. 2

Crinklaw, 68 F.3d 1073 (8th Cir. 1995). 

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We now consider Vicki Westcott's third appeal in her

civil rights action against the City of Omaha and Joseph

Crinklaw. Crinklaw, an Omaha police officer, shot and

killed Vicki Westcott's husband, Arden Westcott, during an

attempted burglary. We reversed the first jury verdict

for Crinklaw because of errors in admitting evidence. The

jury in the second trial returned a verdict for Westcott,

but only awarded one dollar in damages. Westcott now

appeals, arguing that a new trial on damages is warranted

because the district court failed to properly instruct the

jury on damages and because the one dollar damage award is

inadequate as a matter of law. She also appeals the

district court's failure to award her attorneys' fees and

the dismissal of the City of Omaha as a defendant. We

conclude that the district court committed plain error in

instructing the jury on nominal damages, and the dollar

award is inadequate as a matter of law. Accordingly, we

reverse the judgment and remand for a new trial. 

The facts of this case are set forth in our previous

opinions. Because of the limited issues in this appeal, 2

it is unnecessary that we repeat them here. 

I.

Westcott contends that she is entitled to a new trial

on damages because of the district court's jury

instructions. First, she argues that the district court

failed to instruct the jury to consider loss of consortium

damages suffered by herself and her two children. Second,

she argues that the district court erred in not

instructing the jury on hedonic damages. 
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Westcott's argument about the ability of survivors to

recover for their own loss of consortium in a section 1983

action is beside the point. See Frey v. City of

Herculaneum, 44 F.3d 667, 670-71 (8th Cir. 1995)

(discussing father's ability to
The city contends that such a suit would have been barred by Nebraska's 3

two-year statute of limitations. See Neb. Rev. Stat. § 30-810 (Reissue 1995).

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recover under section 1983 for death of his son); cf.

Berry v. City of Muskogee, 900 F.2d 1489, 1506-07 (10th

Cir. 1990) (survivors not entitled to loss of consortium

damages because section 1983 creates a federal remedy only

for the party injured). Westcott's characterization of

her suit as a wrongful death action is not supported by

the record. Although Westcott's amended complaint seeks

damages on behalf of Arden Westcott's estate and on "her

own behalf," the record makes clear that Westcott sued as

the personal representative of Arden Westcott's estate to

recover damages for the deprivation of Arden Westcott's

constitutional rights. Westcott did not bring a pendant

state law claim for wrongful death, or separate claims for

3

the deprivation of her or her children's constitutional

rights. In addition, the loss of consortium damages set

forth in the pretrial order include only those suffered by

Arden Westcott, and the court emphasized during trial that

"this is not a wrongful death action." This was not

pleaded or tried as a wrongful death action, and the court

did not err in refusing to instruct on loss of consortium

damages. 

Likewise, there is no error in the court's failure to

specifically instruct the jury on recovering for hedonic

damages (damages arising solely from Arden Westcott's loss

off the enjoyment of his life). See Black's Law Dictionary, 391

(6th ed. 1990). 

Relying on Nebraska law, the district court refused to

instruct the jury that Arden

Westcott's estate could be awarded hedonic damages. The
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district court concluded that Nebraska does not allow a

separate instruction on hedonic damages, relying on

Nebraska law which says that hedonic damages are not a

distinct category of damages but are merely a component of

pain and suffering and of disability. See Anderson v.

Nebraska Dep't of Social Services, 538 N.W.2d 732, 739-41

(Neb. 1995).

Westcott argues that the court erred in relying on

Anderson because that case
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was not a wrongful death action. Westcott further argues

that even if Anderson applied, the court should not have

relied on it because the case is inconsistent with the

deterrent policies of section 1983. See Hankins v.

Finnel, 964 F.2d 853, 861 (8th Cir. 1992) (in section 1983

cases, state law will be applied only to the extent it is

not inconsistent with federal law). Westcott cites

several cases which allow recovery for loss of life

damages despite a state law prohibiting such damages.

See, e.g., Bell v. City of Milwaukee, 746 F.2d 1205, 1238-

39 (7th Cir. 1984) (refusing to apply Wisconsin statute

that precluded damages to an estate for loss of life and

punitive damages); Graham v. Sauk Prairie Police Comm'n,

915 F.2d 1085, 1104-06 (7th Cir. 1990) (upholding an award

of damages for loss of life).

