concurring in part and dissenting in part:
In my view Bovee’s testimony established a prima facie case that LaSage used more force than was reasonable in effecting Bo-vee’s arrest. In making such a determination the court was required to view his testimony in a light most favorable to him and to draw every reasonable inference therefrom to the benefit of his case. Correa v. Stephens, 429 P.2d 254, 256 (Alaska 1967).
Bovee, a man 5'6" tall and weighing 155 pounds, was physically resisting being removed from a store by two police officers when Officer LaSage arrived on the scene. LaSage grabbed Bovee’s right arm and attempted to pin it behind his back, at which point Bovee went rigid. LaSage then struck Bovee on the temple with his elbow. This dazed Bovee so he “pretty much gave in.” • LaSage then pushed Bovee’s arm high up beyond his back, forcing Bovee up on his toes. When Bovee complained that LaSage was “really straining” his arm, LaSage cursed and said he didn’t care if he broke it. The officer then pushed Bovee face down onto the floor and placed handcuffs on his wrists. They then rolled Bovee onto his back and LaSage frisked him while another officer knelt on Bovee with one knee on his neck and the other in his stomach, so that Bovee had difficulty in breathing.
I agree that as to LaSage the fact that there may not have been cause for Bovee’s arrest is not relevant. LaSage was summoned to aid fellow officers in making an arrest and it was not his duty to inquire first whether it was justified. Nonetheless, LaSage had a duty to use no more force than was reasonably needed to effect Bo-vee’s arrest. A reasonable juror could have concluded, in my opinion, that the line between reasonable and excessive force was crossed in this case.
However, the fact that the trial court erred in determining and announcing that a prima facie case did not exist does not mean that Bovee can obtain appellate review of this error. A party who consents to a judgment waives his right to appeal from it. 9 J. Moore, B. Ward & J. Lucas, Federal Practice ¶ 203.06, at 3-27 (1982). The fact that such consent may have been prompted by an erroneous adverse ruling has not been regarded as cause sufficient to justify relief from this rule. See Pipeliners Local Union No. 798, Tulsa, Okla. v. Ellerd, 503 F.2d 1193, 1199 (10th Cir.1974); Stewart v. Lincoln-Douglas Hotel Corp., 208 F.2d 379, 381 (7th Cir.1954). We have recognized an exception to this rule in criminal cases. An appeal may be taken from interlocutory rulings preceding a plea of guilty where the right to appeal is expressly reserved and the parties stipulate with court approval that the issue reserved for appeal is disposi-tive. Oveson v. Municipality of Anchorage, 574 P.2d 801, 803 (Alaska 1978). However, that exception has not been extended to civil cases. Further, Bovee did not attempt to reserve his appellate rights. I conclude, therefore, that by agreeing to a dismissal of his case, Bovee has waived his right to contest on appeal the actions of the trial court that led to the dismissal.
Although this result may be seen as harsh, litigation is not always easy. When a case goes awry because of arguably erroneous rulings of the trial judge, a difficult choice between continuing to litigate in the hope of obtaining relief on appeal or dropping the case must be made. Bovee chose the latter alternative rather than the former, and they are mutually exclusive.
I agree with the majority opinion that the judgment with respect to costs must be reduced. I would remand the award of attorney’s fees for redetermination since the court may have premised the award on its erroneous determination that Bovee’s case was frivolous.