OPINION AND ORDER
FRANKLIN S. VAN ANTWERPEN, UNITED STATES DISTRICT JUDGE
From July 10 to July 13, 1989, a jury trial was held before this court in the above-captioned matter. On July 13, 1989, the jury returned a verdict finding the defendant, the City of Philadelphia ("City"), liable to the plaintiff for violations of plaintiff's decedent's constitutional rights, pursuant to 42 U.S.C. § 1983, and also finding the City negligent. The jury also found police officer Albert Panati ("Panati") negligent, but not liable under the plaintiff's 42 U.S.C. § 1983 constitutional claims. The defendants have now moved for post-trial relief in the form of judgment notwithstanding the verdict and for a new trial. For the reasons given below, we find that the defendants' request for such relief must be denied.
Before discussing the law, we believe it is first necessary to set forth the basic facts in the instant case. On October 19, 1985, Daniel Simmons ("Simmons") was taken into custody near City Hall for public intoxication by the City police department. Simmons had had no prior convictions and was 24 years old. Although technically an arrest, the policy of the City set forth in Directive #128 is usually to release persons picked up for public intoxication to responsible parties or release them after they have sobered up without filing any formal criminal charges. At the time he was taken into protective custody, the decedent was crying, anxious and very intoxicated. The police officers tried to calm him down and transported him to the City's Sixth Police District. Upon arrival, Simmons was placed in the custody of Officer Panati, the Sixth District turnkey. Panati was told that Simmons had been upset and crying upon being taken into custody.
Once in the Sixth District, Simmons again became very emotional and confused. He expressed deep concern about his arrest and its consequences. In spite of his condition, the minor nature of his offense, and his inability to call his family, no one placed a call for him. After processing Simmons, Panati removed Simmons' belt and personal belongings and locked him in Cell No. 6 at approximately 5:00 a.m. No one else was in the cell block during the time Simmons was in custody. Although there were other jails in the City which were not totally empty, Simmons was not taken to one of them. Panati did not initially remove Simmons' shoe laces. According to Officer Panati, he removed Simmons' shoe laces approximately fifteen minutes after he was placed in the cell, because Simmons had untied them and they were flopping around. Aside from removing the shoe laces, no other steps were taken to protect Simmons.
Officer Panati's desk was in an adjacent area separated by a wall and a steel door. Panati was unable to see the cell block area from his work place and unable to see Simmons unless he physically entered the block and inspected his cell.
Panati maintained a log of the times he checked on prisoners. Such checks are to be made every fifteen minutes. Panati testified that, regardless of when he actually inspected the prison cells, he nevertheless wrote down that he inspected the cells at exactly every quarter hour. Panati also testified that his duties would sometimes take him away from the cell area and, at times, even outside the Sixth District building itself.
Panati further testified that during at least one hour of Simmons' incarceration, the decedent was very upset and periodically rattled the bars of his cell. Simmons remained unresponsive to any words spoken by Panati. Panati described Simmons' condition as being in a "stupor" with "glassy eyes". The entire time Simmons was in the cell, he remained standing at the cell door. His reactions ranged from confusion to hysteria.
Officer Panati found Simmons hanging from his cell at 6:38 a.m. Upon discovering Simmons' body, Panati cut him down and called for medical rescue. He, himself, however, did not attempt any type of medical resuscitation on Simmons. The police rescue did not arrive until 6:55 a.m., a full seventeen minutes after discovery of the body. At death, Simmons' blood alcohol content level was.24. Far from being "protective" - Simmons' custody was fatal. Simmons' mother has brought this suit against the City and Officer Panati for the death of her son.
In ruling on a motion for judgment notwithstanding the verdict, the trial court is obliged to consider the evidence in a light most favorable to the party prevailing with the jury. Accordingly, it must be assumed by the trial court that all conflicts in the evidence were resolved by the jury in favor of plaintiff's evidence. The plaintiff is also to be given the benefit of all favorable inferences which may be reasonably drawn from the facts proved. Moreover, the defendants' motion must be denied if, upon reviewing the evidence in the above described light, reasonable men could differ as to the conclusions to be drawn from the evidence. J.J. Farms, Inc. v. Cargill, Inc., 693 F.2d 830 (8th Cir. 1982); Mroz v. Dravo Corp., 293 F. Supp. 499 (W.D.P.A. 1968), aff'd 429 F.2d 1156 (3rd Cir. 1970).
