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HEADNOTE John French v. Mary Ann Hines, et vir., No. 970, September Term, 2006 MOTIONS FOR JUDGMENT AND JNOV; PUNITIVE DAMAGES; MALICE; JURY VERDICT; IRREC ONCIL ABLE INCONSISTENCY; JURY INSTRUCTIONS; INSUFFICIENCY OF PLEADING; WAIVER; USE OF EXCESSIVE FORCE; PRIVILEGE; SUBSTANTIAL INJURY; COSTS. The plaintiff alleged that appellant, a sheriff, used excessive force in the course of an arrest, in violation of State and federal law. The jury found that appellant d id not act with malice in effe cting the arrest of Ms. H ines. For the purpose of qualified immunity under State law, the court h ad def ined m alice co nsistent with ac tual ma lice. Based on its finding of no malice, the jury did not reach the question of whether appellant used excessive force in violation of the Maryland Constitution. But, the jury expressly found that appellant used excessive force in violation of the U.S. Constitution, and then awarded punitive damages for that claim, even though th e court did not instruct a s to the malice standard for the federal claim, and appellees had not requested punitive damages. Appellant did not move for judgment as to punitive damages for excessive force. In his motion for JNOV, however, he argued that the award of punitive damages was irreconcilab ly inconsistent with the jury's finding that he acted without malice. Appellant did not waive his right to complain in the motion for JNOV as to inconsistency, because when appellant moved for judgment, the jury had not rendered its verdict and thus the issue of inconsistency could not have been raised. But, appellant waived his claim that punitive damages were improperly submitted to the jury based on deficient pleadings, because he never objected to the jury instructions as to punitive damages or to the verdict sheet, which specifically addressed punitive damages. The verdict was not irreconcilably inconsistent. As a proposition of Maryland law , a jury verdict that fin ds that the alleg ed tortfeaso r acted with out actual m alice is irreconcilab ly inconsistent with an aw ard of punitive damages. But, the finding of no malice, barring recovery for punitive damages for State claims did not preclude an award of punitive damages for a claim of excessive force under 42 U.S.C.

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Maryland Law