United States Court of Appeals,

Fifth Circuit.

No. 92-4109.

Angel ROSADO and Mercedes M. Santos, Plaintiffs-Appellants,

v.

C.J. DETERS, et al., Defendants-Appellees.

Oct. 22, 1993.

Appeal from the United States District Court for the Western District of Louisiana.

Before REAVLEY, SMITH, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

The parents ("plaintiffs") of the decedent, Alberto Luis Ro sado-Santos, brought the

underlying 42 U.S.C. § 198 3 (1988) action, claiming that law enforcement officials violated the

decedent's substantive due process rights by engaging in a dangerous high-speed chase and

establishing a roadblock. The plaintiffs also brought a diversity survival and wrongful death action,

pursuant to La.Civ.Code Ann. arts. 2315, 2315.1, 2315.2 (West Supp.1993). After a jury trial, the

dist rict co urt dismissed all of the plaintiffs' claims with prejudice. Finding no merit to any o f t he

plaintiffs' issues on appeal, we affirm.

I

On July 27, 1988, C.J. Deters, a Louisiana state trooper, observed the decedent leaving the

parking lot of the Pussyc at Lo unge aboard a motorcycle. After observing the decedent violate

various tr affic laws, Deters activated his siren and lights in an attempt to get the decedent to pull

over. When the decedent sped away, Deters gave chase. Deters then radioed fo r assistance from

local law enforcement officials. Officer Benton of the City of DeRidder Police Department responded

to the call by setting up a roadblock with his vehicle at the intersection of U.S. Highway 171 and La.

Highway 3226.

Deters continued to chase the decedent on Highway 171, through the towns of Pickering and

Rosepine, for a distance of about thirteen miles and at speeds ranging from 80 to 110 miles an hour.1 The plaintiffs alleged that Benton intentionally backed his vehicle into the decedent.

2 When the complaint was filed, the plaintiffs lived in Puerto Rico. Louisiana substantive law

governs this diversity claim, as Louisiana is the forum state. See Ideal Mut. Ins. Co. v. Last Days

Evangelical Ass'n, Inc., 783 F.2d 1234, 1238 (5th Cir.1986) (applying substantive law of forum

state to diversity claim).

3 The magistrate judge, whose report and recommendations the district court adopted, stated

that "[p]laintiffs have not shown any basis of liability on the part of Officer Deters for the alleged

improper use of the roadblock. It is the opinion of the undersigned that Officer Deters was within

the scope of his duty as a state trooper in pursuing the decedent who was engaged in improper

and reckless use of a motorcycle at a high rate of speed." Record on Appeal vol. 3, at 336.

4 In opposing motions for summary judgment filed on behalf of Benton and the City of

DeRidder, the plaintiffs offered a photograph of the accident scene depicting two parallel "skid"

marks on the road leading directly to the wheels of Benton's car. The district court concluded

that this photograph created a genuine issue of material fact regarding whether Benton backed his

car into the decedent. The chase ended when the decedent hit the left rear of Benton's parked vehicle. 1 The decedent was

thrown clear of his motorcycle and later died from his injuries.

The plaint iffs filed a § 1983 suit against Deters, Benton, and the City of DeRidder, claiming

that the high-speed pursuit of the decedent and the establishment of the roadblock amounted to gross

negligence and excessive use of force. The plaintiffs also filed a survival and wrongful death action

under Louisiana law. 2 S ee La.Civ.Code Ann. arts. 2315, 2315.1, 2315.2. Deters filed a motion for

summary judgment on all of the plaint iffs' claims against him, which the district court granted. 3 The

action against Benton and the City of DeRidder proceeded to trial. 4

At trial, the plaint iffs called Ken Katsaris, an expert on police procedures and training, to give

his opinion regarding whether Benton backed his car into the decedent. The district court refused

to admit this opinion testimony, based on its conclusion that Katsaris was not qualified as an accident

reconstructionist. See Fed.R.Evid. 702 (concerning qualifications of expert witnesses).

