                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                         JAN 26 2005
                                      TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 CRYSTAL HAYES, as guardian and
 parent of Miya Perez and Gabriel
 Alexander Perez, infants and minor
 children; TERESA REYES,                                No. 04-2009
 individually and as personal                 (D.C. No. CIV-02-1355 RB/LAM)
 representative of the estate of Paul                     (D.N.M.)
 Aaron Perez, deceased,

           Plaintiffs - Appellants,

 vs.

 JIMMY A. GARCIA, Deputy Sheriff
 for Luna County, New Mexico;
 BOARD OF COUNTY
 COMMISSIONERS OF THE
 COUNTY OF LUNA, NEW MEXICO,

           Defendants - Appellees.


                              ORDER AND JUDGMENT *


Before KELLY, BALDOCK, and BRISCOE, Circuit Judges.


       Plaintiffs-Appellants, survivors of decedent Paul Aaron Perez, appeal from

an adverse judgment in favor of Defendants-Appellees and the denial of a motion


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
for a new trial. An on-duty police officer ran over Mr. Perez who was lying in

the roadway. Plaintiffs sued the officer for violation of the decedent’s civil rights

and wrongful death under 42 U.S.C. § 1983 and the New Mexico Torts Claim Act,

N.M. Stat. Ann. §§ 41-4-1 to 4-4-27. 1 At the close of the Plaintiffs’ evidence, the

district court granted the Defendants motion for judgment as a matter of law

(“JMOL”) 2 on the civil rights claim. The defendant officer admitted he was

negligent, but the jury returned a special verdict indicating that the negligence of

the officer was not the proximate cause of the decedent’s death. Aplt. App. at 30.

Plaintiffs moved for a new trial, which the district court denied. Id. at 38-44. On

appeal, Plaintiffs argue the district court (1) erred in granting the Defendants’

motion for JMOL on the civil rights claims and (2) abused its discretion in

denying the Plaintiffs’ motion for a new trial. Our jurisdiction arises under 28

U.S.C. § 1291, and we affirm.



                                    Background

      On June 7, 2001, Mr. Perez, who was then 17, had been drinking with


      1
        Plaintiffs initially raised additional claims. Those claims were resolved by
the district court and are not at issue here.
      2
       The parties refer to their motions made under Rule 50 of the Federal Rules
of Civil Procedure as motions for a “directed verdict” and “judgment
notwithstanding the verdict.” However, in 1991 Rule 50 was amended and the
terminology changed to refer to both of these motions as motions for JMOL.

                                          2
several of his friends, including Justin Gray, early into the next morning. After

consuming several beers, Mr. Perez, Mr. Gray, and a girl who was with them,

went to Mr. Gray’s house where his parents discovered their son had been

drinking and insisted his friends go home. The father, Jeffrey Gray, drove the girl

home and then drove Mr. Perez to a trailer on Hermanas Road, just outside

Deming, N.M., where Mr. Perez claimed he lived.

      After returning home, Jeffrey Gray became concerned that he had not seen

Mr. Perez enter the trailer and that he had not alerted Mr. Perez’s parents about

their son’s condition. Thus, Mr. Gray and his wife returned to where he had

dropped off Mr. Perez. In fact, the trailer was not Mr. Perez’s home, and the

Gray’s found Mr. Perez lying in the roadway, unconscious and bleeding.

      Lt. Jimmy Garcia worked the night shift on June 7, and sometime in the

early morning of June 8, as he was traveling down Hermanas Road going home

for his lunch break, he fell asleep while driving. The officer was awakened when

he felt a “bump” and thought he had run over an animal. The officer did not look

back to see what he had run over, or stop to investigate. While at home, the

officer heard a report of a pedestrian accident on Hermanas Road, and upon

responding to the scene began to suspect he may have been involved. After

inspecting his vehicle and discovering blood on the undercarriage, the officer

informed the investigating officer that he had run over Mr. Perez.


                                          3
      Mr. Perez died five hours after the accident from blunt force trauma to the

head and torso. The medical report concluded, based on the autopsy and the

blood found on Lt. Garcia’s vehicle, that Mr. Perez was lying on the road when he

was run over. Add. Ex.7 at 8. Mr. Perez’s children, represented by their mother,

Crystal Hayes, and Mr. Perez’s mother representing herself and Mr. Perez’s estate

sought to recover.



                                     Discussion

A. Civil Rights Claims

      Plaintiffs brought a substantive due process claim on two grounds: (1) the

officer created a dangerous situation by hitting Mr. Perez with his car and failing

to stop and render aid, which deprived Mr. Perez of his life, and (2) the officer

deprived Mr. Perez of his right to medical aid after being injured by a state actor.

The district court rejected both grounds in granting the Defendants’ motion for

JMOL. We review the grant of a motion for JMOL de novo, viewing the

evidence, and reasonable inferences therefrom, in the light most favorable to the

non-movant. Snyder v. City of Moab, 354 F.3d 1179, 1184 (10th Cir. 2003).

Such a judgment is warranted only if the evidence points but one way and is not

susceptible to reasonable inferences favoring the non-movant. Id.

      The Supreme Court has clearly established that the due process clause was


                                          4
not intended to supplant general tort law, but rather should be applied more

narrowly “to prevent government officials from abusing [their] power, or

employing it as an instrument of oppression.” County of Sacramento v. Lewis,

523 U.S. 833, 846 (1998) (internal quotations and citation omitted) (alteration in

original). Thus, in order to successfully establish a substantive due process claim,

the Plaintiffs must show the officer’s conduct “shocks the conscience.” Id.;

Uhlrig v. Harder, 64 F.3d 567, 571 (10th Cir. 1995). “[N]egligently inflicted

harm is categorically beneath the threshold of constitutional due process.” Lewis,

523 U.S. at 849. Further, it must be remembered that the officer’s conduct must

shock the conscience, and not simply the results of the officer’s conduct.

