Before Steadman and Reid, Associate Judges, and Pryor, Senior
The opinion of the court was delivered by: Pryor, Senior Judge
Appeals from the Superior Court of the District of Columbia (Hon. Herbert B. Dixon, Trial Judge)
This litigation stems from the arrest of appellant Judy Sabir and the related detention of Karramah Taylor by officers of the Metropolitan Police Department. When the criminal charges were dismissed, appellants filed a civil action, with multiple counts, against the District of Columbia and the officers. Appellants appeal from adverse directed verdicts against them; the District also appeals from the refusal of the trial judge to vacate a judgment based on a jury verdict against it. We affirm.
At approximately six o'clock on the evening of January 7, 1992, appellants Judy Sabir and her daughter, Karramah Taylor, left their home on Fifth Street, Northeast, and began walking to a nearby store. They noticed a car traveling past them at a slow speed. Two police officers were in an unmarked police car with police tags. Appellants walked through an abandoned school yard to reach the store. Sabir and Taylor were about twenty-five feet away from each other at the time. A short time earlier, Detectives James Minar and Dean Welch received a radio run for an armed robbery. The suspects included one black male juvenile and one black female juvenile, armed with a knife, wearing dark jackets and dark colored clothing. Within fifteen minutes of the lookout, six to ten blocks from the scene of the robbery, they saw Taylor. The officers observed that she was a juvenile, black, and was wearing dark clothing. After following Taylor and Sabir for a short time, the officers requested that Taylor approach the car; she refused. Detective Minar exited the police car and approached Taylor. Although he was in plain clothing, he displayed his police badge on his belt. According to the testimony of Minar, he identified himself as a police officer when he requested that Taylor stop, and again after Taylor took a few steps. Taylor denies that the officer identified himself. Minar asked Taylor twice to remove her hands from her pockets, but she refused. Minar then removed Taylor's hands from her pockets.
Sabir, observing the exchange between Taylor and Minar, jumped on Minar from behind. According to Minar's testimony, Sabir struck him in the back and on his side. Sabir testified that she struggled with Minar and Welch for a couple of seconds before they handcuffed her. Sabir testified that Minar placed her in a choke hold and pushed her head into a gate. According to Minar, in order to restrain her, Welch grabbed one arm while Minar grabbed the other arm, and attempted to place them behind her back. Both officers denied applying a choke hold to Sabir. Sabir also testified that during the arrest she informed the officers that she had a bad neck and back. Minar testified that during the struggle, neither Sabir nor Taylor said that Sabir had any physical problems.
Subsequently, the victim of the robbery was brought to the scene, but did not identify Taylor as the robber. Taylor was released by the officers. Sabir was arrested for assaulting an officer and was transported to the police precinct station. Sabir's physician visited her while she was in custody at the police station, but did not examine her. On the day following the incident, January 8, 1992, Sabir saw the doctor again. He concluded that her neck had been destabilized as a result of the struggle. The assault charges against Sabir were eventually dismissed by the government.
Following the incident, Sabir and Taylor filed a complaint in the Superior Court on January 6, 1995, asserting multiple causes of action against the District and the officers. The complaint included three negligence claims alleging: negligence by the officers in the seizure and arrest of appellants; negligence by the District in the custody and transportation of appellant Sabir; and negligence by the District under the doctrine of respondeat superior. The remaining claims against the police officers and the District were premised on violation of a federal statute, 42 U.S.C. § 1983, alleging excessive force in effectuating Sabir's arrest and unlawful detention of Taylor.
At the close of evidence at trial, the court granted a directed verdict for the District of Columbia on the initial negligence claim against the police officers, concluding that "the negligent assaulting of someone based strictly on a negligence theory" did not constitute a valid cause of action. A directed verdict was also granted in favor of the District on the negligent custody and transportation claim. Appellants appeal both of these rulings. At the close of the evidence appellants voluntarily dismissed their claim of negligence against the District based on respondeat superior. The court merged the § 1983 action against the District of Columbia with the § 1983 action against the police officers. Appellees moved for a directed verdict on the § 1983 action for use of excessive force against Sabir and unlawful detention of Taylor. This was denied and the claims went to the jury. Sabir was awarded $25,000 in compensatory damages, without punitive damages, and Taylor was denied any recovery. Appellees cross appeal the denial of their post-trial motion for a judgment on the § 1983 action as to Sabir.
Appellants' primary challenges in this appeal relate to the directed verdicts granted against them, at the close of all the evidence, as to two of their claims of negligence. Both appellants contest the adverse rulings against them relating to their alleged negligent apprehension; appellant Sabir also contests the dismissal of her claim of negligent custodial behavior and transportation of her.
In determining whether the trial court erred in directing a verdict, the evidence must be viewed in the light most favorable to the nonmoving party, who must be given the benefit of all reasonable inferences to be drawn from the evidence. Abebe v. Benitez, 667 A.2d 834, 836 (D.C. 1995); see Washington Metro. Area Transit Auth. v. Jones, 443 A.2d 45, 49 (D.C. 1982) (en banc); Corley v. BP Oil Corp., 402 A.2d 1258, 1263 (D.C. 1979). A directed verdict may be granted "`[o]nly where the probative facts are undisputed and where reasonable minds can draw but one inference from them.'" Aylor v. Intercounty Constr. Corp., 127 U.S. App. D.C. 151, 155, 381 F.2d 930, 934 (1967) (quoting Capital Transit Co. v. Bingman, 94 U.S. App. D.C. 75, 76, 212 F.2d 241, 242 (1954)). Where "the case turns on controverted facts and the credibility of witnesses, the case is peculiarly one for the jury." Id. Applying these basic principles, we are persuaded that no reasonable jury could find that the police officers were negligent during the incident in question.
As we have said in McCracken v. David Walls-Kaufman, 717 A.2d 346 (D.C. 1998) (reiterating that the same course of conduct may give rise to claims of both assault and negligence if the necessary predicates for both are shown), and earlier cases, while it is true that one incident may give rise to claims of intentional tort or negligence, these are separate theories of liability which must be presented individually and founded on appropriate evidence. In other words, a plaintiff cannot seek to recover by "dressing up the substance" of one claim, here assault, in the "garments" of another, here negligence. See United Nat'l Ins. Co. v. The Tunnel, Inc., 988 F.2d 351, 354 (2d Cir. 1993).
According to appellants' complaint, the police officers "negligently caused the assault and battery, arrest and detention of plaintiffs." Prior to rendering a directed verdict the trial court stated, "you can't convert an intentional tort to a negligence cause of action." If appellants had plead intentional tort (assault and battery), and in the alternative, negligence, the court could have addressed each count separately, allowing for a finding of liability under either theory. See Holder v. District of Columbia, 700 A.2d 738 (D.C. 1997) (two legal causes of action went to the jury - negligence and assault and battery); District of Columbia v. White, 442 A.2d 159 (D.C. 1982) (both counts of negligence and assault were submitted to the jury). Appellants however combined these two theories into a single cause of action, in essence pleading a nonexistent cause of action. "There is no such thing as a negligent assault." 1 F. Harper & F. James, The Law of Torts, § 3.5 at 3:19 (3d ed. 1996). In order to find liability for assault or battery it "is necessary that the defendant ...