The opinion of the court was delivered by: AGUILAR
ROBERT P. AGUILAR, UNITED STATES DISTRICT JUDGE.
Plaintiffs in this action are the estate of Anton Ward, Anton Ward's parents, his sisters, his putative spouse Delissa Ann Ward, and her daughter Sabrina Prior. Delissa Ann Ward and Anton Ward's sisters were previously dismissed from this case and are not parties to the present motions. Defendants are the City of San Jose, the Chief of Police for the City of San Jose Joseph McNamara, and the three officers that shot and killed Anton Ward, Officers Renteria, Rodrigues, and Vasquez.
The Court has before it the various motions filed by the parties pertaining to the jury's verdict after Phase II of the trial of this case. The special verdict form returned by the jury at the close of Phase II included answers to two sets of questions. One set went to defendants' liability under 42 U.S.C. § 1983 and the other went to their liability under California's wrongful death statute. As to liability under 42 U.S.C. § 1983, the jury found all defendants to have violated Anton Ward's constitutional rights and that the violations caused his death. In the wrongful death section, the jurors answered "No" to the question of whether the shooting of Anton Ward was either intentional or unjustified. The jurors then found defendants to have been negligent, but that their negligence was not the proximate cause of Anton Ward's death. No question on whether defendants had acted recklessly was presented to the jury.
At the close of Phase III (the damages phase) of the trial, the defendant officers renewed their motion for judgment not withstanding the verdict and, in the alternative, requested a new trial. In addition, plaintiffs Delissa Ann Ward and Sabrina Prior filed similar motions.
The motions filed by the parties suggest that there are four alternative courses of action available to the Court. First, the Court could find the Special Verdict irreconcilably inconsistent and resubmit the case to the jury. Second, the Court could find the Special Verdict consistent and enter judgment on the verdict. Third, the Court could find the Special Verdict consistent and enter judgment notwithstanding the verdict. Finally, the Court could order that a new trial be conducted. Each alternative is discussed below.
A. RESUBMITTING THE CASE TO THE JURY
A Court is required to harmonize the answers on a special verdict, if possible under a fair reading of them, Gallick v. Baltimore and Ohio Railroad Co., 372 U.S. 108, 119, 9 L. Ed. 2d 618, 83 S. Ct. 659 (1963); Ortiz v. Bank of America NTSA, 852 F.2d 383, 388 (9th Cir. 1988), and must search for a reasonable way to read the verdicts as expressing a coherent view of the case. Toner v. Lederle Laboratories, 828 F.2d 510, 513 (9th Cir. 1987), cert. denied, 485 U.S. 942, 108 S. Ct. 1122, 99 L. Ed. 2d 282 (1988). If "there is a view of the case that makes the jury's answers to special interrogatories consistent, they must be resolved that way." Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364, 7 L. Ed. 2d 798, 82 S. Ct. 780 (1962).
If a special verdict is irreconcilably inconsistent, then no judgment can be entered. Brunner v. Maritime Overseas Corp., 779 F.2d 296 (5th Cir.), cert. denied, 476 U.S. 1115, 90 L. Ed. 2d 655, 106 S. Ct. 1971 (1986). An inconsistent verdict may be resubmitted to the jury, with additional interrogatories, for clarification of the inconsistency. Dickerson v. Pritchard, 706 F.2d 256, 259 (8th Cir. 1983); U.S. Industries, Inc. v. Touche Ross & Company, 854 F.2d 1223, 1240 (10th Cir. 1988).
It is defendants' position that the jury's answers can be harmonized by simply excluding two of the questions. While defendants' analysis is quite confusing, they seem to argue that the jury's answers are insufficient to support a § 1983 violation because there is no finding of causation. In addition, defendants contend that the jury's specific finding that the shooting of Anton Ward was justified
is controlling over the jury's more general finding that defendants violated Anton Ward's constitutional rights. Defendants conclude that the jury's remaining answers consistently establish a verdict in their favor on both the wrongful death and § 1983 claims.
Defendants are correct that the Special Verdict would be consistent if the Court simply ignored the jury's answers to the first two questions. However, the Court must look to all of the jury's answers in determining whether the verdict is consistent. It cannot simply ignore a jury's findings because it would be convenient to do so. The jury found that defendants caused the death of Anton Ward by violating his constitutional rights and the Court has an obligation to reconcile that finding with the other findings, if possible.