In Anderson, the Nebraska Supreme Court considered

whether the loss of the enjoyment of life is a separate

and distinct category of damages. 538 N.W.2d at 739-41.

The court concluded that although the loss of enjoyment of

life may be considered as it relates to pain and suffering

and disability, it is improper to treat it as a separate

category of nonpecuniary damages. Id. at 741. The court

reasoned that a separate award for loss of life damages

would not make a damage award more accurate, and would

likely result in a duplication of damages. Id.

The distinction Westcott creates between a case

involving an injury and a death is superficial. Like a

personal injury action, Westcott's estate sought to

recover damages for the loss of enjoyment of life.

Indeed, the district court did not prohibit Westcott's

estate from recovering damages for loss of life, the court

only refused a separate jury instruction providing for

such damages. See Bell, 746 F.2d at 1235-36, 1240. The
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court instructed the jury to compensate the estate the

amount of money "that will fairly and justly compensate

the plaintiff . . . for any loss sustained by Arden

Westcott. . . ." (Emphasis added). In calculating

damages, the court instructed the jury to consider as

elements of damages: physical pain and suffering; medical

and funeral expenses; lost earnings; and loss of

consortium. Included in Westcott's request to the jury

for damages was the suggestion that the jury should award

Westcott $200,000,
The court instructed: "If you find for the plaintiff, but find that the loss 4

resulting from Arden Westcott's death has no monetary value, then you must return

a verdict for the plaintiff in the nominal amount of One Dollar ($1.00)." 

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quantifying the loss "for a man to live another 50 years."

We therefore conclude that the court did not err in

refusing to specifically instruct the jury on loss of life

damages. 

II.

Westcott next argues that the district court committed

reversible error in giving the one dollar nominal damage

instruction. Along similar lines, Westcott contends that 4

the one dollar damage award is inadequate as a matter of

law.

In general, there are three situations in which a jury

may reasonably conclude that compensatory damages are

inappropriate despite a finding that excessive force was

used. First, when there is evidence that both justifiable

and unjustifiable force might have been used and the

injury may have resulted from the use of justifiable

force. See, e.g., Gibeau v. Nellis, 18 F.3d 107, 110 (2d

Cir. 1994). Second, when the plaintiff's evidence

concerning injury is not credible. See, e.g., Butler v.

Dowd, 979 F.2d 661, 669 (8th Cir. 1992) (en banc). Third,

when the plaintiff's injuries have no monetary value or

are insufficient to justify with reasonable certainty.

See, e.g., Briggs v. Marshall, 93 F.3d 355, 360 (7th Cir.

1996). If, however, it is clear from the undisputed

evidence that a plaintiff's injuries were caused by a

defendant's excessive use of force, then the jury's

failure to award some compensatory damages should be set

aside and a new trial ordered. See Haywood v. Koehler, 78

F.3d 101, 104 (2d Cir. 1996). 
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The Eleventh Circuit considered circumstances

analogous to those here in Saunders v. Chatham County

Board of Commissioners, 728 F.2d 1367 (11th Cir. 1984).

The jury returned a verdict for a prisoner for injuries

the prisoner sustained when he was beaten by another

prisoner, but assessed no damages. Id. at 1368. The
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district court instructed the jury that it was not a valid

verdict since it was undisputed that the prisoner was

injured. Id. The jury then awarded $10,000, and the

county appealed arguing that the court should have given

a nominal damage instruction. Id. The Eleventh Circuit

disagreed, concluding that the court correctly instructed

the jury. Id. at 1369. 

Other courts have also held that an instruction on

nominal damages is only appropriate to vindicate

constitutional rights whose deprivation has not caused an

actual, provable injury. See Stachniak v. Hayes, 989 F.2d

914, 923 (7th Cir. 1993) (citation and quotation omitted).

Accord Briggs, 93 F.3d at 359-60 (nominal damage

instruction inappropriate when there is no dispute as to

whether plaintiff suffered a provable injury); Wheatley v.

