concurring in part, dissenting in part.
I concur in our adherence to the footnote in Matzker. With all respect, however, I cannot escape the conclusion that the evidence presented a jury question whether, immediately after arrest and at the police station, the defendants had reason to suspect that plaintiff Davis’s injuries were serious.
Mr. Davis testified that at the time of arrest Officer Jones hit him on the left side of the head with an object similar to a flashlight, tr. at 45-46, and slammed his head down on the hood of the police car, tr. at 47-48. He testified he was bleeding from the place where his head had been struck and from his elbow. Tr. at 48-49. Mrs. Alexander, a friend who observed him hit the hood of the car, testified that she “could see directly in his face and there was blood.” Tr. at 257. At the police station, Davis testified, there was blood “on the left side of my face coming down like this. Some in my hair.” He indicated the area between his left ear and left eye. Tr. at 54. He testified that the officers told him to wipe the blood off his face before he was photographed. Tr. 53-54. He was taken to a washroom and he washed the blood off. After Mr. Davis was taken back to be photographed, “some blood had started dripping down my face and they took me back to the washroom to wash my face off again.” Tr. at 55. When the picture was taken, “I was still bleeding but it wasn’t blood coming down my face at the time.” Tr. at 55. According to Davis, it was about this time that he requested and was denied medical attention. Tr. at 55. Counsel stipulated that “During his arrest, Mr. Davis suffered various injuries including an injury to his left elbow and an open wound laceration to the left side of his skull.” Tr. at 301. The testimony of the three defendants showed they were aware of the blood on his head, but tended to minimize the quantity. Although the jury did not believe the defendants’ testimony that medical attention had been offered and rejected, the jury could have believed that the defendants remembered the wound as appearing serious enough that in hindsight an offer of treatment would have been a good idea.
Viewing the evidence in the light most favorable to the verdict, I do not agree that the doctor’s description of the wound two days later is conclusive that at the time of arrest the defendants did not have reason to suspect the wound was serious. Perhaps it is common knowledge that a superficial scalp wound may bleed profusely, but that does not prevent anxiety while the wound is bleeding.
I agree with Judge Shadur that the evidence posed a question for the jury: “did the defendants have reason to suspect that the injuries were serious?” Tr. at 393. I would affirm the judgment.