Carringer v. Rodgers, No. S02Q1483.

• Court: Georgia Supreme Court
• Writing for the Court: HINES, Justice.
• Citation: 578 S.E.2d 841,276 Ga. 359
• Parties: CARRINGER v. RODGERS et al.
• Decision Date: 24 March 2003
• Docket Number: No. S02Q1483.

578 S.E.2d 841
276 Ga. 359

CARRINGER
v.
RODGERS et al

No. S02Q1483.

Supreme Court of Georgia.

March 24, 2003.

Ralph S. Goldberg, Decatur, for appellant.

Katz, Flatau, Popson & Boyer, Sandra J. Popson, LLP, Macon, Mullins, Whalen & Westbury, Andrew J. Whalen III, James R. Westbury, Jr., Griffin, for appellee.

HINES, Justice.

This 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 is:

I. Under Georgia law, does the parent of a decedent child who was murdered by his surviving spouse have a wrongful death cause of action against either the spouse-murderer and/or any other person or entity who was the proximate cause of the decedent's death? If so, for what damages? (i.e., full value of the life of the decedent? Funeral expenses? Any other damages?)

The answer is that under the Wrongful Death Act, OCGA § 51-4-1 et seq., and OCGA § 19-7-1(c), the parent of a decedent child who was [276 Ga. 360] murdered by his surviving spouse has standing to bring a cause of action for the wrongful death of the child against the murdering spouse and/or another

578 S.E.2d 842

individual or entity proximately causing the child's death; the parent may recover for the full value of the life of the child.²

BACKGROUND

The Eleventh Circuit's questions arise from an action brought by Deborah Carringer for wrongful death and other claims stemming from the murder of her son, David Newton. The Eleventh Circuit set forth the relevant facts.

In September 1997, Newton married Ethel Tessmer, a police captain for the City of Barnesville ("City"). Tessmer attempted suicide in November 1997. As a result, Stanley Rodgers, as Chief of Police for the City, ordered Tessmer to remove all weapons from her home. Rodgers did not, however, relieve Tessmer of her duties, and she continued to carry her service revolver. In January 1998, less than four months after their marriage, Tessmer shot and killed Newton with her service revolver. Tessmer was subsequently convicted of felony murder, her conviction was later affirmed on appeal, and she is currently incarcerated in a state prison. See Tessmer v. State, 273 Ga. 220, 539 S.E.2d 816 (2000).

Other than Tessmer, Newton is survived by only his mother, Carringer. Carringer was originally appointed as administrator of her son's estate; however, Tessmer contested the appointment, and it appears that the issue of who is to be the administrator of Newton's estate remains pending.

In January 2000, Carringer filed suit asserting 42 U.S.C. § 1983 claims against Rodgers and the City, and state-law claims for wrongful death and for funeral expenses against Tessmer, Rodgers, and the City. Tessmer filed a motion to dismiss, arguing that Carringer lacks standing to bring a wrongful [276 Ga. 361] 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 so. The district court declined; it also found that Carringer had no standing to bring a state-law claim for funeral expenses. The district court also dismissed the wrongful death claims against 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. They contended that under the reasoning of the district court's order dismissing the state 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 about 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, not wrongful death actions, and Carringer was not Newton's administrator (the proper party to bring survival actions).

578 S.E.2d 843

Accordingly, the court granted Rodgers' and the City's motion for summary judgment on Carringer's § 1983 claims. Carringer timely appealed both rulings to the Eleventh Circuit.³

The Eleventh Circuit found that Georgia's wrongful death statutes establish a statutory framework that determines who has standing to bring a wrongful death claim, and that the statutory scheme specifically provides for various conditions under which a decedent's surviving spouse or children, a decedent's parents, or a decedent's [276 Ga. 362] personal representative may bring a wrongful death action for the full value of the decedent's life. The Eleventh Circuit concluded that a strict reading of the Georgia wrongful death statutes appeared to foreclose Carringer from having standing to bring a wrongful death claim, but that there was contrary support in Georgia caselaw; that there were examples of the exercise of equitable powers to effectuate the purpose of the wrongful death statutes; and that the issues had never been directly addressed by the Georgia appellate courts and Georgia law provided no clear answers. We take this opportunity to clarify the question of standing to bring the wrongful death claims under the circumstances of this case.

DISCUSSION

The right to file a claim for wrongful death did not exist at common law; it is entirely a legislative creation and is authorized in Georgia by the Wrongful Death Act, OCGA § 51-4-1 et seq. Tolbert v. Maner, 271 Ga. 207, 208(1), 518 S.E.2d 423 (1999), citing Edenfield v. Jackson, 251 Ga. 491, 492, 306 S.E.2d 911 (1983). Accordingly, the language of the Act is to be given its plain and ordinary meaning. Id. OCGA § 51-4-4 governs recovery for the wrongful death of a child and provides, "The right to recover for the homicide of a child shall be as provided in Code Section 19-7-1."

OCGA § 19-7-1(c) provides in pertinent part:

(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, given such a right by this paragraph as follows: [order of recovery].

(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. ⁴[276 Ga. 363]

In the recent case, Belluso v. Tant, 258 Ga.App. 453, 574 S.E.2d 595 (2002), the Court of Appeals of Georgia was asked to consider whether a father had standing to maintain a claim against his son-in-law for the wrongful death of his adult daughter who was killed in

578 S.E.2d 844

a collision for which the son-in-law was criminally charged. The father's 43-year-old daughter died after her husband of less than a year, Tant, lost control of the vehicle in which she was a passenger. The police investigation revealed that at the time of the fatal mishap, Tant was driving in excess of 90 mph and had imbibed alcoholic beverages. Tant was charged with homicide by vehicle, driving under the influence of alcohol, failure to maintain lane, and speeding. Tant obtained appointment as the...