dissenting:
In my view, the record does not support the trial court’s conclusion, adopted by the majority, that the jury’s verdict for the District on the negligence count means necessarily that the jury rejected Holder’s excessive force theory of liability. Based on the parties’ stipulation and under the trial court’s instructions to the jury, a verdict for the District on Holder’s sole theory of negligence required the jury to find only that Holder was not an unarmed, unintended victim of the shooting. Thus, in returning a verdict for the District on the negligence count, it was unnecessary for the jury to reach Holder’s alternative assault and battery theory of liability on which the jury deadlocked. To the extent that there was confusion in the instructions which may have misled the jury by conveying the impression that the jury was to consider the excessive force instructions in connection with Holder’s negligence claim, in spite of the expressed intentions and extensive efforts of the parties and the trial court to formulate instructions delineating the excessive force theory separately as a part of the assault and battery claim, the trial was unfair. Therefore, to prevent manifest injustice, a new trial should be ordered on the assault and battery count on which the jury reported that it could not reach a verdict. See Bell v. Westinghouse Elec. Corp., 483 A.2d 324, 327 (D.C.1984).
I.
It is clear from the record that appellant Holder proceeded on alternative theories of liability. The first was based upon negligence for which the District of Columbia (District) stipulated liability if the jury found only that Holder had no gun at the time that the police officer shot him.1 Holder’s theory was that negligence was established if it was shown that he was an unarmed bystander whom the officer shot. Since the government conceded this point, the trial court, with the consent of the parties, dispensed with the customary negligence instructions. The parties agreed that the court should instruct the jury that “[i]f you find that the Plaintiff was not the gunman that Officer Walker intended to shoot, then in the circumstances of this case, you must find the defendant District of Columbia hable.”2 The *746court and the parties stated explicitly, more than once, that this instruction was sufficient to allow the jury to determine the liability question under Holder’s negligence theory, given the District’s stipulation. Indeed, the District suggested that the trial court give the converse of this proposition, which the District’s counsel formulated as “[i]f you find that Officer Walker intended to shoot the Plaintiff [Holder], then you must find against the Plaintiff [Holder] ... however, apparently by oversight, the converse was not given.3
Holder’s second theory of liability was assault and battery premised upon the officer’s use of excessive force under a formulation set forth in Tennessee v. Garner, 471 U.S. 1, 11-12, 105 S.Ct. 1694, 1701-02, 85 L.Ed.2d 1 (1985).4 See District of Columbia v. Tinker, 691 A.2d 57, 64 (D.C.1997) (“‘Excessive’ force is a term of art denoting an act of assault or battery by law enforcement officials committed in the course of their duties.”) The factual predicate for this theory was that the officer shot Holder in the back as he fled. Although it was clearly intended by the court and the parties that only these two theories of liability be submitted to the jury, the majority holds that the instruction as given failed to accomplish the intended purpose. While acknowledging much confusion in the instructions, the majority must conclude that the jury understood them to mean that there were two theories of negligence in addition to the assault and battery claim. For only then can the conclusion be reached that the jury’s verdict in favor of the District on the negligence count under the parties’ stipulation (shooting of an unarmed bystander) also covered Holder’s assault and battery (excessive force) claim.5 My review of the record and considerations of fairness lead me to conclude otherwise.
Although the record is itself somewhat confusing, as I read it, the trial court proposed the language from Garner to cover Holder’s second theory of liability, assault and battery (excessive force). The equivalent language is found in the trial court’s instruction to the jury, which it acknowledged was “literally out of the [Garner] case.”6 The court and counsel agreed that this Garner language should be given after the brief special negligence instruction which was developed in light of the District’s stipulation. Since the trial court had decided to submit to the jury the excessive force issue and “whether or not [the officer] was justified to shoot a fleeing felon,” the District requested an instruction that “a police officer is required to make an arrest when there is a *747crime committed in Ms presence based on the D.C.Code and various regulations.”7 The parties also agreed upon portions of standard jury instruction, No. 18-5, involving the use of force in malting an arrest and prohibiting resistance.8 As a result of further discussions preliminary to instruction, it was resolved that the court would also give standard instructions on assault and battery and transferred intent in connection with the excessive force claim. As agreed by the parties, these instructions followed the Garner language.
