Metropolitan News-Enterprise


Friday, November 28, 2003


Page 1


1.3 Million Damage Award in Suit Over Police Restraints Overturned


By KENNETH OFGANG, Staff Writer/Appellate Courts


A damage award of $1.3 million to the parents of a suspect who died in Sheriff’s Department custody has been overturned by this district’s Court of Appeal, which said the amount was excessive.

The Tuesday ruling by Div. One was a partial victory for county lawyers, who argued the Sheriff’s Department had no liability in the 1998 death of Dwayne Nelson, who had just been released from prison.

Justice Miriam A. Vogel, writing for the Court of Appeal, said there was sufficient evidence of negligence to support the Los Angeles Superior Court jury’s finding of liability, and that the county is entitled to a new trial only on the amount of damages.

Nelson stopped breathing after being placed face down by deputies using a technique called the Total Appendage Restraint Procedure, or TARP, otherwise known as a “Ripp Hobble” restraint or hog-tie.

The arresting deputies, who were responding to calls about a “man with a gun,” said they removed Nelson from their vehicle and used the restraint because the suspect was kicking and banging at the doors and windows. Nelson was transported to a hospital after he stopped breathing, but was dead on arrival.

County’s Evidence

The county argued that the deputies acted reasonably, and that restraint was not the cause of Nelson’s death. County lawyers presented evidence that Nelson could have died as a result of heart trouble, perhaps exacerbated by drug use.

The plaintiffs rebutted that view with expert testimony by an experienced pathologist, who said that Nelson died of “positional asphyxia”—that the pressure against his chest caused by the restraint procedure stopped him from breathing.

The county contended that the pathologist was not competent to render that opinion because he was not present at the autopsy. But Vogel noted that the witness—who had performed more than 1,500 autopsies—had viewed the Sheriff’s Department tape of the fatal incident, had reviewed Nelson’s Department of Corrections medical records, and had reviewed deposition testimony by several of the sheriff’s deputies.

“No more was required,” the justice declared.

The jury found the county 65 percent responsible, and Nelson 35 percent responsible, for Nelson’s death. It fixed damages at $2 million.

The court reduced the damages by 35 percent based on comparative negligence and entered judgment for $1.3 million.

That award was excessive, Vogel said, because there was no way a rational juror could have concluded that the plaintiffs suffered $2 million in compensable losses.

Recovery in California wrongful death cases, the jurist explained, is generally limited to the value of financial support and services and the like which were being provided by the decedent, and to the pecuniary value of the decedent’s “society and companionship.”

Surviving family members cannot, the justice explained, be compensated for their own emotional grief resulting from the death.

In Nelson’s case, Vogel said, there was no evidence that the decedent provided financial support to his parents or was likely to do so in the future, or that the decedent and the parents had a close relationship.

Jurist’s Reasoning

The testimony, the jurist explained, was that Nelson had not seen either of his parents in 20 years, and that while he occasionally spoke to them by phone or sent cards, neither of them knew his address or phone number at the time of his death and neither knew that he was a drug addict with an extensive criminal record.

“We do not doubt the parents’ expressions of love, but we are unable to say that a rational person would value their lost ‘comfort, society, and companionship’ at $2 million,” the justice wrote. “The inescapable conclusion is that the jury included in its calculations some measure of damages for the parents’ emotional distress, or some amount intended to punish the County for its conduct.”

The plaintiffs were represented by Leo James Terrell. The county was represented on appeal by Principal Deputy County Counsel Dennis M. Gonzales and by Timothy T. Coates and Alan Diamond of Greines, Martin, Stein & Richland.

The case is Nelson v. County of Los Angeles, 03 S.O.S. 6030.


Copyright 2003, Metropolitan News Company