The jury deliberated for approximately one and one-half hours before announcing to the

district court that it was deadlocked. The jury was then given a special interrogatory form, which

instructed the jury to answer i nterrogatory no. 1 first. That interrogatory asked: "Do you find by a

p reponderance of the evidence that at the time of impact, Robert L. Benton was backing up his

[p]olice car into the path of Alberto Rosado's motorcycle?" In the event of a "No" answer, the jurywas to "go to the end of the form, sign it, and return it to the Marshall [sic]."

The jury answered i nterrogatory no. 1 in the negative. Instead of proceeding to the end of

the form, however, the jury also answered i nterrogatory no. 14, whic h asked: "Do you find, by a

preponderance of the evidence, that Albert Rosado was also negligent and that his negligence was

a legal cause of his death?" This interrogatory was also answered in the negative. Finding no

irreconcilable conflict in the jury's answers, the district court entered judgment for Benton and the

City of DeRidder.

The plaint iffs raise the following issues on appeal: (a) that the court erred in granting

summary judgment for Deters, the state trooper who pursued the decedent; (b) that the court abused

its discretion by refusing to allow Katsaris to give his opinion on whether Benton backed his car into

the decedent; and (c) that the jury's answers to the special interrogatories were irreconcilable.

II

A

The plaint iffs first contend that the district court erred in granting summary judgment for

Deters, on both their federal and state law causes of action. We review the district court's grant of

a summary judgment motion de novo. D avis v . Illinois Cent. R.R., 921 F.2d 616, 617-18 (5th

Cir.1991). Summary judgment is appropriate if the record discloses "that there is no genuine issue

of material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P.

56(c). A party seeking summary judgment bears the initial burden of identifying those portions of the

pleadings and discovery on file, togethe r wit h any affidavits, which it believes demonstrate the

absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct.

2548, 2554, 91 L.Ed.2d 265 (1986). Once the movant carries its burden, the burden shifts to the

non-movant to show that summary judgment should not be granted. I d. at 324- 25, 106 S.Ct. at

2553-54. While we must "review the facts drawing all inferences most favorable to the party

opposing the motion," Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir.1986), that

party may not rest upon mere allegations or denials in its pleadings, but must set forth specific facts

showing the existence of a genuine issue for trial. A nderson v. Liberty Lobby, Inc., 477 U.S. 242,5 In their complaint, the plaintiffs also alleged that Deters's pursuit itself, apart from the use of

the roadblock, constituted "gross and wanton negligence" and therefore gave rise to a § 1983

claim. In opposing summary judgment, the plaintiffs only pursued their claim of excessive force in

the use of the roadblock. They do the same on appeal. We therefore cannot consider their claim

of gross and wanton negligence based upon only Deters's pursuit. See Vaughner v. Pulito, 804

F.2d 873, 877 n. 2 (5th Cir.1986) ("If a party fails to assert a legal reason why summary judgment

should not be granted, that ground is waived and cannot be considered or raised on appeal.");

Hobbs v. Blackburn, 752 F.2d 1079, 1082 (5th Cir.), cert. denied, 474 U.S. 838, 106 S.Ct. 117,

88 L.Ed.2d 95 (1985) (stating that matters neither cited as error nor briefed on appeal are

considered abandoned).

6 The Court in Brower

further noted that " "[s]eizure' alone is not enough for § 1983 liability;

the seizure must be "unreasonable.' " See Brower, 489 U.S. at 599, 109 S.Ct. at 1382.

7 See id., 489 U.S. at 597, 109 S.Ct. at 1381 (stating that no seizure occurs when pursuing

police seek to stop the suspect "only by the show of authority represented by flashing lights and

continuing pursuit" because suspect's freedom of movement not terminated); Galas v. McKee,

801 F.2d 200, 203 (6th Cir.1986) (holding that the high-speed pursuit of a traffic offender was

not itself a seizure because there was no "restraint on the individual's freedom to leave[ ],

accomplished by means of physical force or show of authority"); see also California v. Hodari

D., 499 U.S. 621, ----, 111 S.Ct. 1547, 1551, 113 L.Ed.2d 690 (1991) (holding that an arrest or

seizure "requires either

physical force ... or, where that is absent, submission to the assertion of

authority"). 256-57, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986).

