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 Unite d States v. * District Court for the
* District of Nebraska. Joseph C. Crinklaw; City of * Omaha, A Municipal Corporation, *
* Appellees - Cross Appellants. *

___________ Submitted: June 12,199 7
Filed: Januar y 9, 1998

___________ Befor e LOKEN, REAVLEY, and JOHN R. GIBSON, Circui t 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).
-2- We now consider Vicki Westcott's third appeal in he r ci vil rights action against the City of Omaha and Josep h Cr inklaw. Crinklaw, an Omaha police officer, shot an d killed Vicki Westcott's husband, Arden Westcott, d uring an attempt ed burglary. We reversed the first jury verdic t for Crinklaw because of errors in admitting eviden ce. The jury in the sec ond trial returned a verdict for Westcott, but onlyawarded one dollar in damages. Westcott no w appeals, arguin g that a new trial on damages is warranted because the district court failed to properly inst ruct the jury on damages and because the one dollar damage award is inadequate as a matter of law. She also appeals th e district court' s failure to award her attorneys' fees and th e dismissal of the City of Omaha as a defendant. W e conclude that t he district court committed plain error in instruc ting the jury on nominal damages, and the dolla r award is inadequate as a matter of law. Accordingly, w e reverse the judgment and remand for a new trial.

The facts of this case are set forth in our previou s opinions. Because of the limited issues in this appeal,

2 it is unnecessary that we repeat them here.

I.

Westcott contends that sh e is entitled to a new trial
on dam ages because of the district court's jur y inst ructions. First, she argues that the district cour t failed to instruct the jury to consider loss of co nsortium damages suffered by herself and her two children. Second, she arg ues that the district court erred in no t instructing the jury on hedonic damages.-3-

Westcott's argument about the ability of survivors to recover for their own loss of consortium in a sect ion 1983 actionis beside the point. See Frey v. City o f Hercul aneum , 44 F.3d 667, 670-71 (8th Cir. 1995 ) (discussing father's ability toThe city contends that such a suit would have been barred by Nebraska's 3 two-year statute of limitations. SeeNeb. Rev. Stat. § 30-810 (Reissue 1995).
-4- recover under section 1983 for death of his son); cf

. Berry v. City of Muskogee , 900 F.2d 1489, 1506-07 (10t h Cir. 1990) (survivors not entitled to loss of consortiu m damages because section 1983 creates a federal rem edy only for th e party injured). Westcott's characterization o f her s uit as a wrongful death action is not supported b y the re cord. Although Westcott's amended complaint seek s da mages on behalf of Arden Westcott's estate and on "he r own behalf," th e record makes clear that Westcott sued as the personal re presentative of Arden Westcott's estate to
recove r damages for the deprivation of Arden Westcott' s cons titutional rights. Westcott did not bring a pendan t state law claim for wrongful death, or separate claims fo r 3 the de privation of her or her children's constitutiona l ri ghts. In addition, the loss of consortium damages se t forth in the pretrial order include only those suf fered by Arden Westcott, and the court emphasized during tr ial that "this is not a wrongful death action." This was no t pleaded or tried as a wrongful death action, and t he court did not err in refusing to instruct on loss of consortium damages.
Likewise, there is no err or in the court's failure to specif icallyinstruct the jury on recovering for hedoni c damages (damages arising solely from Arden Westcot t's loss off the enjoyment of his life). See B lack's Law Dictionary , 391 (6th ed. 1990).
Relyingon Nebraska law, the district court refused t o instruct the jury that Arden West cott's estate could be awarded hedonic damages. Th e-5-

distric t court concluded that Nebraska does not allow a sep arate instruction on hedonic damages, relying o n Nebraska law which says that hedonic damages are not a distinct category of damages but are merely a comp onent of painand 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 o n Andersonbecause that case-6-

was not a wrong ful death action. Westcott further argues th at even if Andersonapplied, the court should not hav e relied on it because the case is inconsistent with th e det errent policies of section 1983. See Hankins v