A court cannot grant a judgment n.o.v. based on a ground not raised in a party's motion for directed verdict.
[A] motion for judgment n.o.v. based on a ground not raised in a party's Motion for Directed Verdict, cannot be granted. . . . The Third Circuit has interpreted strictly the requirements of F.R.Civ.P. 50(b) that a motion for directed verdict after the presentation of all evidence is a prerequisite to a motion for judgment n.o.v. . . . . Indeed, to entertain the plaintiff's motion, might deprive defendant of its Seventh Amendment rights to a trial by jury. . . .
Sharp v. Coopers & Lybrand, 457 F. Supp. 879, 885 (E.D. Pa. 1978) (citations omitted), aff'd, 649 F.2d 175 (3d Cir. 1979), cert. denied, 455 U.S. 938, 71 L. Ed. 2d 648, 102 S. Ct. 1427 (1982). Furthermore as a general rule, although exceptions are now unnecessary, to properly preserve an issue a party must either object or otherwise inform the court of the action which a party desires. Fed.R.C.P. 46. Bucy v. Nevada Construction Co., 125 F.2d 213 (9th Cir. 1942). Similar more specific rules apply to the court's rulings on evidence, Fed.R.Evid. 103, and instructions to the jury, Fed.R.Civ.P. 51.
Most of the arguments raised in the defendants' motions for judgment n.o.v. and new trial were not raised in defendants' motion for directed verdict, or for that matter, raised at any point during the course of the trial. Defendants moved for a directed verdict "for the reasons stated in defendants' Trial Brief." Therefore, any arguments raised by defendants in the instant motions and not appearing in the trial brief are waived. We can find only two arguments raised in the defendants' motion for post-trial relief that were raised in the motion for directed verdict. These are: that the plaintiff's claim for violation of 42 U.S.C. § 1983 must fail because of lack of evidence regarding the City's conduct and the "deliberate indifference" standard mandated by City of Canton v. Harris, 489 U.S. 378, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989), and that the defendants owed no duty to Simmons, since no "special relationship" existed between the decedent and the police. We must treat all other motions as waived. Nonetheless, we will proceed to address not only these arguments, but also all of the others, and to explain why even if they had been properly raised they would not have succeeded.
Basically, the defendants' arguments in favor of their motions appear to consist of the following premises: (1) that the evidence presented in the instant case did not reach the "deliberate indifference" standard mandated by City of Canton, 489 U.S. 378, 109 S. Ct. 1197, 103 L. Ed. 2d 412; (2) that the jury reached an inconsistent verdict in its response to Question One on the verdict sheet; (3) that the jury did not find a causal relationship between the decedent's death and the conduct of the City and the conduct of Officer Panati; (4) that no pendent state law negligence claims were alleged or proved upon which an award could rest; (5) that the City is immune from suit for negligence; and (6) that it was error to permit a photograph of the plaintiff's decedent to go to the jury.
I. The Evidence and the "Deliberate Indifference" Standard
The defendants argue that the plaintiff failed to establish that the City was deliberately indifferent to the serious medical needs of Daniel Simmons, the plaintiff's decedent. The defendants do recognize that the instant case comes within the ambit of City of Canton, 489 U.S. 378, 109 S. Ct. 1197, 103 L. Ed. 2d 412 and, generally, Monell v. New York City Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). In City of Canton, the United States Supreme Court accepted "deliberate indifference" as the standard in cases under 42 U.S.C. § 1983 alleging inadequate training of municipal personnel. In the City of Canton decision, the Court considered inadequate training in the context of municipal policy:
Monell's rule that a city is not liable under § 1983 unless a municipal policy causes a constitutional deprivation will not be satisfied by merely alleging that the existing training program for a class of employees, such as police officers, represents a policy for which the city is responsible. That much may be true. The issue in a case like this one, however, is whether that training program is adequate; and if it is not, the question becomes whether such inadequate training can justifiably be said to represent "city policy". It may seem contrary to common sense to assert that a municipality will actually have a policy of not taking reasonable steps to train its employees. But it may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. In that event, the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury.
Id. 109 S. Ct. at 1205 (footnotes omitted).
In the instant case, the plaintiff presented sufficient evidence with respect to lack of proper training vis-a-vis intoxicated detainees to support a verdict of deliberate indifference.
