Ayres v. Yeldell

The second phase of the trial was held on September 11, 2013. Ayres was the sole witness to testify for his own case-in-chief. No additional documentary evidence was submitted. At the conclusion of trial, the defense moved for a directed verdict pursuant to Court of Common Pleas Civil Rule 50(a). The Court reserved decision on the motion. Rather than presenting closing argument, the parties agreed to submit supplemental briefs, summarizing each of the four charges alleged.

The undisputed facts are as follows:

On March 20, 2009, at approximately 8:19 a.m., an alleged robbery was reported. The alleged victim said he was attacked along Silverside Road, in the vicinity of Chuck E. Cheese "not even ten minutes ago." He described the assailant as a black male, six feet tall, and wearing a black hoodie, blue jeans, and a white T-shirt underneath. The caller said, "He stabbed me with something.... It seemed to be like a switchblade or something." The caller stated that the assailant ran toward Route 202, saying, "He actually ran behind the Talleyville Fire Department, heading 202 south."

Around this time, Plaintiff Roland Ayres walked from the bus stop in front of Seasons Pizza on Route 202, past the Talleyville Fire Station, across the northbound lanes of 202, and into the Arby's restaurant. At the time, Mr. Ayres worked at Boston Market as a handler and was wearing his work uniform, a burgundy Boston Market shirt, black jeans, a white Boston Market hat, and a black coat.

At approximately 8:26 a.m., the Talleyville Fire Station reported that a black male with a black hooded jacket and a white hat had gone into the Arby's parking lot. Around the same time, Trooper Yeldell arrived at the Arby's.

According to the Detail Call For Service Report, at 8:27:25 a.m., Yeldell initiated a 10-100 radio restriction before approaching Mr. Ayres in the Arby's. Seventy-eight seconds later, at 8:28:43 a.m., Yeldell indicated that the situation was under control and that he had a suspect in custody. During that time, Yeldell apprehended Ayres.

As Yeldell was taking Ayres out of the Arby's, Corporal Brian Mulvena arrived on the scene. Yeldell placed Ayres in the back of his police car. After a period of time, Yeldell drove Ayres across the street to a side street parallel to Silverside Road, connecting to Route 202. There a show up was conducted in which the individual who reported the alleged robbery was asked whether Ayres was his assailant. The individual stated that Ayres was not the assailant. Upon arrival of the New Castle County Police, Ayres was released from custody.

Trooper Yeldell testified on behalf of the defense at the July 22, 2013 trial. Yeldell testified to the following:

On March 20, 2009, Yeldell was on patrol in uniform, in a marked vehicle. At some time around 8 am, he responded to a call in the area of Chuck E. Cheese. When he arrived in the vicinity, he received a report from dispatch stating that the suspect had gone toward the Arby's restaurant. Yeldell stated that the description he received was of "a black male wearing a white hat and a dark colored jacket." Yeldell then drove from Silverside Road to the Arby's which was about a block and a half from the Chuck E. Cheese.

Upon arriving at the Arby's, Yeldell parked on the east side of the building and went to the entrance on that side of the building. There are two doors to get into the restaurant at that entrance. One glass door leads to a small breezeway, and the second glass door opens into the main interior of the restaurant. Yeldell stated that through the second glass door, he was able to see someone who fit the description of the suspect. That person was Ayres. Yeldell testified that Ayres was standing at the counter, appeared as if he had ordered food, and was paying with "crumpled up bills." There was a clerk at the counter, and an additional clerk in the back who appeared to be working the drive-through. Yeldell stated that he saw other people in the Arby's out of his peripheral vision, but did not remember details about the other patrons. Ayres was wearing a white hat, dark pants, and tan Timberland boots. Yeldell notified dispatch that he had arrived at the Arby's and that he saw an individual matching the description of the suspect entering the store. A 10-100 restriction was implemented on radio communication.

Yeldell then entered the second glass door and decided to "close the gap" between him and Ayres, rather than drawing his weapon. Yeldell testified that a robbery with a knife was a "very high priority call." He stated that he was trained that "if a suspect is armed with a knife, then you present your handgun to him." Yeldell said that he did not want to draw his firearm because he did not want to put others in the restaurant at an unnecessary risk, and he did not want to provoke a violent reaction from Ayres, whom Yeldell believed committed a violent crime earlier that morning.

