                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          DEC 15 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    LORENZO SALAZAAR,

                Plaintiff-Appellant,

    v.                                             Nos. 99-2248 & 99-2260
                                                  (D.C. No. CIV-97-503-LH)
    JEFF ENCINIAS, City of Raton Police                   (D. N.M.)
    Officer, and CITY OF RATON,

                Defendant-Appellees.


                            ORDER AND JUDGMENT            *




Before BRORBY , PORFILIO , and MURPHY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      This appeal and cross-appeal arise from plaintiff’s action, brought pursuant

to 42 U.S.C. § 1983, in which he alleged that defendants violated his Fourth

Amendment right to be free from unreasonable seizures when Officer Encinias

used excessive force in arresting him and caused plaintiff to suffer a subdural

hematoma.   1
                The appeal is from the district court’s grant of summary judgment

in favor of defendant on causation: it ruled that plaintiff would not be permitted

to present evidence of his subdural hematoma at trial because he had not

presented sufficient evidence that Officer Encinias’ actions were the proximate

cause of the injury.

      The cross-appeal is from the district court’s action in amending the

judgment to award nominal damages. Plaintiff’s excessive force and battery

claims proceeded to trial. The jury found that Officer Encinias did not batter

plaintiff, but it did find that he used excessive force in arresting him. The jury

further found that plaintiff did not prove that he was damaged, so it awarded no

damages. Plaintiff made post-trial motions in which he argued that, because the

jury found liability under § 1983, the court must amend the judgment to award

nominal damages. The district court granted the motion and amended the

judgment to reflect an award of one dollar in nominal damages. On cross-appeal,



1
      Plaintiff also claimed that his arrest was without probable cause, but he has
not appealed the district court’s judgment on that claim.

                                          -2-
defendant maintains that it was improper for the district court to amend the

judgment to award nominal damages.


                                        No. 99-2248

       We review the district court’s grant of summary judgment          de novo ,

construing the evidence in the light most favorable to plaintiff.        Kaul v. Stephan ,

83 F.3d 1208, 1212 (10th Cir. 1996). Applying this standard, we conclude that

the district court was correct in granting partial summary judgment and in

precluding plaintiff from presenting evidence of his subdural hematoma.

       Plaintiff’s summary judgment evidence established that his injury could

have been cause by “any one” of the blows plaintiff suffered that day:          either

Officers Encinias’ excessive force      or the attack by plaintiff’s neighbor. Affidavit

of Andrea Halliday, M.D., Appellant’s App. at 52. In other words, the evidence

established that this was a situation involving alternative liability.      See Menne v.

Celotex Corp., 861 F.2d 1453, 1465-66 (10th Cir. 1988);           Northington v. Marin ,

102 F.3d 1564, 1568 (10th Cir. 1996) (discussing alternative and concurrent

liability in concluding that case was one of concurrent liability). Citing

Northington , plaintiff argues that the burden should be shifted to the defendant to

prove he did not cause the harm. The burden-shifting portion of the          Northington

holding is not applicable in this case, however, because plaintiff’s own summary

judgment evidence establishes that this is a case of alternative, not concurrent,

                                              -3-
liability. See id. at 1568 (holding that “the burden of proof shifts to the defendant

in the case of concurrent causes,” regardless whether all wrongdoers are before

the court). Unlike a concurrent liability situation, the burden in an alternative

liability case shifts to the defendant only when all wrongdoers are before the

court. See Menne , 861 F.2d at 1466; Northington , 102 F.3d at 1568 (citing

Menne ). This is an alternative liability case, and, because plaintiff did not join

both of the parties who could have caused his injury, he is not entitled to shift the

burden to require that Officer Encinias prove that he did not cause the injury.

Consequently, the district court was correct in ruling that plaintiff did not present

sufficient evidence of causation to submit the issue to the jury.


                                     No. 99-2260

      In his cross-appeal, defendant argues that it was at plaintiff’s own hand that

the jury was not instructed on nominal damages, and, thus, plaintiff should not

have been heard to argue that he must be awarded nominal damages in light of the

jury’s finding of liability. Alternatively, defendant also argues that the district

court’s amended judgment, awarding one dollar in nominal damages on the jury’s

liability finding, was an improper additur. We conclude that the district court

erred in amending the judgment to award nominal damages because plaintiff

waived any right to nominal damages.