Beetar, 637 F.2d 863, 865-66 (2d Cir. 1980) (trial court

erred in instructing the jury on nominal damages when

there was proof of actual injury). 

It is undisputed that Westcott received fatal

injuries, and the parties stipulated to funeral expenses

of $3,262.64. There was no issue of injury, and the court

therefore erred in instructing the jury on nominal

damages. See Briggs, 93 F.2d at 359-60; Saunders, 728

F.2d at 1369; Wheatley, 637 F.2d at 865-66.

Nevertheless, Westcott failed to properly object to

the instruction. Westcott contends that she objected to

the nominal damage instruction "albeit in a roundabout

way." During the instruction conference, the court asked

for any objections to the nominal damage instruction and

the following exchange occurred:

[Attorney]: I want to put a couple more zeroes after
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that.

The Court: Yeah.

[Attorney]: I'll go for two zeroes.

The Court: Well, what, 1.000 or what?
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[Attorney]: That's okay.

The Court: Okay.

[Attorney]: No objection.

Rule 51 of the Federal Rules of Civil Procedure

provides that error cannot be based upon the giving of an

instruction to which the complaining party has not

properly objected. The rule requires specific objections

before the jury retires so that the district court may

correct errors and avoid the need for a new trial.

"Objections must 'bring into focus the precise nature of

the alleged error.'" Jones Truck Lines, Inc. v. Full

Service Leasing Corp., 83 F.3d 253, 256-57 (8th Cir. 1996)

(quoting Palmer v. Hoffman, 318 U.S. 109, 119 (1943)).

Even tendering an alternative instruction without

objecting to some specific error in the trial court's

charge or explaining why the proffered instruction more

accurately states the law does not preserve the error for

appeal. See id. 

Westcott's "roundabout" objection did not preserve the

error for review on appeal, and our review is thus limited

to whether there was plain error. Rush v. Smith, 56 F.3d

918, 922 (8th Cir. 1995) (en banc). Under this standard,

reversal is warranted "only if the error prejudices the

substantial rights of a party and would result in a

miscarriage of justice if left uncorrected." Id. The

error must seriously affect the fairness, integrity or

public reputation of judicial proceedings to constitute

plain error. See Caviness v. Nucor-Yamato Steel Co., 105

F.3d 1216, 1220 (8th Cir. 1997) (jury instruction

constituted plain error). 

The court erred in instructing the jury on nominal
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damages. The evidence conclusively established that

Westcott suffered fatal injuries and sustained actual

damage of, at least, the amount of stipulated funeral

expenses. The law is clear that a nominal damage

instruction is not appropriate when there is proof of

actual injury. The error, therefore, is plain. We will

not correct a plain error, however, unless it
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prejudiced Westcott, either specifically or presumptively.

Caviness, 105 F.3d at 1220. 

Westcott's argument that the one dollar damage award

is inadequate as a matter of law is subject to a similar

inquiry because she failed to raise the adequacy of the

jury verdict in her motion for a new trial. Absent

exceptional circumstances, the adequacy of a jury verdict

must first be presented to the trial court in a motion for

a new trial in order to preserve the issue for review.

Sanders v. Brewer, 972 F.2d 920, 923 (8th Cir. 1992).

Exceptional circumstances exist when there is a "plain

injustice," or a "monstrous" or "shocking" result. Id.

(quoting Taken Alive v. Litzau, 551 F.2d 196, 198-99 (8th

Cir. 1977)). Westcott characterizes an award of one

dollar for the taking of a life as a plain injustice. 

We have affirmed nominal damage awards even when there

has been evidence of serious injury. For example, in

Butler, we rejected four inmates' claims that the jury's

award of nominal damages was inadequate as a matter of

law. 979 F.2d at 669. In that case, the inmates brought

a section 1983 suit against prison officials after they

were homosexually raped while in prison. Id. at 663. The

jury returned a verdict for the inmates, but awarded them

only one dollar in nominal damages. Id. at 669. We held

that the jury's award of nominal damages was not

inadequate as a matter of law. Id. Citing Carey v.