Defendants also argue that the jury's answers are inconsistent and the jury should be reconvened for further deliberations. First, defendants argue that the jury's finding that defendants' negligence was not the proximate cause of Anton Ward's death is inconsistent with its finding that defendants' violation of Anton Ward's constitutional rights caused his death. The jury's finding that defendants' negligent acts were not the proximate cause of Anton Ward's death does not translate, however, into a general finding that none of defendants' acts, including reckless conduct, were the cause of Anton Ward's death. See Miller v. Royal Netherlands Steamship Co., 508 F.2d 1103 (5th Cir. 1975); Malm v. United States Lines Co., 269 F. Supp. 731 (S.D.N.Y.), aff'd, 378 F.2d 941 (2d Cir. N.Y. 1967) ("Inconsistent jury verdicts upon different counts or claims are not an anomaly in the law, which at times recognizes a jury's right to an idiosyncratic position, provided the challenged verdict is based upon the evidence and the law."). In addition, Instruction No. 35, the sole causation instruction given to the jury, only defined proximate cause. Thus, the jury's finding that defendants' unconstitutional acts were the cause of Anton Ward's death was a finding of proximate causation. Accordingly, the jury's finding of no proximate cause in relation to the defendants' negligent conduct does not make the Special Verdict inconsistent.
Defendants also argue that a justified shooting is inconsistent with a finding that defendants violated Anton Ward's constitutional rights. While the jury's findings of a constitutional violation and a justified shooting would be inconsistent if this case only dealt with the use of excessive force in violation of the Fourth Amendment, See Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989), the jury was presented with evidence, and was instructed,
on the requirements of both the Fourth and Fourteenth Amendments. Plaintiffs' Fourteenth Amendment claim is unaffected by a finding that the shooting was justified and the jury is presumed to have found in favor of plaintiffs on this claim. Thus, the jury's answers can be reconciled on this basis.
Furthermore, the jury's finding of no liability under California's wrongful death statute is consistent with its finding of liability under § 1983. The jury was instructed that three types of conduct (grossly negligent, reckless, and intentional) can lead to liability under 42 U.S.C. § 1983. In contrast, the jury was presented with a verdict form addressing only two types of conduct (negligent and intentional) in relation to plaintiffs' wrongful death claims. Thus, the apparent anomaly between the jury's findings of § 1983 liability and no liability under California's wrongful death statute can be reconciled on the basis of a finding of reckless conduct.
While the jury made specific findings that the officers' act of shooting Anton Ward was either unintentional or justified and that the defendants' negligent acts were not the proximate cause of Anton Ward's death, the jury made no specific finding as to reckless conduct by defendants. Implicit within the jury's answer, then, is a finding of reckless conduct by defendants.
It is not inconsistent for the jury to have found that the defendants' reckless conduct was not also negligent conduct. Negligent and reckless conduct are wholly different kinds of conduct and mutually exclusive. Lynch v. Birdwell, 44 Cal. 2d 839, 848, 285 P.2d 919 (1955); Lambreton v. Industrial Accident Commission, 46 Cal. 2d 498, 503, 297 P.2d 9 (1956). "The difference between reckless misconduct and conduct involving only such a quantum of risk as is necessary to make it negligent is a difference in the degree of risk, but this difference of degree is so marked as to amount substantially to a difference in kind." Restatement (Second) of Torts, § 500, comment g (1965). The Court can and must find that this is the very distinction made by the jury here.
In conclusion, the Court must infer from the Special Verdict that the jury's answers to questions 1 and 2 are tantamount to a finding that defendants' reckless conduct in violation of the Fourteenth Amendment was the proximate cause of Anton Ward's death. Pursuant to the jury's Special Verdict, defendants are entitled to judgment on plaintiffs' wrongful death claim and plaintiffs are entitled to judgment on their § 1983 claim.
B. MOTIONS FOR JUDGMENT NOTWITHSTANDING THE VERDICT
Rule 50(b) of the Federal Rules of Civil Procedure provides, in relevant ...