The plaint iffs based their § 1983 action against Deters in part upon their allegation that the

roadblock amounted to the excessive use of force, in violation of th e decedent's substanti ve due

process rights. 5 Where an excessive force claim "arises in the context of an arrest or investigatory

stop of a free citizen, it is most properly characterized as one invoking the protecti ons of the Fourth

Amendment, which guarantees citizens the right "to be secure in their persons

... against unreasonable

... seizures' of the person ." G raham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 1871, 104

L.Ed.2d 443 (1989). In Brower v. County of Inyo, 489 U.S. 593, 597, 109 S.Ct. 1378, 1382, 103

L.Ed.2d 628 (1989), the Su preme Co urt held that a fleeing suspect is "seized" under the Fourth

Amendment when he is stopped by an intentionally placed roadblock. 6 The plaintiffs, however, have

not pointed to evidence in the sum m ary judgment record suggesting that Deters knew of, or

participated in, establishing the roadblock. The record shows that although Deters radioed for

assistance from local law enforcement officials, he first knew of the roadblock when he saw Benton's

vehi c le, moments before the decedent crashed into it. Because Deters's pursuit alone cannot

constitute a seizure, 7 we hold that Deters's conduct did not implicate the Fourth Amendment.8 In opposing summary judgment, Deters framed his survival and wrongful death action solely

in terms of an excessive force claim. He does the same on appeal. Our discussion is therefore

limited to deciding whether the plaintiffs raised a genuine issue of material fact concerning their

claim of excessive force in the use of the roadblock. See Vaughner, 804 F.2d at 877 n. 2; Hobbs,

752 F.2d at 1082. Accordingly, summary judgment on the plaint iffs' federal cause of action based upon Deters's alleged

excessive force was proper.

In their survival and wrongful death action under Louisiana law, the plaint iffs again claimed

that Deters used excessive force in attemptin g to arrest the decedent. 8 Article 2315 provides that

"[e]very act whatever of man that causes damage to another obliges him by whose fault it happened

to repair it." La.Civ.Code Ann. art. 2315. " "Fault' as used in Article 2315 encompasses more than

negligence. It is the breach of a duty owed by one party to another under particular circumstances

of a given case." W

illiams v. Louisiana Mach. Co., Inc., 387 So.2d 8, 11 (La.App. 3d Cir.1980).

Because Deter's conduct occurred during the course of an attempted arrest, the applicable standard

of care is one of reasonable force. S ee La.Code Crim.Proc.Ann. art. 220 (West 1991) ("The person

making a lawful arrest may use reasonable force to effect the arrest...."); s ee also Kyle v. City of New

Orleans, 353 So.2d 969, 973 (La.1977) (stating that "[w]hether the force used is reasonable depends

upon the totality of the facts and circumstances in each case"). In opposing summary judgment on

t heir excessive force claim, the plaintiffs argued that "Deters's speed prior to the collision and his

distance from Rosado are material facts that are in dispute." Record on Appeal vol. 2, at 196j. We

disagree. The summary judgment record shows that the only force used in attempting to arrest the

decedent was the roadblock. As we have already pointed out, the record demonstrates that Deters

did not know of the roadblock until moments before the collision. Consequently, t he issues of

Deters's speed and distance from the decedent—considered in isolation from the roadblock—are not

material to the ultimate issue of excessive force. Because the plaintiffs have not set fo rt h specific

facts demonstrating a material issue regarding the reasonableness of the force exerted by Deters, we

hold that summary judgment on the plaint iffs' state action based upon Deters's alleged excessive force

was proper.