Yeldell said that Ayres' interaction with the clerk appeared to be "unnatural" or "awkward" because of "the totality of everything that [he] was seeing," including the look on the clerk's face, the crumpled bills Ayres was handing the clerk, and the way the clerk stood back when he was handing her the bills. He described the look on the clerk's face and the interaction in general as "unwarm." Reading from his deposition, Yeldell stated that he did not notice any threatening or aggressive behavior by Ayres toward the clerk. In his testimony, he stated that he relied in part on the body language of both Ayres and the clerk in determining that the interaction appeared unnatural.

Yeldell testified that as he was moving forward toward Ayres and when he was approximately twenty feet away, he announced "Delaware State Police... [inaudible] get on the ground." However, on cross-examination, Yeldell testified that he simply said "Delaware State Police" and did not give any other commands. Ayres then started to turn to face Yeldell. Ayres was turning to his right. Yeldell testified that throughout Ayres' movement, Yeldell could see Ayres' right hand, but not his left hand. Midway through Ayres' turn, Yeldell grabbed Ayres by the right shoulder and back of his arm, and "took him to the ground." Yeldell "utilized [his] upper body strength to force him down to the ground." Yeldell characterized Ayres as "somewhat passive in going down" and that he did not feel the need to force him down to the ground abruptly. Instead, Yeldell testified that he "utilized the necessary force just to get him under control." Yeldell said that at no point did he use his knee on Ayres' abdomen.

Yeldell testified that once Ayres was on the ground, he again announced, "Delaware State Police," and asked Ayres to open his hands because his left hand was clutched. Yeldell then "had him roll over," and placed his right knee in Ayres' upper shoulder, and secured Ayres' hands behind his back and handcuffed him. Yeldell asked Ayres if he had a knife, and Ayres answered that he did have a knife. Yeldell removed the knife from Ayres' person, then rolled Ayres onto his shoulder to get him off the ground. The knife that Ayres had was "a box cutter type knife" with a blade "approximately three to four inches long." Yeldell testified that under Delaware law, it is an offense to have a concealed knife of that type and that Yeldell believed he had sufficient grounds to arrest Ayres. Yeldell testified that Ayres was on the ground for a total of about 30-40 seconds. After Yeldell confiscated the knife and brought Ayres back to his feet in handcuffs, he lifted the 10-100 radio restriction. Yeldell testified that upon bring Ayres back to his feet, he did not notice any physical injuries, and Ayres did not complain of any injuries. Sometime before taking Ayres from the Arby's Yeldell asked Ayres where he was coming from, and Ayres replied that he had just gotten off the bus.

Yeldell then took Ayres out of the Arby's. Corporal Mulvena arrived on the scene at that time, and held one of the doors for Yeldell as he was bringing Ayres out of the restaurant. Yeldell then took Ayres to his patrol vehicle and placed him in the back. Yeldell then asked Ayres if he knew what was going on and why the police were there, and Ayres answered that he did not. Yeldell then asked Ayres where he was coming from, and Ayres replied that he had just gotten off the bus, crossed the street, and gone into the Arby's. Yeldell then closed the door and went to speak to Mulvena. Mulvena advised Yeldell that they needed to go across the street for a show up. Yeldell then opened the door and asked Ayres a second time where he was coming from. Ayres again replied that he was coming from the bus and had walked across the street. Yeldell told Ayres that he did not believe him, shut the door again, and spoke with Mulvena about Ayres' statement. Yeldell went back to Ayres and asked a fourth time.

Shortly after the last question, Yeldell moved Ayres across the street for the show up. They moved "approximately a block away from the Arby's onto a side street that runs adjacent to Silverside Road." Yeldell took Ayres out of the patrol vehicle and unhandcuffed him. The individual who had called in the alleged robbery said that Ayres was not his assailant.

Yeldell then asked Ayres to have a seat in the patrol car while he did a criminal check to see if Ayres was wanted in Delaware. That process took approximately five minutes, and the criminal check came back negative. Yeldell said they had to wait for the New Castle County Police to arrive because the alleged crime occurred in County Police jurisdiction. He did not remember how long it took for them to arrive, but said it was not "an extremely elongated period of time."