. Finnel , 964 F.2d 853, 861 (8th Cir. 1992) (in sect ion 1983 cases, state la w will be applied only to the extent it is not in consistent with federal law). Westcott cite s sev eral cases which allow recovery for loss of lif e damage s despite a state law prohibiting such damages

. See , e.g. , Bell v. City of Milwaukee , 746 F.2d 120 5, 1238- 39 (7th Cir. 1984) (refusing to apply Wisconsin statut e that precluded damages to an estate for loss of life an d puniti ve 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 considere d wheth er the loss of the enjoyment of life is a separat e an d distinct category of damages. 538 N.W.2d at 739-41

. The court concluded that although the loss of enjo yment of life may be considered as it relates to pain and s uffering and disability, it is improper to treat it as a separat e category of nonpecuniary damages. Id. at 741. The court reasoned that a separate award for loss of life damage s would not make a damage award more accurate, and woul d likely result in a duplication of damages. Id.

The d istinction Westcott creates between a cas e invol ving an injury and a death is superficial. Like a per sonal injury action, Westcott's estate sought t o recove r 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, t he court onlyr efused a separate jury instruction providing fo r such dama ges. See Bell , 746 F.2d at 1235-36, 1240. Th e-7-

co urt instructed the jury to compensate the estate th e amount of money "that will fairly and justly compensat e the pl aintiff . . . for anyloss sustained by Arde n Westco tt. . . ." (Emphasis added). In calculatin g damag es, the court instructed the jury to consider a s elements of damages: physical pain and suffering; medical and fu neral expenses; lost earnings; and loss o f consort ium. Included in Westcott's request to the jur y 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)."
-8- quantifying the loss "for a man to live another 50 years." We the refore conclude that the court did not err i n refusing to specifically instruct the jury on loss of life damages. II.

Westcott next argues that the district court committe d
reve rsible error in giving the one dollar nominal damag e instruction. Along similar lines , Westcott contends that 4 the one dollar damage award is inadequate as a matter o f law.

Ingeneral, there are three situations in which a jur y mayr easonably conclude that compensatory damages ar e inappr opriate despite a finding that excessive force wa s used. First, when there is evidence that both jus tifiable and unjustifiable force might have been used and th e injurymay have resulted from the use of justifiabl e force. See , e. g. , Gibeau v. Nellis , 18 F.3d 107, 110 (2d Cir. 1 994). Second, when the plaintiff's evidenc e co ncerning injury is not credible. See , e.g. , Butler v

. Dowd , 979 F.2d 661, 669 (8th Cir. 1992) (en banc). Third, when th e plaintiff's injuries have no monetary value o r are insufficient to justify with reasonable certainty

. See , e.g. , Brig gs v. Marshall , 93 F.3d 355, 360 (7th Cir. 1996). If, however, it is clear from the undispute d evide nce that a plaintiff's injuries were caused by a defend ant's excessive use of force, then the jury' s fail ure to award some compensatory damages should be se t aside and a new trial ordered. See Haywood v. Koe hler , 78 F.3d 101, 104 (2d Cir. 1996).-9-

The Eleventh Circuit considered circumstance s analo gous to those here in Saunders v. Chatham Count y Board o f Commissioners , 728 F.2d 1367 (11th Cir. 1984)

. The jury returned a verdict for a prisoner for injurie s the prisoner sustained when he was beaten by anothe r prisoner, but assessed no damages. Id. at 1368. The-10-

district court instructed the jury that it was not a valid verdi ct since it was undisputed that the prisoner wa s injur ed. Id. The jury then awarded $10,000, and th e coun tyappealed arguing that the court should have give n a nominal damage instruction. Id. The Eleventh Circui t disagreed, conc luding that the court correctly instructed the jury. Id. at 1369.

Other courts have also held that an instruction o n nominal damages is only appropriate to vindicat e 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 o mitted). Accord Briggs , 93 F.3d at 359-60 (nominal damag e inst ructioninappropriate when there is no dispute as t o whether plaintiff suffered a provable injury); Whe atley v. Be etar , 637 F.2d 863, 865-66 (2d Cir. 1980) (trial cour t erred in instructing the jury on nominal damages whe n there was proof of actual injury).

