Carringer v. Rodgers
| Decision Date | 12 June 2002 |
| Docket Number | No. 01-15258.,01-15258. |
| Citation | 293 F.3d 1299 |
| Parties | Deborah CARRINGER, Plaintiff-Appellant, v. Stanley RODGERS, City of Barnesville, Ethel Tessmer, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Ralph Goldberg, Decatur, GA, for Plaintiff-Appellant.
James R. Westbury, Jr., Mullins, Whalen & Westbury, Griffin, GA, Sandra J. Popson, Katz, Flatau, Popson & Boyer, Macon, GA, for Respondents-Appellees.
Appeal from the United States District Court for the Middle District of Georgia.
Before ANDERSON, HULL and KENNEDY*, Circuit Judges.
Plaintiff Deborah Carringer appeals the district court's dismissal of her state-law claims against all three defendants, as well as its grant of summary judgment to two of the defendants on her § 1983 claims. Plaintiff's claims arise out of the murder of her son. Plaintiff contends that the district court erred in concluding that she lacked standing to bring a wrongful death action under Georgia law, and also in concluding that she did not have standing to assert § 1983 claims because she was not her son's personal representative. After review, we find that it is necessary to certify three questions of Georgia law to the Georgia Supreme Court.
In September 1997, Plaintiff Carringer's son, David Newton, married Defendant Ethel Tessmer, a police captain for Defendant City of Barnesville (the "City"). Shortly thereafter, in November 1997, Tessmer attempted suicide. As a result, Defendant Stanley Rodgers, as Chief of Police for the City, ordered Tessmer to remove all weapons from her home. Defendant Rodgers did not, however, relieve Tessmer of her duties, and thus she continued to carry her service revolver.
In January 1998, less than four months after their marriage, Defendant Tessmer shot and killed Newton with her service revolver. A jury convicted Tessmer of felony murder, and she is currently incarcerated in state prison.1
Other than Tessmer, Newton is survived by only his mother, Plaintiff Carringer. Upon Carringer's application, the Lamar County Probate Court appointed Carringer as the administrator of her son's estate. Tessmer contested the appointment, however, and on December 9, 1999, the Superior Court of Lamar County reversed the Probate Court's decision. The issue of who is to be the administrator of Newton's estate remains pending.
In January 2000, Plaintiff Carringer brought this lawsuit asserting § 1983 claims against Defendants Rodgers and the City, and state-law claims for wrongful death and for funeral expenses against Defendants Tessmer, Rodgers, and the City. Tessmer filed a motion to dismiss arguing that Carringer lacks standing to bring a wrongful death action under Georgia law. In response, Carringer noted that pursuant to Georgia's wrongful death statutes, she, as a parent, would have standing to bring a wrongful death action if her deceased son had left no spouse or children. Carringer argued that under Georgia law, Tessmer should be treated as though she had predeceased Newton, and asked the district court to do the same. The district court declined to do so, strictly construing Georgia's wrongful death statutes. Likewise, the district court found that Carringer had no standing to bring a state-law claim for funeral expenses. Shortly thereafter, the district court also dismissed the wrongful death claims against Defendants Rodgers and the City on the same ground.
Following the district court's dismissal of the state-law claims, Rodgers and the City filed a joint motion for summary judgment on the § 1983 claims. Their motion contended that under the reasoning of the district court's order dismissing the wrongful death claims, Carringer also did not have standing to bring the § 1983 claims.
In granting Rodgers and the City's motion for summary judgment, the district court stated that its reasoning as to the state-law wrongful death claims did not apply to the § 1983 claims because § 1983 claims are survival actions. The district court noted that under Brazier v. Cherry, 293 F.2d 401 (5th Cir.1961), a federal court looks to the law of the state in which it sits to determine whether a § 1983 cause of action survived the death of the victim. The district court concluded that "[b]oth Georgia case law and federal case law make clear that civil torts that might have been brought by an individual immediately prior to his death, can only be brought by the administrator of his estate after his death." Therefore, the district court concluded that Carringer lacked standing to bring the § 1983 claims against Rodgers and the City because § 1983 actions are survival actions and not wrongful death actions, and Carringer was not Newton's administrator (the proper party to bring survival actions).2 Hence, the court granted Rodgers and the City's motion for summary judgment on Carringer's § 1983 claims.
Carringer timely appealed both rulings.