B9 See Peteet v. Dow Chem. Corp., 868 F.2d 1428, 1431 (5th Cir.1989) (stating that "district

judges and appellate courts must carefully review the expert's testimony to ensure that the expert

has the necessary qualifications and a sufficient basis for his opinion"); In re Air Crash Disaster

at New Orleans, Louisiana, 795 F.2d 1230, 1234-35 (5th Cir.1986) ("Trial judges must be

sensitive to the qualifications of persons claiming to be an expert."); cf. Daubert v. Merrell Dow

Pharmaceuticals, Inc., --- U.S. ----, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (stating that "Rule

702 ... clearly contemplates some degree of regulation of the subjects and theories about which an

expert may testify"). The plaint iffs next contend that the district court abused its discretion by not admittin g

Katsaris's expert testimony. "A trial co urt's ruling regarding admissibility of expert testimony is

protected by an ambit of discretion and must be susta ined unless manifestly erroneous."

Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1109 (5th Cir.1991). Rule 702 of the Federal

Rules of Evidence provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand

the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge,

skill, experience, training, or education, 9 may testify thereto in the form of an opinion or

otherwise.

The district court refused to allow Katsaris to give his opinion on whether Benton backed his car into

the dec edent because the court concluded that Katsaris was not qualified as an accident

reconstructionist. The plaintiffs correctly concede that Katsaris's opinion on the location of Benton's

car before and after t he collision falls within the realm of accident reconstruction. They argue,

however, that the court erred in concluding that Katsaris was not qualified to testify in this area. We

disagree. As the district court pointed out, Katsaris was last qualified as an accident reconstructionist

in 1965. Since that time, Katsaris had not taken any refresher courses. Katsaris himself admitted that

he could not independently establish the necessary physical and mathematical bases for his opinion.

Based on these facts evincing Katsaris's lack of scientific, technical, or other specialized knowledge

in the area of accident reconstruction, we find no abuse of discretion in the district court's refusal to

allow Katsaris to offer his expert opinion on whether Benton backed his car into the decedent.

C

Lastly, the plaint iffs contend that t he jury's answers to the special interrogatories were

irreconcilable, and therefore that the district court was not authorized to enter judgment for Benton

and the City of DeRidder. "If answers to jury interrogatories are in irreconcilable conflict, then the10 By approving the interrogatory form, the plaintiffs conceded that Benton's conduct was in all

other respects reasonable. judge has no authority to enter judgment based upon those answers." B runner v. Maritime Overseas

Corp., 779 F.2d 296, 297 (5th Cir.), cert. denied, 476 U.S. 1115, 106 S.Ct. 1971, 90 L.Ed.2d 655

(1986); s ee also Fugitt v. Jones, 549 F.2d 1001, 1005 (5th Cir.1977). The plaintiffs have not shown,

and we cannot discern, how the jury's answers t o the special interrogatories were in irreconcilable

conflict. At most, the jury's answers indicate t hat Bent o n did not back his car into the decedent,

either intentionally or negligently, and that the decedent was not himself negligent. These answers

do not conflict as they reflect the jury's analysis of two independent and distinct matters: Benton's

conduct and the decedent's conduct. Stated differently, the jury's finding that Benton did not back

into the decedent did not preclude a finding that the decedent was not himself negligent.

The plaint iffs maintain that as a matter of law the jury had to assign fault to someone. We

disagree. To render a verdict for the defendants, the jury need only have found that Benton did not

back his car into the decedent. 10 Moreover, as the City of DeRidder points out, the jury may well

have thought that the decedent's attempt to elude Benton's car constituted intentional or willful

conduct. "Where there is a view of the case that makes the jury's answers to special interrogatories

consistent, they must be resolved that way." H arville v. Anchor-Wate Co., 663 F.2d 598, 604 (5th

Cir.1981). Because the jury's answers to the special interrogatories were not in irreconcilable

conflict, we hold that the district court had the authority to enter judgment for Benton and the City

of DeRidder.

III

For the reasons set forth above, we AFFIRM.