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Brown v. Fournier

Court of Appeals of Kentucky

June 2, 2017



          BRIEFS FOR APPELLANT: Bradley Gutherie Harrodsburg, Kentucky.

          BRIEFS FOR APPELLEE: Jeffery C. Mando Covington, Kentucky.



          ACREE, JUDGE.

         Haley Brown appeals the Mercer Circuit Court jury verdict and judgment rejecting her claims of battery and false imprisonment against Harrodsburg police officer, Thomas Fournier. Finding no error, we affirm.


         On September 8, 2013, Officer Fournier was the first to respond to a two-vehicle injury accident at the intersection of U.S. 127 and the U.S. 127 Bypass in Harrodsburg, Kentucky. The collision totaled both vehicles. Soon, more first responders, including police officers, firefighters, and emergency medical personnel, were dispatched to the scene. By then, Fournier had actively worked the scene by checking on the parties involved in the accident, identifying and treating injuries, interviewing witnesses, observing traffic, securing the scene, and gathering information.

         Ten minutes after Fournier arrived, Haley Brown showed up. She had received a text message from a friend who was one of the accident victims. The friend told Brown of the wreck and asked her to help with a ride and in collecting personal belongings from the disabled vehicle in which the friend was riding.

         What then happened between Brown and Officer Fournier would have to be determined by a jury. Generally, Brown believed Officer Fournier's conduct was both improper and tortious. She filed a "citizen's complaint" with the Harrodsburg Police Department against Officer Fournier. The complaint initiated an internal investigation. Disciplinary charges were referred against Officer Fournier, but, following a lengthy due process hearing, the City Commission found Officer Fournier not guilty on all charges.

         Brown then filed suit in Mercer Circuit Court against Officer Fournier[1]asserting a variety of claims, including battery, false imprisonment, and punitive damages. At trial, Brown and Fournier presented conflicting testimony describing their interaction on the day of the accident.

         Brown testified that, while she was speaking with her friends, Officer Fournier began screaming at her to get off his accident scene. Claiming not to realize that the officer was addressing her, Brown continued her conversation. She testified that Officer Fournier used profanity and a demeaning tone and asked her to identify herself. He then instructed her to go back to her car. Brown tried to explain to Officer Fournier who she was and why she was there but, according to Brown, he refused to listen. Brown testified Officer Fournier then said if she "did not leave the scene, [she] would be in the back of his vehicle."

         Brown said she turned from the scene in the direction of her own vehicle and began trying to telephone her brother, a Mercer County Deputy, who was also present at the scene. She further testified that, while her hands were in front of her body and as she was walking away, Officer Fournier grabbed her arms and forcibly pulled them behind her back. She said Officer Fournier had a tight hold on her arms such that it was not possible for her to break free. At this moment, Brown's brother intervened and asked Brown to return to her car. Brown testified that Officer Fournier still had a grip on her arms and, when her brother asked Brown to leave, Officer Fournier urged her forward by pushing on her back.

         Brown left the scene. Upon arriving home, she discovered blood in her bra. She said Officer Fournier's contact with her caused a rip in a surgical incision under her breast when a suture dislodged, resulting in permanent scarring.

         Officer Fournier's testimony differed. According to Officer Fournier, [2] as Brown approached the scene, he asked if she was a family member or otherwise involved in the accident. Learning Brown was neither, Officer Fournier asked her to leave. Brown refused. Officer Fournier repeated his command several times, but Brown repeatedly refused to leave. Officer Fournier described Brown as belligerent and testified that she yelled at him and cursed at him. He quoted her as saying such things as: "I'm going to do what I want"; "You can't make me leave"; and "I'm not leaving and you can't make me leave." Officer Fournier informed Brown that if she did not leave the scene, he was going to arrest her. Brown responded, "For what?"

         Officer Fournier testified that, when Brown again refused to leave, he placed his right hand on the back of her right wrist and placed his left hand just above her right elbow in an effort to escort her from the accident scene. Brown responded by jerking out of his grip and drew back her fist, poised to strike. Believing he was about to be assaulted, Officer Fournier determined to place Brown under arrest but, at that moment, Brown's brother intervened and directed Brown to return to her vehicle. Brown complied.

         Officer Fournier denied using profanity when dealing with Brown. He also denied grabbing Brown's arms or touching her in any manner other than as previously described.

         Brown denied saying, "You can't make me leave, " and denied drawing her fist back to hit Officer Fournier.

         At the close of Brown's case, Officer Fournier moved for a directed verdict on all of Brown's claims. The circuit court denied the motion as to the tort claims, but sustained Officer Fournier's motion to dismiss the claim for punitive damages. The case was then submitted to the jury.

         The jury returned a verdict in favor of Officer Fournier. The circuit court denied Brown's subsequent motion for a new trial. Brown appealed, claiming the circuit court's instructions to the jury were erroneous.


         Brown presents two general arguments for reversal and a new trial. First, she argues the circuit court published erroneous and prejudicial instructions to the jury regarding her battery and false imprisonment claims against Officer Fournier. Second, Brown contends the circuit court abused its discretion when it granted a directed verdict in favor of Officer Fournier as to Brown's claim for punitive damages. We do not find Brown's arguments persuasive.[3]

         A. Jury Instructions -Battery ...

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