Yeldell testified that he then told Ayres he was free to go and explained to him that he was thought to have been a robbery suspect when he was taken into custody. Yeldell said that Ayres told him he understood. Yeldell apologized for the inconvenience and asked Ayres if he would like a ride to work, which according to Yeldell, Ayres declined. Yeldell asked Ayres if he was injured, and Ayres said no. Yeldell asked Ayres if he could buy him his breakfast he had been attempting to buy at the time of the initial encounter, and Ayres said no. Yeldell asked Ayres again if he wanted a ride, and Ayres again declined. Yeldell testified that Ayres never asked him for a ride to the Arby's. Yeldell also testified that by the end of the encounter, he had asked Ayres three times if he was injured and Ayres had told him he was not. Yeldell also said that he saw no injuries on Ayres. Ayres then turned and jogged away toward the Arby's.

B. Deposition Testimony

At the July 22, 2013 trial, the deposition testimony of Dr. Lawrence Piccioni, M.D. ("Dr. Piccioni"), Dr. Mariclaire Schultz, D.C. ("Dr. Schultz"), and Corporal Brian D. Mulvena (Corporal Mulvena") was received into evidence by stipulation. The relevant and substantive deposition testimony is as follows.

a. Deposition of Dr. Mariclaire Schultz.

Dr. Schultz testified that she has practiced as a chiropractor for 15 years. Although she is currently only licensed to practice in Pennsylvania, at the time of the incident Dr. Schultz was licensed to practice in Delaware, and she worked at Concord Health and Rehabilitation.

Dr. Schultz first met Ayres on March 25, 2009, when she evaluated him for injuries sustained in an incident on March 20, 2009. Ayres complained of constant, excruciating headaches, as well as: neck pain, shooting on and off; stiffness; and mid-back pain. Ayres also experienced numbness in his left lateral thigh. Dr. Schultz testified that her objective findings did correlate to Ayres' subjective findings.

Dr. Schultz first conducted a physical exam, which included doing ranges of motion. Ayres exhibited pain in the ranges of motion in the neck and the lumbar spine. Ayres displayed a reduction of range of motion in all planes of motion through the lumbar spine. Ayres also displayed a reduction of range of motion in the cervical spine in flexion/extension and right rotation, as well as right lateral flexion. Dr. Schultz found positive listings in neurological for the cervical spine orthopedic testing. Dr. Schultz explained that it "did seem to correlate that the headaches were a reflection of cervicogenic problems which were incurred from the injury."

In the initial physical exam of Ayres, Dr. Schultz also discovered spasm in the lateral part of the thigh, as well as spasms in the mid-lower back, both sides of the lower back, left lateral thigh, neck and shoulder. Dr. Schultz said that in her experience, spasming is directly correlated to scar tissue that has formed within four hours of an injury. Dr. Schultz maintained that spasms are objective evidence of an injury or trauma.

Dr. Schultz testified that the left lateral thigh pain correlates to the mechanism of injury; Ayres fell onto left side, resulting in the formation of scar tissue, spasming, and nerve damage.

Dr. Schultz diagnosed Ayres with lumbar radiculitis, specifically a paresthesia which, she explained, is an indication that a nerve running from the lumbar spine has become inflamed and damaged, and can cause a paresthesia in the region that it innervates. Dr. Schultz's diagnosis also included moderate/acute cervical sprain/strain, which she described as damage to the muscle fiber that frequently results in microdamage as well as inflammation. Finally, Dr. Schultz's diagnosis identified a sprain/strain of the thoracic spine and headaches.

Dr. Schultz formulated a treatment plan, which included chiropractic adjustments three times each week, which she claimed is customary for Ayres' type of diagnosis. Dr. Schultz also performed traction and massage. Eventually, Dr. Schultz incorporated therapeutic exercise. Dr. Schultz stated that once the muscle was built up, Ayres' therapy included work with ice to reduce inflammation, and hot packs once the inflammation had subsided. Dr. Schultz also performed an ultrasound.

