The Diana Berketa v. Constable William Gurney and Regional Municipality of Niagara Police Services Board was released on January 21, 2007 by the Ontario superior Court of Justice and is an action for damages arising out of an assault and battery by a police officer.

Ms. Berketa was 66 years old and 4‘5’ inches tall and approximately 110 pounds. Her neighbor of 11 years, Daniel Fitzpatrick, liked to build paper roll rockets using kitchen paper towel rolls. Mr. Fitzpatrick would attach wooden fins to them and detonate and send them into the air and some would land on her property. On one occasion, a rocket broke her kitchen window and Ms. Berketa had made complaints about the rockets to the Niagara Falls Police Department.

On July 7, 2003, Ms. Berketa noticed that one of Mr. Fitzpatrick’s rockets had fallen on her property. She picked it up and declared that she was keeping possession of it as it had fallen on her property.  She then left her home to run an errand.

When she came back she suddenly saw that a uniformed police officer, the defendant Constable Gurney, was standing in the living room. He did not identify himself but simply yelled at her “where is the rocket?” She replied that she did not know what rocket he was talking about. He seemed angry and started threatening to arrest her as he repeatedly asked for the rocket. Ms. Berketa called him insane and tried to find a hiding spot for herself.  But the officer warned her not to move and as she walked towards the dining room, he grabbed her right arm and pulled it behind her back. He told her that she was going to jail.

Constable Gurney noticed that Ms. Berketa was bleeding so he undid the one cuff but right away Ms. Berketa collapsed and passed out. When she came to, she required her nitroglycerin spray because she was having an event associated with her heart condition. Constable Gurney offered her an ambulance but she refused and told him to leave her alone. He gave her a towel to stop the bleeding from her two hands.

She did later go to the hospital and received care for her bruises and antidepressants to cope with the trauma. required hospital care for her bleeding and bruising and her injuries took approximately 3 months to heal. She also suffered emotional distress and nightmares related to the incident. 

Ms. Berketta was never charged with any offence.  She hired St. Catharines personal injury lawyers and sued Constable Gurney and the Regional Municipality of Niagara Police Services Board.

The court concluded that Constable Gurney entered the plaintiff’s residence without permission and there was no actual or constructive invitation to the officer to enter. Further, the court found that that although he did not use full force to subdue Ms. Berketa, he used excessive force that was not reasonable in light of the circumstances.  He was found to have assaulted Ms. Berketa and thus liable for her injuries.

The court awarded Ms. Berketa general damages for pain and suffering totaling $25,000.

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