      Defendant’s proposed jury instruction number 13 instructed that:

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            IF YOU RETURN A VERDICT FOR THE PLAINTIFF, BUT
       FIND THAT PLAINTIFF HAS FAILED TO PROVE BY A
       PREPONDERANCE OF THE EVIDENCE THAT HE SUFFERED
       ANY ACTUAL DAMAGES, THEN YOU MUST RETURN AN
       AWARD OF DAMAGES IN SOME NOMINAL OR TOKEN
       AMOUNT NOT TO EXCEED THE SUM OF ONE DOLLAR.
            NOMINAL DAMAGES MUST BE AWARDED WHEN THE
       PLAINTIFF HAS BEEN DEPRIVED BY DEFENDANT OF A
       CONSTITUTIONAL RIGHT BUT HAS SUFFERED NO ACTUAL
       DAMAGE AS A NATURAL CONSEQUENCE OF THAT
       DEPRIVATION. THE MERE FACT THAT A CONSTITUTIONAL
       DEPRIVATION OCCURRED IS AN INJURY TO THE PERSON
       ENTITLED TO ENJOY THAT RIGHT, EVEN WHEN NO ACTUAL
       DAMAGES FLOW FROM THE DEPRIVATION. THEREFORE, IF
       YOU FIND THAT PLAINTIFF HAS SUFFERED NO INJURY AS A
       RESULT OF THE DEFENDANT’S CONDUCT OTHER THAN THE
       FACT OF A CONSTITUTIONAL DEPRIVATION, YOU MUST
       AWARD NOMINAL DAMAGES NOT TO EXCEED ONE
       DOLLAR.

Appellee/Cross-Appellant’s App. at 32. Plaintiff objected to this instruction, both

in open court and in a letter generally objecting to all of defendant’s proposed

instructions.   Id. at 36 (District Court Order), 33.   2
                                                            Consequently, “[c]onsistent

with Plaintiff’s objections the jury was instructed that it could award

compensatory damages, but no instruction was given on nominal damages.”

Id. at 36 (District Court Order).




2
       The transcript of the open-court objections to the jury instructions is not in
the record, but plaintiff does not dispute the accuracy of this statement, made in
the district court’s order and in defendant’s briefs before the district court and on
appeal.

                                              -5-
       By objecting to the very instruction he now seeks to benefit from, plaintiff

waived any right he had to a nominal damage award.             See United States v.

Hardwell , 80 F.3d 1471, 1487 (10th Cir. 1996) (stating that defendant may not

invite a ruling and then seek to have it set aside on appeal);       see also Alexander v.

Riga , 208 F.3d 419, 429 (3d Cir. 2000) (holding that entitlement to nominal

damages is not automatic: plaintiff must make a timely request for nominal

damages), petition for cert. filed , (U.S. July 18, 2000) (No. 00-195);       Warren v.

Fanning , 950 F.2d 1370, 1374 (8th Cir. 1991) (affirming trial court’s denial of

motion to amend judgment to include nominal damages where, not only did

plaintiff fail to object to instruction making nominal damage award discretionary,

but plaintiff actually proposed instruction);         Sims v. Mulcahy , 902 F.2d 524,

533-34 (7th Cir. 1990) (holding that plaintiff waived claim that jury was legally

required to award nominal damages where plaintiff not only failed to object to

jury instruction making nominal damages discretionary, but agreed with court that

there was no required minimum amount of nominal or compensatory damages).

The invited-error doctrine “prevents a party who induces an erroneous ruling from

being able to have it set aside on appeal,”      United States v. Burson , 952 F.2d 1196,

1203 (10th Cir. 1991), and the same logic should apply to having the erroneous

ruling set aside in a post-judgment motion. Having made the strategic choice to

present the jury with an “all or nothing” option, plaintiff should not have been


                                                -6-
heard to complain about the lack of nominal damages after the jury chose

“nothing.” Because plaintiff waived entitlement to any legal rule that he must

be awarded at least nominal damages, deviation from the rule was not error.

See United States v. Olano , 507 U.S. 725, 732-33 (1993). Consequently, there

was no need for the district court to amend the judgment.


                                    Conclusion

      We AFFIRM the district court’s grant of partial summary judgment in

No. 99-2248. We REVERSE the district court’s ruling on the post-judgment

motion in No. 99-2260, and we REMAND to the district court with instructions

to vacate its amended judgment and reinstate the original judgment.



                                                   Entered for the Court



                                                   John C. Porfilio
                                                   Circuit Judge




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