The first liability instruction, set forth in the first paragraph, requires oMy that the jury determine whether Holder was or was not the gunman in order to resolve whether the District was negligent. The jury was instructed not to proceed further if it found for Holder on tMs first liability question. The jury sent a note wMch obviously addressed the single sentence instructing the jury on Holder’s negligence theory. The note read as follows:
Re: ¶ 1—Negligence Count
Does the word gunman in this context mean that we find that Holder was the gunman or that Walker perceived that Holder was the gunman?
It appears from this note that the jury understood the controlling negligence instruction to be the single sentence as the court and the parties intended. The jury indicated by their caption that the negligence count was covered in paragraph one about which they were inquiring. Moreover, in response, the court reinstrueted the jury on the negligence theory as follows:
So, you could rephrase the first paragraph as if you find that the Plaintiff [Holder] did not have a gun when Officer Walker shot Mm, then in the circumstances of tMs case, you must find that the District—that the defendant District of Columbia is liable.
The court then repeated the instruction:
If the Plaintiff did not have a gun, if that’s what you find, that the Plaintiff did not have a gun when Officer Walker shot him, then you must find the District of Columbia.... You must find the District of Columbia liable.
Given the instructions and reinstructions, there can be little doubt that the jury was informed that its consideration of the negligence count was at an end once it determined whether Holder had a gun when the officer shot him. Since we presume, at least where the instructions are clear, that the jury follows the instructions,9 their verdict necessarily should reflect the answer to the single question dispositive of the negligence claim.10
The connective phrase, “[i]f on the other hand,” wMch precedes the Garner formulation, although possibly misleading, does not alter that substantively two separate theories were presented for the jury’s consideration and that one of them commenced in paragraph two of the instruction. In spite of tMs connecting phrase, the first two paragraphs of the mstruetions are not converse propositions, as the majority suggests, insofar as the grounds for liability are stated.11 The first paragraph, wMch the jury could have perceived properly as the negligence instruction, requires oMy a finding that Holder was not the gunman in order to find in his favor. The second paragraph requires for a verdict in favor of the District, a finding that the officer reasonably believed that Holder was a fleeing felon, that the use of deadly force was necessary to prevent his escape, and that Holder posed a significant threat of death or *748physical injury to the officer or others. This was the Garner theory for recovery for the use of excessive force. The succeeding paragraphs in the instructions may be viewed to explicate the initial excessive force paragraph by outlining the officer’s arrest responsibilities, the prohibition against a citizen’s resistance, and the amount of force which may be used. Looking at the instructions as a whole, as we are required to do, without singling out separate phrases, it is reasonable to say that the jury was instructed to consider the negligence theory under paragraph one and the Garner theory under the remaining paragraphs. See Minor v. United States, 647 A.2d 770, 773 (D.C.1994); Powell v. United States, 485 A.2d 596, 601 (D.C.1984).
The jury’s subsequent note evidences that they understood their obligation under the instructions to consider separately an assault and battery claim based on excessive force. After their initial note concerning paragraph one, the negligence count, they sent another note “[rjegarding the assault & battery charge.”12
The jury sent a note on March 16, 1994, indicating that they had reached a verdict on the negligence count, but that they were deadlocked on the assault and battery count. The court took their partial verdict finding for the District on the negligence count. It also gave an Allen charge.13 Jury deliberations resumed the next day, and the jury sent a note in the morning seeking clarification about the elements of damages. Later that afternoon, the jury reported that it was still deadlocked on the assault and battery count, and the trial court declared a mistrial.
II.
While jurors are presumed to follow the court’s instructions, such an assumption cannot be made fairly with respect to confusing instructions. Here, much confusion surrounds whether the Garer language in the second paragraph was intended to embody the concept of excessive force as a part of the negligence claim. Only the majority’s careful legal analysis of the relationship or similarities which can exist between excessive force claims as elements of negligence or of assault and battery leads it to determine that the verdict on the negligence count also covered the assault and battery claim.14 The jury did not have the benefit of the careful delineation of the two causes of action which the majority makes here. The efficacy the presumption that jurors follow the instructions dissipates where the instructions are phrased in terms which the jurors are not likely to understand. See Thompson v. United States, 546 A.2d 414, 426 (D.C.1988). I am not persuaded, as my colleagues are, that the total responsibility for the confusion in the instructions should be upon Holder. The record reflects that the parties and the court made genuine efforts to put forth instructions which would allow the jury to consider the negligence count based upon the parties’ stipulation and the assault and battery claim based on excessive force. In spite of their intentions, only in hindsight does it appear that they may have not achieved that objective.
