Smith v. Hitchcock

June 16, 1994 [NOT FOR PUBLICATION]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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