Dr. Schultz treated Ayres until the end of May. She testified that Ayres' physical complaints were consistent throughout treatment. Dr. Schultz said that Ayres responded well to treatment, but his frequency of complaints shifted with each visit. Dr. Schultz opined that such shifting frequency of complaints is customary. At the end of treatment in May, Ayres was not completely symptom free. Dr. Schultz concluded that Ayres' injuries were caused by the March 20, 2009 incident, and she opined that they are probably partially permanent.

On cross exam, Dr. Schultz conceded that she had not seen Ayres prior to March 25, 2009, and she did not study his condition prior to her first evaluation. Dr. Schultz acknowledged that she did not order any studies, an MRI, or x-rays of Ayres' neck. Dr. Schultz conceded that she never conducted any objective studies to determine whether Ayres had any pre-existing injuries. Dr. Schultz said that she did not order an MRI of Ayres' neck because there was no indication of radiculitis; rather, she explained, the injury was more "cervicogenic in nature, or caused by the sprain of the neck." Dr. Schultz said that Ayres stopped treatment prior to his being formally discharged. Dr. Schultz stated that she believed Ayres ceased treatment because his mother was ill, and he did not have time for further appointments.

On cross-examination, counsel for the defense discussed Dr. Schultz's records relating to Ayres. Dr. Schultz also admitted that on April 13, 2009, Ayres reported to Dr. Schultz that he injured his back at work when lifting boxes. On June 10, 2009, Dr. Schultz wrote a report in which she classified Ayres' prognosis as "guarded," and recommended continued treatment. On October 20, 2009 - nearly five months after Ayres discontinued treatment - Dr. Schultz prepared a second report, in which she classified Ayres' prognosis as "good." Dr. Schultz explained that she inadvertently listed Ayres' condition as good. Dr. Schultz saw Ayres a total of 26 visits, and the total cost of treatment was $4,910.00.

b. Deposition of Dr. Lawrence Piccioni.

At the July 22, 2013 trial, the deposition of Dr. Lawrence Piccioni, M.D. ("Dr. Piccioni") was received into evidence by stipulation. The relevant and substantive deposition testimony of Dr. Piccioni is as follows: Dr. Piccioni is an orthopedic surgeon in Dover who treat patients surgically and non-operatively for musculoskeletal disorders. Dr. Piccioni reviewed the medical files of Ayres from Concord Health and Rehabilitation, Delaware Open MRI, and Freedom Medical Supply.

Dr. Piccioni first pointed out inconsistencies between Ayres' complaints in the records from Christiana Hospital on March 22, 2009, and his complaints in the records from Concord on March 25, 2009. In the Christiana report, Ayres' initial complaint stated that he was assaulted by the Delaware State Police. But Dr. Piccioni pointed out that "the nursing notes two pages later states that he was there for neck and back pain with no history of trauma." Dr. Piccioni then stated that in Ayres' initial evaluation at Concord, he was "talking about being tackled once, and then getting up, and then knocked down a second time, kneeing in the abdomen. When he was seen in the emergency room, there was no mention of any abdominal injury or blunt trauma to the abdomen which was two days after the injury."

Dr. Piccioni discussed Ayres' visit to Christiana. He stated, "the pain diagram at that time showed neck pain and low back pain. There was no radiation, in other words no pain down either arm or either leg, there was no numbness or tingling, and there were no specific complaints of headaches, which did show three days later, the 25^th, when he was seen in the chiropractic office." Dr. Piccioni said that Ayres was diagnosed at Christiana with "a myofascial strain/sprain." Dr. Piccioni stated that he did not see in the records any specific referrals to specialists, and there was no mention of bruising in the Christiana records; such bruising would be expected from Ayres' characterization of the incident, and that bruising would be "one of the first [things] that would be noted" in the records.

With regard to the initial visit with Dr. Schultz, on March 25, 2009, Dr. Piccioni said that Ayres' complaints then included "headaches, neck pain, and back pain with radiation of numbness and tingling down both legs, which was not present at the time of the ER visit."

While Dr. Piccioni stated that he does not fully understand all the notations in the chiropractic records, he noted that "initially, from at least March to I believe it was May, there were pretty consistent treatment records", in terms of "a fairly good chronology of no gaps". Approximately 54 days into the treatment, according to Dr. Piccioni's assessment of Ayres' reporting of pain on a scale of one to ten, "all the areas, the headaches, neck, mid-back and low back were all at zero." Dr. Piccioni stated that the timeframe of 54 days "matches a standard uncomplicated neck and back sprain," which "usually resolves within 6 to 12 weeks with conservative management."