      Here, the officer was undoubtedly negligent in falling asleep at the wheel

and failing to determine what he had run over. However, this behavior is not “so

egregious, so outrageous, that it may fairly be said to shock the contemporary

conscience.” Lewis, 523 U.S. at 847 n.8. The accident occurred in the early

morning hours in a dark rural area. Though the result was tragic, no facts indicate

that the officer should have anticipated that Mr. Perez would be lying in the

roadway. Likewise, the evidence does not suggest that the officer intentionally

ran over Mr. Perez. And while there was some evidence to suggest Mr. Garcia

failed to render aid, any error in the district court’s grant of judgment as a matter

of law is rendered harmless in light of the jury’s finding that Mr. Garcia’s


                                           5
negligence was not the proximate cause of Mr. Perez’s death. Without question,

the officer made several errors in judgment; however, in this case, even though

we might agree this behavior is unbecoming an officer, it simply does not meet

the constitutional standard for establishing a substantive due process claim.

      Additionally, the Plaintiffs’ right to medical aid argument is unpersuasive.

In City of Revere v. Massachusetts General Hospital, the Supreme Court held that

a person who is injured “while being apprehended by the police” has a due

process right to have the responsible state actor provide medical aid. 463 U.S.

239, 244 (1983). In so ruling, the Court analogized the case to the Eighth

Amendment proscription against “deliberate indifference to serious medical needs

of prisoners.” Id. at 243-44 (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)).

However, outside these contexts there is no general right to medical care for

people injured by state actors. Indeed, the Supreme Court summarized this line of

cases as establishing “that when the State takes a person into its custody and

holds him there against his will, the Constitution imposes upon it a corresponding

duty to assume some responsibility for his safety and well-being.” DeShaney v.

Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 199-200 (1989). The

present circumstances are clearly distinguishable. The officer was not attempting

to exercise any affirmative authority over Mr. Perez “through incarceration,

institutionalization, or other similar restraint of personal liberty” when the injury


                                           6
occurred. Id. at 200. Thus, the district court did not err in granting the

Defendants’ motion for JMOL on this claim.

B. Motion for a New Trial

      Plaintiffs also argue the district court abused its discretion in denying their

motion for a new trial on the grounds that the jury instructions and special verdict

form improperly presented the proximate cause issue in their state law tort claim.

We review the denial of a motion for a new trial for an abuse of discretion and

reverse only if the jury’s verdict is “clearly, decidedly or overwhelmingly against

the weight of the evidence.” Hampton v. Dillard Dept. Stores, Inc., 247 F.3d

1091, 1110 (10th Cir. 2001) (citation omitted).

      Instruction No. 10 and the special verdict form given to the jury framed the

issue as determining whether the officer proximately caused the “Plaintiff's

injuries and damages.” Aplt. App. at 30; Aplee. Sup. App. at 15. While it is

arguably true that this improperly states “Plaintiff’s injuries” rather than

“decedent’s injuries,” the Plaintiffs waived this argument by failing to object to

the wording at trial and by using the exact language in their own proposed special

verdict form. Aplee. Sup. App. at 2; Fed. R. Civ. P. 49(a); Aves by and through

Aves v. Shah, 997 F.2d 762, 766 (10th Cir. 1993) (“A party who requests an

instruction invites any error contained therein and, absent an objection before the

instruction is given, waives appellate review of the correctness of the


                                           7
instruction.”).

      Further, we review instructions as a whole considering whether the jury

was properly apprised of the law and facts at issue. Reed v. Landstar Ligon, Inc.,

314 F.3d 447, 450 (10th Cir. 2002). Instruction No. 9 clearly stated that the

“Plaintiffs have the burden of proving that the negligence of [Lt.] Garcia, was the

proximate cause of the death of [Mr.] Perez,” Aplee. Sup. App. at 14 (emphasis

added), and the first sentence of Instruction No. 10 specified that Lt. Garcia

denied his negligence “was a proximate cause of the accident or death of [Mr.]

Perez.” Id. at 15. As such, taken as a whole, the instructions presented the

proper issue to the jury, and there is no evidence suggesting the jury was

confused. Thus, aside from this issue being waived on appeal, the district court

did not abuse its discretion in denying a new trial.

      Plaintiffs also appear to make a sufficiency of the evidence argument as to

proximate cause stating: “It is not within the bounds of reason to even suggest

that . . . [the officer’s] acts and omissions were not the proximate cause of [the

accident.] Aplt. Br. at 23. This argument has been waived due to the Plaintiffs’

failure to move for JMOL on the issue of proximate cause before the case was

submitted to the jury. Cummings v. Gen. Motors Corp., 365 F.3d 944, 949 (10th

Cir. 2004). To the extent that Plaintiffs claim that a new trial is warranted

because the verdict was clearly against the weight of the evidence, we must


                                          8
conclude that the district court did not abuse its discretion in denying a new trial.

There was conflicting evidence whether the accident could have been avoided

even had the officer not fallen asleep, and given that conflict the verdict is not

“clearly, decidedly, or overwhelmingly against the weight of the evidence.”

Wollard v. JLG Indus., Inc., 210 F.3d 1158, 1168 (10th Cir. 2000) (quotation and

citation omitted).

      AFFIRMED.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




                                           9