It is undisputed that Westcott received fata l injuri es, and the parties stipulated to funeral expense s of $3,262.64. There was no issue of injury, and t he court theref ore erred in instructing the jury on nomina l damages. See Briggs , 93 F.2d at 359-60; Saunders , 72 8 F.2d at 1369; Wheatley , 637 F.2d at 865-66.

Nev ertheless, Westcott failed to properly object t o the instruction. Westcott contends that she objected t o the no minal damage instruction "albeit in a roundabou t way." During t he instruction conference, the court asked for any objections to the nominal damage instruction an d the following exchange occurred:
[Attorney]: I want to pu t a couple more zeroes after-11-

that.

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

The Court: Well, what, 1.000 or what?-12-

[Attorney]: That's okay.
The Court: Okay. [Attorney]: No objection.

Rule 51 of the Federal Rules of Civil Procedur e provides that e rror cannot be based upon the giving of an instru ctionto which the complaining party has no t properly object ed. The rule requires specific objections before the jury retires so that the district court ma y corre ct errors and avoid the need for a new trial

. "Obj ections must 'bring into focus the precise nature o f the alle ged error.'" Jones Truck Lines, Inc. v. Ful l Service Leasing Corp. , 83 F.3d 253, 256-57 (8th Ci r. 1996) (q uoting Palmer v. Hoffman , 318 U.S. 109, 119 (1943))

. Eventendering an alternative instruction withou t objec ting to some specific error in the trial court' s charge or explaining why the proffered instruction mor e accurately stat es the law does not preserve the error for appeal. See id.

Westcott's "roundabout" objection did not preserve th e error for review on appeal, and our review is thus limited to whether ther e was plain error. Rush v. Smith , 56 F.3d 918, 922 (8th C ir. 1995) (en banc). Under this standard,
reversa l is warranted "only if the error prejudices th e substa ntial rights of a party and would result in a miscarriage of justice if left uncorrected." Id. Th e error must seriously affect the fairness, integrity o r public reputation of judicial proceedings to constitut e plain error. See Caviness v. Nucor-Yamato Steel Co. , 105 F.3d 1 216, 1220 (8th Cir. 1997) (jury instructio n constituted plain error).

The court erred in instructing the jury on nomina l-13-

dama ges. The evidence conclusively established tha t Westc ott suffered fatal injuries and sustained actua l damag e of, at least, the amount of stipulated funera l expe nses. The law is clear that a nominal damag e instr uctionis not appropriate when there is proof o f actual injury. The error, therefore, is plain. We wil l not correct a plain error, however, unless it-14-

prejudiced Westcott, either specifically or presum ptively. Caviness , 105 F.3d at 1220. Wes tcott's argument that the one dollar damage awar d is inadeq uate as a matter of law is subject to a simila r inquiry because she failed to raise the adequacy of th e jury verdict in her motion for a new trial. Absen t exceptional cir cumstances, the adequacy of a jury verdict must first be presented to the trial court in a mo tion for
a new trial in order to preserve the issue for review

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

. Except ional circumstances exist when there is a "plai n injusti ce," 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 on e dollar for the taking of a life as a plain injustice.

We have affirmed nominal damage awards even when ther e has been evidence of serious injury. For example, i n Butl er , we rejected four inmates' claims that the jury' s award of nominal damages was inadequate as a matter o f law. 979 F.2d at 669. In that case, the inmates brought
a secti on 1983 suit against prison officials after the y were homosexually raped while in prison. Id. at 6 63. 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 no t inadeq uate as a matter of law. Id. Citing Carey v

. Piphus , 435 U.S. 247, 263 (1978), we reasoned that th e juryc ould have awarded nominal damages because i t conclud ed that the inmates' actions, not the actions o f the p rison officials, were the cause in fact of most o f the inmates' injuries, and because the inmates failed t o produce at trial objective medical evidence supportin g their injuries. Id. In Sanders , we held the nomina l damage award "troubling," but not a "plain injustice. "-15-