Plaintiff's experts, Joseph Rowen and Dr. Edward Guy both testified that Simmons fit the psychological profile of an individual who was at high risk to commit suicide, i.e., he was intoxicated, young, a high school graduate, employed, agitated, crying, unresponsive, and exhibiting mood swings. Dr. Guy further testified that 99 per cent of all suicides take place in isolated cells and that the periodic checks, as allegedly made by Officer Panati, are nowhere near sufficient.
Joseph Rowan, an expert on corrections, testified for the plaintiff that standards established by the Commission on Accreditation of Law Enforcement Agencies (CALEA) and the American Correctional Association, which were available and known to the City prior to the instant incident, recognize that intoxicated detainees are high risk suicide candidates and should be under observation at all times. Moreover, published standards detailing procedures for identifying suicidal detainees and preventing suicides were also available and known to the City prior to this incident. In addition, Mr. Rowan cited a number of cities and states which had instituted successful suicide prevention plans prior to the death of Daniel Simmons.
Both experts testified that intoxicated detainees, especially those exhibiting the symptoms of Simmons, should be observed at all times. Mr. Rowan based his testimony on CALEA standard 72.5.4 which requires intoxicated arrestees to be under observation at all times. Both experts further testified that even a layman with minimal training could observe intoxicated arrestees and recognize suicidal symptoms.
Both experts further testified that constant observations and medical care could be accomplished in a number of ways. They noted that television monitoring, physical restraints, multiple celling, use of other personnel (such as other inmates or volunteers or police aids), use of other city agencies could all be implemented. Architectural changes could also be made at low cost that would allow staff personnel to be present within the cell area or a special plexiglass "suicide prevention cell" could be installed.
The City's own police officers admitted that they had no training in suicide prevention. Officer Panati said specifically that he had no such training. Sergeant Heran of the City police department's research and development department could not say for sure whether police officers receive any police academy training regarding suicide.
Further testimony regarding the City's actual knowledge of suicidal tendencies was heard from Simmons' stepbrother, Reginald Rosemond. Mr. Rosemond testified that shortly after the suicide a Police Officer named LaGara stated to him that Simmons had been acting peculiarly while in detention and, therefore, they took his shoe laces from him. The officer also stated to him that people who are intoxicated are at a higher risk to commit suicide.
In addition to the above testimony on training and standards, various statistics were introduced by the plaintiff which were compiled by the City through the office of Sergeant Heran. These statistics showed that twenty people had committed suicide in City lock-ups between 1981 through 1985. Simmons was number twenty. Of those twenty, fifteen persons were intoxicated. Moreover, the plaintiff introduced further testimony showing the number of attempted suicides in City lock-ups.
Dr. Guy, who is a forensic psychiatrist and head of psychiatry at the City prison system, further testified that the City was aware in 1981, and prior thereto, of a correlation of people who were intoxicated and committing suicide and that the City had requested him to participate in a training program and to make recommendations.
Dr. Guy, who had made a study of Philadelphia prison detainees, stated that persons who are most likely to commit suicide were intoxicated or on drugs, somewhat better educated, employed, and showed signs of emotional disturbance and agitation. He noted that intoxication is a "red flag warning" of a potential suicide. Dr. Guy also testified that he told the City in 1981 that changes in procedures would save lives. He stated that persons meeting the above-stated criteria must be placed in constant observation, or monitored, or physically restrained when neither of the other two alternatives are available. He further recommended that some simple architectural changes be made so the staff would be present within the cell area so that no detainee could be left in isolation. He also informed the City that all officers should be trained in suicide prevention and detection. All of this information was communicated to the City police department in 1981, four years before Simmons' death. Finally, Dr. Guy testified that due to the mental state of the decedent, he had a diminished mental capacity and was at high risk to commit suicide. Both experts testified that if Simmons had been constantly observed by various means, his suicide would have been prevented.
Both experts testified that the conduct and actions of the City and of Officer Panati were negligent and constituted deliberate indifference. Dr. Guy based his opinion on his knowledge as a forensic psychiatrist treating inmates and on studies he had conducted. Mr. Rowan based his opinion on his expertise in corrections and on studies with respect to jailhouse suicides. Both experts testified that Daniel Simmons was at high risk to commit suicide and that his suicide was foreseeable and preventable.