III.
For the foregoing reasons, in my opinion, Holder is entitled to have a jury decide the unresolved count at a new trial. We have held in a slightly different context, “[wjhere several theories of liability, one of which is impermissible, and the court ‘cannot determine on which theory of liability the jury relied when finding in favor of the [party], leaving open the possibility that it may have relied on the impermissible one, the case *749must be remanded for retrial.’ ” District of Columbia v. White, 442 A.2d 159, 165 (D.C.1982) (quoting Murphy v. United States, 209 U.S.App. D.C. 382, 653 F.2d 637, 646 (1981)(other citations omitted)). Here, the jury specified its finding in favor of the District on the negligence count, and the record indicates that the trial court, counsel for the parties and the jury all understood the basis upon which that theory was submitted. The District should not be permitted to contend now that because the jury instructions might have been interpreted another way, it is entitled to a verdict as a matter of law. The injustice of the position seems patent. Therefore, the jury’s verdict should be given effect, or at the very least, a new trial should be granted to prevent injustice. See Bell, supra, 483 A.2d at 327. For these reasons, I respectfully dissent from the opinion of the court.
. The District represented that the reason that they had no expert testimony on the duty of care was because they had conceded that the officer was negligent if he shot someone other than the person whom he intended to hit, i.e., specifically the person with the gun.
. The language in the instruction mirrors the only negligence instruction developed by the *746court and counsel for purposes of closing instructions.
. Holder’s counsel did not object to the District's proposal for the converse proposition; however, she turned immediately to a portion of the discussion to which she did take exception. There was no further mention of the District's suggestion, and the trial court did not provide the instruction which may have eliminated some of the speculation about the meaning the instructions conveyed.
. In Garner, the Supreme Court held unconstitutional a Tennessee statute insofar as it authorized the use of deadly force to prevent the escape of a nondangerous fleeing suspect. 471 U.S. at 11, 105 S.Ct. at 1701. Pertinent to the trial court's formulation of the jury instruction in this case, in finding that the statute was not unconstitutional on its face, the Supreme Court stated:
Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.
Id. at 11-12, 105 S.Ct. at 1701.
. As the majority points out, "the trial court and the parties used 'excessive force’ interchangeably with assault and battery.” Maj. op. at 742.
. That part of the instruction reads:
If on the other hand, you find that Officer Walker intended to and did shoot the Plaintiff [Holder], that at the time of the shooting the Officer reasonably believed the Plaintiff was fleeing the commission of a felony, that the use of deadly force was necessary to prevent the escape, and that the Officer had probable cause to believe that the suspect posed a significant threat of death or physical injury to the Officer or others, then in the circumstance of this case, you must find for the defendant, the District of Columbia.
. It was the District's position, however, that as a matter of law the officer could shoot Holder justifiably under the circumstances.
. See Standardized Jury Instructions for the District of Columbia, No. 18-5.
. See Harris v. United States, 602 A.2d 154, 165 (D.C.1992)(en banc)(citing Clark v. United States, 593 A.2d 186, 193 (D.C.1991)).
. During discussions concerning the jury note, the trial court recognized the limited requirement for a finding on the negligence theory, stating, "if [Holder] was unarmed, the District has given you that case.”
. The converse proposition for the first paragraph would have been along the lines the District suggested as follows:
If on the other hand, you find that the Plaintiff was the gunman that Officer Walker intended to shoot, then in the circumstances of this case, you must find the District of Columbia not liable.
. The note inquired whether transferred intent was to be considered in connection with the assault theory. The trial court instructed that transferred intent related to both assault and to battery. The court also reminded the jury that these instructions "should be considered by [the jury] along with all of the other instructions in the case and applied to the facts as you find them."
. See Standardized Civil Jury Instructions for the District of Columbia, No. 1-11 (approved in Winters v. United States, 317 A.2d 530, 534 (D.C.1974)).
. See Etheredge v. District of Columbia, 635 A.2d 908, 918 (D.C.1993)(Claims of negligence and assault and battery are related in some factual contexts.)