Piphus, 435 U.S. 247, 263 (1978), we reasoned that the

jury could have awarded nominal damages because it

concluded that the inmates' actions, not the actions of

the prison officials, were the cause in fact of most of

the inmates' injuries, and because the inmates failed to

produce at trial objective medical evidence supporting

their injuries. Id. In Sanders, we held the nominal

damage award "troubling," but not a "plain injustice."
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972 F.2d at 923. In that case, an inmate was beaten by

other prisoners and suffered a broken jaw. Id. at 922.

We have upheld other verdicts where the jury has found

liability but awarded zero or nominal damages. See, e.g.,

Warren v. Fanning, 950 F.2d 1370, 1374 (8th Cir. 1991);

Williams v. Mensey, 785 F.2d 631, 639 (8th Cir. 1986).
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In Haley v. Wyrick, 740 F.2d 12 (8th Cir. 1984), we

also held that a one dollar damage award was not a

monstrous or shocking result. Id. at 14. In that case,

an inmate was stabbed thirty-two times five days after

prison officials released him from protective custody into

the general prison population. Id. at 13. The jury

returned a verdict for the inmate, awarding one dollar in

damages. Id. Although we believed that the award of

nominal damages was inadequate, we concluded that in the

absence of a motion for a new trial, the award did not

require reversal. Id. at 14. We were influenced by

evidence in the record that the inmate willingly

encountered a known risk when he entered the general

population. Id.

The City contends that the nominal damage instruction

was not prejudicial and the award is not a "monstrous" or

"shocking" result. The City contends that the evidence

supports a jury finding that Westcott's injury had no

monetary value. The City explains that if the police

would have arrested Westcott for the attempted burglary,

his earning power and personal relations would have

suffered dramatically. The City contends that "[t]he jury

may well have believed Westcott's choice to engage in

criminal acts would not only end his rosy economic future

but end any companionship and society described by his

wife." Although the City stipulated as to the amount of

funeral expenses, the City argues that the jury reasonably

decided not to compensate Westcott for these expenses,

"[g]iven the inevitability of death and funeral expenses

for all persons." 

It is beyond question that if Westcott would have been

arrested, his personal and financial situation would

suffer. It is hard to imagine, however, that his arrest
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would have reduced his lifetime earning capacity to

nothing. Indeed, there was evidence that Westcott, a

twenty-five year old first-time offender, would probably

have received probation and would not have lost his job.

The evidence also showed that the sentence for attempted

burglary is from zero to twenty years. 

The jury finding of excessive force and the evidence

of injury cannot be
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reconciled with the damage award. This is not a case in

which the jury could have denied compensatory damages

because there was evidence of both justifiable and

excessive force, see Haywood, 78 F.3d at 105, or

uncertainty as to the fact or extent of Westcott's injury.

See Butler, 979 F.2d at 669; see also Cowans v. Wyrick,

862 F.2d 697, 700 (8th Cir. 1989). Further, given the

uncontested evidence of fatal injury and stipulation of

some actual damages, the nominal damage instruction

directly conflicts with other instructions given by the

court. Instruction Number 17 stated that the jury must

find for plaintiff if: "Crinklaw shot and killed Arden

Westcott;" if "Crinklaw’s use of force in shooting Arden

Westcott was, under the circumstances, excessive because

the particular force was not reasonably necessary for the

purpose of protecting Officer Crinklaw from serious

physical injury," and if "Arden Westcott suffered damages

as a direct result of Officer Crinklaw’s action." The

court also instructed the jury that if any of these

elements had not been proven by the preponderance of the

evidence, then its verdict must be for defendant. The

verdict finding for Westcott establishes that the jury

made positive findings on those elements outlined in

instruction number 17. We are unable to reconcile the

nominal damage award with these jury findings. 

For those reasons, we have no doubt that Westcott was

prejudiced by the court's instruction on nominal damages.

The award of one dollar in light of the jury finding that

excessive force was used and evidence of injury amounts to

a plain injustice or a shocking or monstrous result. 

III.

In light of our disposition above, we need not address
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Westcott's argument concerning the district court's

refusal to award attorneys' fees and dismissal of the

City. 
Although Westcott requests a new trial on the issue of damages alone, we 5

are persuaded there should be a new trial on liability and damages because the 

issues are so factually intertwined. See Caviness, 105 F.3d at 1221.

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We reverse and remand the case for a new trial.5

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH

CIRCUIT.