The jury had before it all of the evidence discussed above. We believe that it could well have found that the City-defendant had transgressed the "deliberate indifference" standard when it came to meeting the serious medical need of the plaintiff's obviously intoxicated decedent. Accordingly, we find no merit in this argument advanced by the defendants in support of their motion.
II. Alleged Inconsistency on the Verdict Sheet
Question One on the verdict sheet in the instant case reads as follows:
INDICATE WHETHER OR NOT YOU FIND THAT UNDER SECTION 1983 OF TITLE 42 U.S. CODE THE DEFENDANT OFFICER [PANATI] ACTED UNDER COLOR OF THE AUTHORITY OF PENNSYLVANIA TO DEPRIVE THE DECEDENT OF HIS CONSTITUTIONAL RIGHTS.
The jury responded "No" to this question, but went on to find Panati negligent. The defendants argue that, by answering "No", the jury failed to find either of the essential elements required to maintain an action under 42 U.S.C. § 1983, i.e., conduct by a person acting under color of state law and conduct which deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. We do not believe that the jury's verdict was "inconsistent". At trial, there were two defendants and two separate theories of liability presented. All that this "No" answer on the part of the jury means is that the jury did not find Officer Panati liable under the constitutional theory advanced pursuant to 42 U.S.C. § 1983.
We believe that this verdict is completely consistent with the facts presented at trial. The jury could conclude that Officer Panati's own actions were negligent, without rising to a constitutional standard of deliberate indifference. There were sufficient facts to support the jury's verdict of negligence: i.e., Officer Panati's inexact recordkeeping showed that he did not properly inspect or care for the decedent; he failed to recognize Daniel Simmons' physical and emotional state and exercise ordinary care; he failed immediately to remove flopping shoelaces or recognize what they portended; he rendered no assistance to the decedent despite his stupor, his rattling of the bars, and his unresponsiveness. He failed to provide any medical attention or telephone relatives concerning decedent's condition. Officer Panati admitted at trial that he had no training regarding detection and prevention of suicides. Thus, it was up to the jury to decide whether the officer's conduct amounted to negligence and/or rose to a level of deliberate indifference. Here, the jury concluded that Panati himself was negligent.
The jury could also separately conclude that the City was deliberately indifferent, based on the facts previously discussed. It is well settled that local governing bodies may be sued directly under § 1983 for monetary relief. Monell, 436 U.S. at 690. The Supreme Court has stated:
It is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.
Id. at 694.
In the instant case, the official policies, custom and actual procedures used by the City, its police officers generally, and those who had contact with Daniel Simmons particularly, led directly to Simmons' death. When the jury found a § 1983 violation on the part of the City, it did so because of the City's own conduct, not because of any kind of respondeat superior liability -- which liability is specifically forbidden under Monell, 436 U.S. at 691.
Rather than being inconsistent, the jury's verdict demonstrates a full understanding of the facts and the law. Rather than finding all defendants liable on all counts, the jury recognized that Panati's behavior was negligent without rising to a level of deliberate indifference. We find no "inconsistency" at all.
The defendants also argue that this "No" response of the jury to Question One means that the jurors were really finding that the officer was not acting under color of state law and, thus, that no § 1983 liability can attach to the City. At trial, however, there was no issue regarding whether the police officer involved in this incident acted under color of state law. During the jury instruction conference, defendants' counsel agreed that Officer Panati was acting under color of state law and, furthermore, this court charged the jury and explained the meaning of acting "under color of state law." Moreover, there was not any objection to the charge and verdict slip with respect to any instructions and questions relating to this principle. We, therefore, find this contention of the defendants to be without merit.
III. Alleged Lack of Causal Relationship
The defendants further contend that the jury failed to find a causal relationship which links the conduct of the City and Officer Panati with the death of Daniel Simmons. Not only did this court charge the jury on proximate cause and substantial legal cause but also, Jury Question Five specifically asked the jury to answer this very question:
5. INDICATE FOR THE DEFENDANT OFFICER YOU HAVE ANSWERED "YES" IN QUESTION 1 OR QUESTION 2, OR THE CITY IF YOU HAVE ANSWERED "YES" IN QUESTION 3 OR QUESTION 4, WHETHER OR NOT SUCH DEFENDANTS' ACTIONS WERE A LEGAL CAUSE OF ANY HARM TO THE DECEDENT.