CITY OF SPRINGFIELD, MASSACHUSETTS v. KIBBE, ADMINISTRATRIX OF THE ESTATE OF THURSTON
No. 85-1217.
Argued November 4, 1986
Decided February 25, 1987
Edward M. Pikula argued the cause for petitioner. With him on the briefs were Richard T. Egan and Harry P. Carroll.
Terry Scott Nagel argued the cause for respondent. With him on the brief were J. Levonne Chambers and Eric Schnapper.
Benna Ruth Solomon and David 0. Stewart filed a brief for the U. S. Conference of Mayors as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Marjorie Heins, Jack D. Novik, Howard Friedman, Michael Avery, and David Rudovsky; and for the National Association for the Advancement of Colored People by Grover G. Hankins.
Per Curiam.
We granted certiorari to resolve the question whether consistently with our decision in Monell v. New York City Dept. of Social Services, 436 U. S. 658 (1978), a municipality can be held liable under 42 U. S. C. § 1983 for inadequate training of its employees. 475 U. S. 1064 (1986). In addressing that issue, we anticipated that we would be able to reach the “fairly included” related question, see this Court’s Rule 21.1(a), whether more than negligence in training is required in order to establish such liability.
The case having now been fully briefed and orally argued, we conclude that we cannot reach the negligence question. Although petitioner city of Springfield argues here that a heightened negligence standard does not suffice under Monell’s requirement of a municipal policy, it appears that in the District Court petitioner did not object to the jury instruction stating that gross negligence would suffice, App. 234-235, and indeed proposed its own instruction to the same effect. Id., at 28. Nor did it argue for a higher standard than gross negligence in the Court of Appeals. Brief for Defendant-Appellant and Reply Brief for Defendant-Appellant in No. 85-1078 (CA1). It has informed us of no special circumstances explaining its failure to preserve this question.
We ordinarily will not decide questions not raised or litigated in the lower courts. See California v. Taylor, 353 U. S. 553, 556, n. 2 (1957). That rule has special force where the party seeking to argue the issue has failed to object to a jury instruction, since Rule 51 of the Federal Rules of Civil Procedure provides that “[n]o party may assign as error the giving . . . [of] an instruction unless he objects thereto before the jury retires to consider its verdict.” Here, our inability to reach the negligence issue makes this case an inappropriate vehicle for resolving the inadequate training question, because of the close interrelationship between the two matters, and the other questions presented are not of sufficient importance to warrant our review independently.
The dissent argues that we need not concern ourselves about Springfield’s failure to preserve this issue, because it was passed on by the Court of Appeals below. Post, at 263-266. There is doubtless no jurisdictional bar to our reaching it, whether or not the Court of Appeals did so. See Carlson v. Green, 446 U. S. 14, 17, n. 2 (1980). We think, however, that there would be considerable prudential objection to reversing a judgment because of instructions that petitioner accepted, and indeed itself requested. That the Court of Appeals was fortunate enough to entertain the issue without reaching that outcome would not justify our running the same risk. In any event, we disagree with the dissent’s reading of the Court of Appeals’ opinion, and do not believe that it pursued the extraordinary course of considering this issue — which petitioner had not even raised in its arguments to that court — any more than we are inclined to do so. See 777 F. 2d 801, 804, 809-810 (CA1 1985). (We refrain from elaborating upon the latter point, since it is of no general application.)
Unlike Oklahoma City v. Tuttle, 471 U. S. 808 (1985), this case does not present a proper occasion for us to exercise our discretion to decide an issue despite petitioner’s failure to preserve it. In Tuttle, the issue in question was explicitly-set forth in the petition for certiorari, id., at 814, n. 2, and was not objected to in respondent’s brief in opposition to cer-tiorari or in respondent’s merits brief. Id., at 815. In addition, the issue had been fully briefed and argued in the Court of Appeals. Ibid. Here, by contrast, respondent’s failure to object at the petition stage is unsurprising, because the petition did not explicitly present the negligence question, and it had not been addressed below. It would be unreasonable to require a respondent on pain of waiver to object at the cer-tiorari stage not only to the petitioner’s failure to preserve the questions actually presented, but also to his failure to preserve any questions fairly included within the questions presented but uncontested earlier. Respondent strenuously objected to petitioner’s raising this question at the first point that she was on notice that it was at issue in this case — in her response to petitioner’s brief on the merits in No. 85-1078.
For these reasons, we have concluded that the writ should be dismissed as improvidently granted. See Belcher v. Stengel, 429 U. S. 118 (1976) (per curiam).
It is so ordered.
We also granted certiorari on two other questions: whether the “single incident” rule of Oklahoma City v. Tuttle, 471 U. S. 808 (1985), is limited in application to one act by one officer, and whether a policy of inadequate training may be inferred from the conduct of several police officers during a single incident absent evidence of prior misconduct in the department or a conscious decision by policymakers.
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