Dr. Piccioni expressed concern that Dr. Schultz did not order a neck X-ray or a neck MRI. Dr. Piccioni concluded from this that "the chiropractor wasn't worried significantly about the amount of pain because no studies were ordered, or it borders on the standard of care that they were treating without—saying he had severe symptoms without any work-up." Dr. Piccioni mentioned that the MRI that was conducted on Ayres' spine sometime around April 17, 2009 "was read as a normal study." Dr. Piccioni claimed that the MRI did not show any of the "deep bruises or deep structures that would have been strained/sprained" or "hematomas" even though he conceded that the time between the incident and the MRI was "a little bit long." He did, however, say that the deep bruises and hematomas would still show up on the MRI.

Dr. Piccioni expressed confusion at Dr. Schultz's statement that Ayres' prognosis was guarded. Dr. Piccioni said, "I'm not so sure where you would come up with a guarded prognosis. That would either be, A, [s]he saw something on the MRI that wasn't fixable; or, B, the patient wasn't really responding to treatment." From Dr. Piccioni's assessment of the records, he claimed that he saw neither.

When asked whether Ayres' treatment was reasonable and medically necessary, Dr. Piccioni responded: "It seemed unreasonable; it seemed in excess. He was injured, he did not go to seek medical treatment until two days post-injury; that signifies to me... that he didn't seek medical attention immediately."

Additionally, Dr. Piccioni said that with the type of injury that Ayres described, bruises and scrapes would be expected: "If you're falling on the floor and... somebody's tackling you, you're going to bump something, you're going to bruise something." Instead, Dr. Piccioni characterized Ayres complaint as essentially saying, "oh, I got none of those, just my neck and back hurt."

Dr. Piccioni further stated that he saw nothing in the records that would be consistent with a neck injury that would require treatment. Dr. Piccioni did concede on cross-examination that a neck injury could occur with a whiplash-like extension/flexion of the neck in which the head does not necessarily strike something.

Dr. Piccioni testified that there were no objective findings of back injury, which would have included "bruises, cuts, scrapes, spasm." On cross-examination, however, Mr. Longobardi pointed out to Dr. Piccioni that in the Christiana records, Ayres did have a muscle spasm in his low back. Dr. Piccioni conceded that such a spasm would be an objective indication of injury and that a "spasm cannot be faked."

With regard to Ayres' claim that he was kneed in the abdomen, Dr. Piccioni pointed out that Ayres did not complain of abdominal pain at Christiana, and there was no reference in the Christiana notes to any abdominal examination or treatment.

On cross-examination, Dr. Piccioni said that the numbness Ayres reported to Dr. Schultz is a radicular symptom, which could indicate a neck or low back injury.

c. Deposition of Corporal Mulvena

Brian D. Mulvena, corporal with the Delaware State Police, was deposed on November 1, 2012. A summary of the relevant information from that deposition is as follows:

On the morning of March 20, 2009, Corporal Mulvena was on duty in a patrol car north of the Arby's. A broadcast was put out regarding a robbery. The broadcast gave a description of the suspect and the suspect's clothing, and advised that the suspect had walked into the Arby's restaurant on Route 202. According to Corporal Mulvena, the suspect was described as a black male with a dark jacket and a baseball cap. The broadcast also said that the suspect had a knife. Corporal Mulvena stated that the situation was of "[t]he highest" importance.

Corporal Mulvena pulled into the Arby's and parked his vehicle behind or alongside Yeldell's on the east side of the building. When Corporal Mulvena arrived at the scene, Yeldell was walking out of the Arby's with Ayres in handcuffs. Yeldell then put Ayres into the back of Corporal Mulvena's patrol car. Corporal Mulvena stated that he saw no other officers inside the Arby's. Corporal Mulvena described Ayres as a black male who was wearing "a black jacket and a baseball cap." Corporal Mulvena stated that he thought "he just had blue jeans on, but I'm not sure about that."

