June 16, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1208
ANDREW SMITH,
Plaintiff, Appellant,
v.
BRIAN HITCHCOCK,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Torruella, Selya and Cyr,
Circuit Judges.
Andrew G. Smith on brief for appellant.
Neal H. Sahagian and O'Neil, DiCicco, Sahagian & Powers on
brief for appellee.
Per Curiam. Plaintiff-appellant Andrew Smith
appeals the district court's direction of a verdict for
defendant-appellee, Brian Hitchcock, on appellant's
intentional infliction of emotional distress claim. We
summarily affirm.
In June 1990, Smith made an unauthorized entry upon
the property of Hitchcock, a member of the Marblehead Police
Department. During the entry Smith destroyed some property
owned by Hitchcock. Hitchcock pursued Smith and, after a
brief struggle, apprehended him a short distance away. Smith
testified that, after being apprehended and after all
resistance had ceased, he was punched in the face by
Hitchcock five times. Hitchcock, and other witnesses, denied
that any punching had occurred.
Smith asserted three claims at trial. First, he
alleged that his federal civil rights, pursuant to 42 U.S.C.
1983, had been violated by the use of excessive force
during the course of his arrest. Second, he asserted a
common law claim of assault and battery. Third, he claimed
that Hitchcock had intentionally inflicted emotional distress
upon him. All claims were predicated on the allegation that
Hitchcock had punched Smith after he had been apprehended.
At the close of Smith's presentation of evidence,
the court granted Hitchcock's motion for a directed verdict
on the claim of intentional infliction of emotional distress.
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The jury subsequently found for Hitchcock on the other two
claims. Smith appeals only the directed verdict.
To recover on a claim for intentional infliction of
emotional distress under Massachusetts law, a plaintiff must
show "a defendant intended to inflict emotional distress or
knew or should have known that emotional distress was a
likely consequence of his conduct, . . . his conduct was
extreme and outrageous . . . and . . . his conduct caused the
plaintiff severe emotional distress." Nancy P. v. D'Amato,
401 Mass. 516, 520, 517 N.E.2d 824, 827 (1988). Smith's
appeal fails for two reasons.
First, Smith did not present sufficient evidence to
support a jury verdict on this claim since he did not
introduce any evidence that he suffered severe emotional
distress from the alleged punching. Second, in light of the
jury charge, the verdicts for Hitchcock on the excessive
force and assault and battery claims necessarily were
predicated on a finding that no unreasonable force was used
by Hitchcock during the course of the arrest, in other words,
that Hitchcock's conduct was not "so outrageous in character,
and so extreme in degree, as to go beyond all possible bounds
of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community." Foley v. Polaroid
Corp., 400 Mass. 82, 99, 508 N.E.2d 72, 82 (1987) (defining
"extreme and outrageous" conduct) (quoting Restatement
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(Second) of Torts 46 comment d (1965)). These verdicts,
therefore, preclude a finding of intentional infliction of
emotional distress and render harmless any error which might
have occurred in the direction of the verdict for Hitchcock.
See Senra v. Cunningham, 9 F.3d 168, 174 (1st Cir. 1993)
(jury finding of no excessive force precludes finding of
malicious prosecution and renders error in directed verdict
harmless); see also Dean v. Worcester, 924 F.2d 364, 369 (1st
Cir. 1991) (summary judgment required on claim of intentional
infliction of emotional distress where summary judgment
appropriate on claims of excessive force and assault and
battery).
Affirmed. See 1st Cir. Loc. R. 27.1.
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