972 F.2 d at 923. In that case, an inmate was beaten b y other prisoners and suffered a broken jaw. Id. at 922

. We have upheld other verdicts where the jury has foun d liability but awarded zero or nominal damages. Se e , e.g. , Warren v. Fanning , 950 F.2d 1370, 1374 (8th Cir. 1991) ; Williams v. Mensey , 785 F.2d 631, 639 (8th Cir. 1986).-16-

In Ha ley v. Wyrick , 740 F.2d 12 (8th Cir. 1984), w e 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 afte r prison officials released him from protective cust ody into the general prison population. Id. at 13. The jur y returned a verd ict for the inmate, awarding one dollar in damag es. Id. Although we believed that the award o f nomi nal damages was inadequate, we concluded that in th e ab sence of a motion for a new trial, the award did no t require reversal. Id. at 14. We were influenced by eviden ce in the record that the inmate willingl y encountered a known risk when he entered the genera l population. Id.
The City contends that th e nominal damage instruction was not prejudi cial and the award is not a "monstrous" or "shocki ng" result. The City contends that the evidenc e suppo rts a jury finding that Westcott's injury had n o monetaryvalue. The City explains that if the polic e would have arrested Westcott for the attempted burglary , his ea rning power and personal relations would hav e suffered dramatically. The City contends that "[t ]he jury mayw ell have believed Westcott's choice to engage i n criminal acts w ould not only end his rosy economic future bu t end any companionship and society described by hi s wife." Although the City stipulated as to the amount o f funeral expenses, the City argues that the jury re asonably decide d not to compensate Westcott for these expenses , "[g]iv enthe inevitability of death and funeral expense s for all persons."

It is beyond question that if Westcott would have bee n arre sted, his personal and financial situation woul d suffer. It is hard to imagine, however, that his arrest-17-

would have reduced his lifetime earning capacity t o nothi ng. Indeed, there was evidence that Westcott, a tw enty-five year old first-time offender, would probabl y ha ve received probation and would not have lost his job

. The evidence also showed that the sentence for attempte d burglary is from zero to twenty years.

Th e jury finding of excessive force and the evidenc e of injury cannot be-18-

reconcile d with the damage award. This is not a case i n which the jury could have denied compensatory damage s becaus e there was evidence of both justifiable an d
exce ssive force, see Haywood , 78 F.3d at 105, o r uncertainty as to the fact or extent of Westcott's injury. See B utler , 979 F.2d at 669; see also Cowans v. Wyrick , 862 F.2d 697, 700 (8th Cir. 1989). Further, given th e uncont ested evidence of fatal injury and stipulation o f
som e actual damages, the nominal damage instructio n direct lyconflicts with other instructions given by th e court. Instruction Number 17 stated that the jury mus t fi nd for plaintiff if: "Crinklaw shot and killed Arde n Westcott;" if "Crinklaw’s use of force in shooting Arden We stcott was, under the circumstances, excessive becaus e the particular force was not reasonably necessary for the pur pose of protecting Officer Crinklaw from seriou s physical injury ," and if "Arden Westcott suffered damages
as a direct result of Officer Crinklaw’s action." Th e court also instructed the jury that if any of thes e el ements had not been proven by the preponderance of th e evidence, then its verdict must be for defendant. Th e verdic t finding for Westcott establishes that the jur y made p ositive findings on those elements outlined i n instructionnumber 17. We are unable to reconcile th e nominal damage award with these jury findings.

For those reasons, we hav e no doubt that Westcott was prejudiced by t he court's instruction on nominal damages. The award of on e dollar in light of the jury finding that excessive force was used and evidence of injury am ounts to a plain injustice or a shocking or monstrous result.

III.

Inlight of our disposition above, we need not addres s-19-

Westcott's argument concerning the district court' s refus al to award attorneys' fees and dismissal of th e 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.
-20- We reverse and remand the case for a new trial. 5

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHT H CIRCUIT.