After Ayres was placed in Yeldell's patrol car, they drove to the show-up on the side street. According to Corporal Mulvena, they "just drove right across 202" from the Arby's. At the show up, Corporal Mulvena and other officers talked to the alleged victim, then "opened the police car door where Mr. Ayres was seated," and "asked the victim if he could identify Mr. Ayres." The victim then informed the troopers that Ayres was not his assailant. Corporal Mulvena said he was surprised when he heard this, because Ayres had matched the description of the assailant.

After the show-up, Corporal Mulvena did not have much contact with Ayres, but he did see Ayres leave the scene. Corporal Mulvena estimated about ten minutes elapsed between the show up and the time that Ayres left.

C. The 911 Call

The recording of the 911, which the alleged victim of the reported robbery made on the morning of March 20, 2009, was received into evidence at trial on July 22, 2013. The transcript of the 911 call to the alleged victim is as follows: Q: Police, fire, and ambulance. A: Hey, how are you doing today? I need, uh, a state trooper. Um, I need some police help for me. I was just walking to work, I work at the Chuck E. Cheese on Silverside Road, and I was attacked on my way to work. Uh... Q: Where did it happen? A: What had happened? Q: No. Where did it happen? A: Uh, it happened—well I live in the apartments right across the street from Chuck E. Cheese. Q: OK. So where were you when it happened, sir? A: Um, it's... I don't know what that shopping center's called over there. Um... Q: What store is there? A: It's Brandywine Boulevard. That's where the apartments are. And I was on my way over here. We're actually in, um— [inaudible] Q: Did it happen in the apartment? Or the apartment parking lot, of the apartment— A: No, no. It happened actually on the street. And, uh, we're at— Q: On Silverside Road? A: Yeah, we're in Talleyville Shopping Center. I'm actually—I work at Chuck E. Cheese, so I just ran up here. So... Q: OK. Are you injured? A: Uh, I mean, he—he stabbed me with something. Uh, I mean it didn't seem to be like a needle or nothing like that. Um, it seemed to be like a switchblade or something. Um— Q: Do you need an ambulance? A: No, no. I don't need a ambulance. I'm gonna wash up, and I'm gonna go the hospital myself. I would just like to file a police report. I mean, honestly, it's a black male, six foot. I mean, the chances of you guys catching up, unless you— Q: What was he wearing? A: Uh, he had a black hoodie on and blue jeans, and a white T-shirt underneath. Q: [Inaudible] some money. Is that why he was trying to rob you? A: Yeah, that's what he was trying to get, but I didn't have nothing, so, uh, he didn't like that answer too much. So. Q: Which way did he go? A: Um, he actually ran towards 202. Uh, he actually ran behind the Talleyville, uh, Fire Department, uh, heading, uh, 202 south. Q: He was on foot? A: I'm sorry. What was that? Q: He was on foot or in a car? A: Nah, he was on foot. I mean, he was on— Q: And how long ago—how long ago— A: He was on—eh, not even ten minutes ago. Q: And what's your name? A: Uh, my name's Eric Warrington. Q: What's the phone number you're calling from? A: I'm sor—uh this is my cell phone. It's uh, 302 985 1225. Q: You're at Chuck E. Cheese now? A: Yes I am. I mean I don't—I—I can't tell you that he didn't park over in, uh, one of them, uh, one of them parking lots over there or not, but that's the way he... Q: All right, let— A: That's the way he— Q: Let me transfer you over to the dispatcher, sir. Hold on just a sec. A: OK.

A. Testimony of Roland Ayres.

Roland Ayres was the sole witness to testify at the trial held on September 11, 2013. Ayres testified to the following:

At the time of the incident in question, Roland Ayres lived in Wilmington, around Jefferson and 8^th Streets. On March 20, 2009, he took the bus from around Rodney Square to get to work at Boston Market on Route 202, where he worked as a handler. His job duties included opening the store, preparing the food, and cleaning up the store. The bus dropped Ayres off on Route 202, across from Seasons Pizza, between 7:50 and 8:00 a.m. Ayres observed that his manager was not yet in the Boston Market parking lot so, as he often did, Ayres walked down to Arby's. Ayres testified that he frequently went to Arby's, and he was familiar with the Arby's employees, including the cashier who took his order.