The Georgia legislature has enacted a statutory framework that determines who has standing to bring a wrongful death claim. The Georgia statutes specifically provide for various conditions under which a decedent's surviving spouse or children, a decedent's parents, or a decedent's personal representative may bring a wrongful death action for the full value of the decedent's life.
More specifically, Chapter 4 of Title 51 of the Georgia Code governs the tort of wrongful death. Section 51-4-2(a) of the Georgia Code provides that the surviving spouse may recover for the homicide of a spouse, as follows:
The surviving spouse or, if there is no surviving spouse, a child or children, either minor or sui juris, may recover for the homicide of a spouse or parent the full value of the life of the decedent, as shown by the evidence.
O.C.G.A. § 51-4-2(a). The district court held that under the plain language of this statute, Tessmer, not Carringer, would be "entitled to recover" for the homicide of Newton.
Carringer asserts that O.C.G.A. § 51-4-2 should not control here because Tessmer, as the surviving spouse, will obviously not be suing herself. Carringer asks this court to focus instead on O.C.G.A. § 51-4-4 and O.C.G.A. § 19-7-1, which address the rights of parents to bring a wrongful death action. Section 51-4-4 of the Georgia Code provides in full, "The right to recover for the homicide of a child shall be as provided in Code Section 19-7-1." O.C.G.A. § 51-4-4. Title 19 of the Georgia Code governs "Domestic Relations" and Chapter 7 of Title 19 addresses the "Parent and Child Relationship Generally." Section 19-7-1(c) of the Georgia Code in turn provides generally that in every homicide of a child, there shall be some party entitled to recover and further provides specifically the standing rule for parents, as follows:
(1) In every case of the homicide of a child, minor or sui juris, there shall be some party entitled to recover the full value of the life of the child, either as provided in this Code section or as provided in Chapter 4 of Title 51.
(2) If the deceased child does not leave a spouse or child, the right of recovery shall be in the parent or parents, if any [as provided in further subsections of this section].
(3) The intent of this subsection is to provide a right of recovery in every case of the homicide of a child who does not leave a spouse or child. If, in any case, there is no right of action in a parent or parents under the above rules, the right of recovery shall be determined by Code Section 51-4-5 []
O.C.G.A. § 19-7-1(c) (emphasis added). Carringer emphasizes that the Georgia legislature has expressed an unequivocal intent to provide recovery in every case of the homicide of a child and that because the spouse Tessmer killed Newton, this court should treat this case as one where the decedent child did not leave a spouse, which would allow Carringer, the decedent's parent, to recover instead.
In this regard, the district court held that under O.C.G.A. § 19-7-1(c), The court rejected Carringer's argument that it should treat Tessmer as though she had predeceased Newton for the purpose of applying O.C.G.A. § 19-7-1. It stated that because the action for wrongful death is not an asset of Newton's estate, O.C.G.A. § 53-1-5 did not apply.
The parties also dispute whether O.C.G.A. § 51-4-5 applies here. Section 51-4-5 of the Georgia Code is a default provision that allows the administrator or executor to bring an action for wrongful death in certain circumstances, as follows:
(a) When there is no person entitled to bring an action for the wrongful death of a decedent under Code Section 51-4-2 or 51-4-4, the administrator or executor of the decedent may bring an action for and may recover and hold the amount recovered for the benefit of the next of kin. In any such case the amount of the recovery shall be the full value of the life of the decedent.
O.C.G.A. § 51-4-5(a). The district court stated that the existence of this section bolstered its conclusion that Carringer did not have standing under O.C.G.A. § 19-7-1 because O.C.G.A. § 51-4-5(a) allows the personal representative to recover, but only "[w]hen there is no person entitled to bring an action for the wrongful death of a decedent under Code Section 51-4-2 or 51-4-4." As the district court had concluded that Tessmer was "entitled" to bring the wrongful death action under O.C.G.A. § 51-4-2, it decided that there was no need to look to either the parent or the personal representative to bring the action.3
The district court also held that Carringer had no standing to bring a state-law claim for funeral expenses.4 Carringer has only...
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...case is before the Court on certified questions from the United States Court of Appeals for the Eleventh Circuit.1 Carringer v. Rodgers, 293 F.3d 1299 (11th Cir.2002). The first question certified I. Under Georgia law, does the parent of a decedent child who was murdered by his surviving sp......
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