A Section 1983 Primer (12B): Survival and Wrongful Death–What Happens When a Section 1983 Plaintiff Dies or Has Been Killed
The immediately preceding post addressed the section 1988 background of survival and wrongful death claims based on section 1983. It included a discussion of Robertson v. Wegmann, the leading Supreme Court decision dealing with survival of section 1983 claims.
This follow-up post primarily deals with wrongful death.
While both state survival statutes and state wrongful death statutes reverse contrary common law rules, their purposes are different. Survival statutes allow the cause of action to survive regardless of the death of the plaintiff (or defendant). Wrongful death statutes, by contrast, provide for causes of action to arise in and for the benefit of certain designated persons in order to compensate them for pecuniary losses resulting from a decedent’s death. Furthermore, for wrongful death actions the defendant’s conduct must necessarily be the cause of death; this is not required for survival.
The Leading Case of Brazier v. Cherry, 293 F.2d 401 (5th Cir. 1961)
In a leading decision on survival and wrongful death, the Fifth Circuit, in Brazier v. Cherry, drew no distinction for section 1983 and section 1988 purposes between the applicability of Georgia’s survival statute and its wrongful death statute. The case concerned allegations that police brutality had caused decedent’s beating and death. In concluding that section 1988 required the application of Georgia law in favor of the plaintiff, who was both the surviving widow and the administratrix of the decedent’s estate, the court treated survival and wrongful death concepts alike. Focusing on the “suitable remedies” language of section 1988, after dealing earlier with the “party injured” language of section 1983, the Fifth Circuit stated:
The term “suitable remedies” … comprehends those facilities available in local state law but unavailable in federal legislation, which will permit the full effectual enforcement of the policy sought to be achieved by the statutes. And in a very real sense the utilization of local death and survival statutes does not do more than create an effective remedy. … To make the policy of the Civil Rights Statutes fully effectual, regard has to be taken of both classes of victims.
Thus far, the Supreme Court has not addressed the issue of wrongful death and section 1983. As noted in the preceding post, it simply commented in Robertson, a survival case, that abatement of a section 1983 cause of action where the defendant’s conduct caused the plaintiff’s death was a different issue from that in case before it where death was not so caused. Still, as a matter of section 1983 policy, Brazier‘s approach to the use of wrongful death statutes seems sound and has been generally followed in the circuits. Consider: if a wrongful death statute could not be used for section 1983 actions, it would follow that where a defendant’s unconstitutional conduct immediately caused the death of the decedent, the typical survival statute would also not be applicable. The absurd result would be no vindication at all of the section 1983 claim. Thus, the Fifth Circuit appropriately observed in Brazier:
“[I]t defies history to conclude that Congress purposely meant to assure to the living freedom from such unconstitutional deprivations, but that, with like precision, it meant to withdraw the protection of civil rights statutes against the peril of death.”
Significantly, Brazier‘s reasoning can apply to the use of state survival law as well. Indeed, because the claim in such cases is for the decedent’s loss of his or her life and related damages,the “fit” between survival law and section 1983 may even be better than that between wrongful death law and section 1983. That may be why some circuit court decisions tend in fact to use state survival law in section 1983 cases and confront the “inconsistency” issue–addressed below–regarding damages limitations head on.
The general rule is that state wrongful death statutes can be used to vindicate a decedent’s constitutional deprivations caused by the conduct of section 1983 defendants that caused his or her death.
In addition–and this is important–to the extent that state wrongful death statutes (and survival statutes) limit the recovery of compensatory and punitive damages, those limitations have been held to be inconsistent with the policies underlying section 1983 and thus found inapplicable to section 1983 wrongful death claims. See, e.g., Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984), overruled in part on other grounds, Russ v. Watts, 414 F.3d 783 (7th Cir. 2005), and Berry v. City of Muskogee, 900 F.2d 1489 (10th Cir. 1990). Both of these cases soundly hold that federal damages rules for compensatory and punitive damages govern for both survival and wrongful death claims brought under section 1983.
I discuss these and other cases in section 4:69 of Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2016)(West).
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