Ayres paid for his meal with a $10.00 bill, received change from the cashier, and was standing in front of the counter when Trooper Yeldell entered the building. Trooper Yeldell said "hey you." Ayres, not realizing Trooper Yeldell was addressing him, did not respond. Trooper Yeldell said "hey you," twice more, then tackled Ayres to the ground. Ayres testified that Trooper Yeldell tackled him from the right side, and Ayres' left hip came in contact with the floor first. Trooper Yeldell handcuffed Ayres, then proceeded to flip him on his back, put his knee in Ayres' stomach, and said "you know damn well what you've done. If you don't tell me what you've done you're going to get hurt." Trooper Yeldell pulled Ayres back up on his feet, searched his pockets, and discovered a utility knife in Ayres pocket. Ayres testified that he used the knife to open boxes at work.

Trooper Yeldell put Ayres in the back of his vehicle and drove across the street. Trooper Yeldell exited the vehicle, then returned and drove Ayres back across the street to a Chuck E. Cheese parking lot. Trooper Yeldell asked Ayres if he ever committed a robbery. Ayres requested that the handcuffs, which were causing discomfort, be adjusted. Trooper Yeldell obliged. Finally, an unidentified person approached the car and said, "he's not the one."

Ayres claims that Trooper Yeldell said, "well, you all look the same in those jackets." Ayres had to wait for a sheriff to come remove the handcuffs. Ayres asked Trooper Yeldell for a ride back, however, Trooper Yeldell said he could not drive Ayres, so Ayres had to walk back to work. Ayres was scheduled to work a double shift that day, but he left around 2:30 or 3:00.

That night, Ayres experienced pain in his back that prevented him from getting up. At the suggestion of his fiancé, Ayres went to the emergency room. Ayres followed up with treatment from a chiropractor for lower and upper back pain. He was treated for five to six months, initially four times a week, then tapering off to three times a week and two times a week. Treatment included heating pads, massages, cooling pads, creams, and muscle strengthening exercises. Ayres stopped treatment when he moved to Maryland.

Ayres testified that as a result of the incident, he had trouble lifting boxes at work. Ayres claims that he does still experience pain in his back, especially when lifting things. Ayres also testified that he experiences back soreness every night.

On cross-examination, counsel for the defendants emphasized inconsistencies between Ayres' deposition testimony and his testimony at trial. In his deposition, Ayres said that the cuffs were removed after the show-up, while at trial Ayres testified that he had to wait for the sheriff to come remove the handcuffs. In response to questioning regarding this inconsistency, Ayres declared that the deposition was wrong.

The defense also emphasized inconsistencies regarding Ayres' medical treatment. At trial and in his deposition, Ayres maintained that he went to the emergency room the day after the incident. However, the hospital's medical records show that Ayres was treated on March 22, 2009-two days after the incident. At trial, Ayres responded that he was positive he went to the hospital the next day, and suggested that the date in hospital record was incorrect. Regarding Ayres' chiropractic treatment, the defense emphasized that the last visit listed in the medical records was on May 27, 2009, which indicated that Ayres received only a few months of treatment; not six months, as Ayres testified to. Finally, the defense pointed to the medical record from a car accident that occurred on April 22, 2011, in which Ayres was a passenger in a vehicle that was rear-ended. In the "past hx [history]" section of the report, there is no entry regarding the injuries Ayres allegedly sustained in the March 20, 2009 incident.

Ayres testified, on cross-examination, that the events of March 20, 2009, caused him to miss eight hours of work. Ayres also testified that he has not received any emotional treatment for the incident.

At the conclusion of trial, Defendants moved for a directed verdict pursuant to Court of Common Pleas Civil Rule 50(a). The Court reserved decision, and ordered supplemental briefing.

As the finder of fact in a non-jury trial, the Court must determine the credibility of the witnesses and resolve conflicting testimony. The burden is on the plaintiff to prove each element of his claim by a preponderance of the evidence. "The side on which the greater weight of the evidence is found is the side on which the preponderance of the evidence exists."

Delaware courts have defined the tort of battery as "the intentional, unpermitted contact upon the person of another which is harmful or offensive." "The intent necessary for battery is the intent to make contact with the person, not the intent to cause harm." To be liable for assault, the tortfeasor must intend to cause an apprehension of imminent physical contact.

After scrutinizing the trial record, and applying the standard credibility instruction for trial judges, this Court finds plaintiff has failed to prove by a preponderance of evidence the predicate elements of the assault and battery count in the Complaint.

Specifically, the element under one (1) that defendant[s] contact with defendant was intentional and unpermitted was not proven at trial by a preponderance of the evidence. The Court finds Police Officer Yeldell was performing his lawful duties, and being mindful of patrons safety, the Court finds the contact was not "unpermitted" because it was in his scope of lawful employment as a sworn police officer following a 9-1-1 call. The Court finds both this conduct and contact was not unlawful, harmful or offensive under the applicable case law set forth above. The Court also finds Officer Yeldell's account of the incident more credible.

Delaware courts apply the Restatement (Second) of Torts definition for intentional infliction of emotional distress ("IIED"), which imposes liability on a tortfeasor who, by extreme and outrageous conduct, intentionally or recklessly causes severe emotional distress to another. Such "extreme conduct" must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Furthermore, "liability only arises under the tort if the emotional distress inflicted is indeed severe," when the distress is "so severe that no reasonable [person] could be expected to endure it."

Ayres argues that his IIED claim relates to the initial incident, when Trooper Yeldell tackled him "without warning." However, Trooper Yeldell's act of tackling Ayres is not the type of "extreme conduct" sufficient to impose liability on Trooper Yeldell for IIED. Furthermore, Ayres failed to establish that the distress allegedly inflicted was severe. Ayres testified that he never received any emotional treatment after the incident, and he failed to produce any evidence at trial to support a finding that he suffered severe distress. In the absence of liability against Trooper Yeldell for IIED, The Court has no legal or factual basis on which to impose liability against the Delaware State Police and the State of Delaware following trial. Thus, Court finds that Ayres has failed to prove his IIED claim by a preponderance of the evidence.

In Count V of the Amended Complaint, Ayres asserts a claim for excessive force. However, Ayres cites to no State Constitutional nor to any statutory provision for the claim; rather, it appears that the excessive force claim alleged by Ayres is part of his §1983 claim, and the Court will address it as such. At trial, Ayres pursued a §1983 claim solely against Trooper Yeldell.

Claims that a law enforcement officer acted with excessive force in the course of a seizure must be "analyzed under the Fourth Amendment's 'objective reasonableness' standard." When evaluating the reasonableness of force used, an allowance is made "for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation." "The question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." The reasonableness analysis "requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight."

The Court finds following trial that the force used by Trooper Yeldell was reasonable in light of the circumstances surrounding Ayres' detention. Trooper Yeldell had little, if any, time to determine how to detain an individual he reasonably believed was an armed suspect, while preserving the safety of the restaurant's civilian patrons. Ayres testified that Trooper Yeldell tackled him to the ground allegedly and, while on the ground, kneed Ayres in the chest. The Court does not find this testimony to be credible. Dr. Piccioni testified that in Ayres' initial evaluation, Ayres described being tackled once, then getting up and being knocked down a second time and kneed in the abdomen. Likewise, Dr. Schultz testified that Ayres' account of events included him getting up after the initial tackle, at which point he was knocked down a second time. The Court finds that it was objectively reasonable for Trooper Yeldell to subdue an armed suspect by tackling him a second time when that suspect attempted to get up and otherwise appear to resort to lawful detention. There is no evidence in the trial record that suggests that the force used by Trooper Yeldell was objectively unreasonable. The court has scrutinized the entire factual record as set forth above. Accordingly, the Court finds that Ayres has failed to prove, by a preponderance of the evidence, that Trooper Yeldell used excessive force in violation of 42 U.S.C. §1983.

It is clear from the trail record that Ayres has failed to meet his burden to prove, by a preponderance of the evidence on each element of assault and battery; all elements of the class of intentional infliction of emotional distress, and all elements of excessive force in violation of 42 U.S.C. §1983. Therefore, the Court finds in favor of Defendants Trooper Yeldell, Delaware State Police, and the State of Delaware. Each party shall bear their own costs.

IT IS SO ORDERED this 13th day of November, 2013.

/s/ ~ John K . Welch ~

John K. Welch,

Judge cc: Ms. Tamu White

CCP Civil Case Manager