Carter v. City of Birmingham

• Decision Date: 16 December 1983
• Citation: 444 So.2d 373
• Parties: John CARTER, Administrator, etc. v. CITY OF BIRMINGHAM, et al. 82-423.
• Court: Alabama Supreme Court

Page 373

444 So.2d 373

John CARTER, Administrator, etc. v. CITY OF BIRMINGHAM, et al.

82-423.

Supreme Court of Alabama.

Dec. 16, 1983.

O. William Adams, III, Birmingham, and Jack Greenberg, James M. Nabrit, III, and Steven L. Winter, New York City, for appellant.

Charles H. Wyatt, Jr., Birmingham, for appellee City of Birmingham.

James T. Collins and John E. Amari, Birmingham, for appellee George M. Sands.

BEATTY, Justice.

This is an appeal under Rule 54(b), Alabama Rules of Civil Procedure (A.R.Civ.P.), from the grant of partial summary judgments for the defendants. We reverse in part and affirm in part.

The cause arose from the death of Bonita Beatrice Carter, who was shot and killed by George M. Sands, a Birmingham police officer. Following the filing of a claim with the City of Birmingham, the plaintiff, John Carter, administrator of the decedent's estate, brought this action against the City and Sands. The action was brought under the wrongful death statute, Code of 1975, § 6-5-410 and under § 11-47-190. Motions to dismiss were overruled and the defendants filed answers. Discovery ensued. Plaintiff was allowed to file an amendment to the complaint which added four counts, Counts III, IV, V and VI. Count III stated an action under 42 U.S.C. §§ 1981 and 1983 against Sands for the violation of Bonita Carter's right under the due process clause of the Fourteenth Amendment to be free from excessive use of force. Count IV alleged a violation of Bonita Carter's right to equal protection--that Sands would not have used deadly force under the same circumstances had she been white. Count V alleged the City's culpable conduct in failing to provide clear guidelines and adequate training, and in failing to discipline, retrain, and reassign Sands, in violation of §§ 1981 and 1983. Count VI added a state law claim against the City for its own wrongful acts, omissions, and negligence resulting in the death of Ms. Carter. Motions to dismiss or, in the alternative, for summary judgment were filed by the defendants, and, after a hearing, the summary judgments were granted "as to any and all claims asserted by plaintiff in the amendment filed ... and more specifically as to Count III, Count IV, Count V and Count VI in said amendment." Summary judgment as to Count VI was not addressed on appeal.

The first issue to be decided by this Court is whether the survival of Bonita Carter's claim for compensatory damages under § 1983 is governed by federal common law or by reference to the Alabama wrongful death statute, supra. We hold that reference must be made to the Alabama act, and that her claim for compensatory damages under § 1983 does not survive.

The substance of the issue presently before this Court was dealt with in Brazier v. Cherry, 293 F.2d 401 (5th Cir.1961), in a factual context similar to the case at bar. In Brazier, an action was brought against Georgia police officers for the death of the deceased resulting from, inter alia, alleged violations of § 1983. The Court in Brazier pointed out that § 1983 does not expressly refer to actions for death or the survival of claims arising from civil rights violations, and, after examining the aims of Congress with specific regard to § 1983, declared:

"[W]e are of the clear view that Congress adopted as federal law the currently effective state law on the general right of survival. This was done by § 1988. With respect to vindication of federally guaranteed civil rights, Congress provided that in all cases where the laws of the United States are 'suitable to carry the same into effect' but are 'not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law' then the 'common law, as modified and changed by the constitution and statutes of the State' in which the federal court is sitting 'so far as the same is not inconsistent with the Constitution and laws of the United States' are to 'be extended to and govern * * * the trial and disposition' of the case.

"....

"When we examine § 1988 in the dual spotlight of the historical major aim of the civil rights legislation, Monroe v. Pape, [365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) ], and the tolerant, hospitable construction to ameliorate the hardships of the common law rule, there is ample basis for concluding that this statute fills the gap. In fact it is Georgia law, not federal law, which fills the gap.

"....

"... From a federal standpoint the only limitation upon the use of such adoptive state legislation, rule or decision is that it is suitable to carry the law into effect because other available direct federal legislation is not adapted to that object or is deficient in furnishing a fully effective redress...." (Footnotes omitted.) 293 F.2d at 405-407, 409.

The Court in Brazier went on to hold that, by virtue of the Georgia statutes, which provided for both survival of the claim that the decedent had for damages sustained during his lifetime and a right of recovery by his surviving widow and others for homicide, the § 1983 claims survived.

It is important to note that, unlike the Georgia statutes, which permit both the wrongful death and the survival actions to be maintained simultaneously, under Alabama law only a wrongful death action may be maintained, and only punitive damages are recoverable. Brown v. Morgan County, 518 F.Supp. 661 (N.D.Ala.1981), Code of 1975, § 6-5-410.

Despite this distinction, the Court in Pollard v. United States, 384 F.Supp. 304, 306 (N.D.Ala.1974), citing Brazier v. Cherry, supra, as authority, held, inter alia:

"Since there is no express federal remedy for wrongful death under the civil rights statutes (42 U.S.C. §§ 1981, 1983, 1985), the common and statutory law of the State of Alabama must be looked to for a suitable remedy not inconsistent with the Constitution and laws of the United States. 42 U.S.C. § 1988. An action against these state defendants for the wrongful deaths of plaintiffs' decedents resulting from violations of the civil rights statutes gives rise, by virtue of Alabama's wrongful death statute, to federally enforceable claims for damages by their personal representatives. Brazier v. Cherry, 293 F.2d 401 (5th Cir.1961), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961), cited with approval in Moor v. County of Alameda, 411 U.S. 693, 702-703, n. 14, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973)." 384 F.Supp. at 306.

Further, in the case of James v. Murphy, 392 F.Supp. 641 (M.D.Ala.1975), the plaintiff brought a § 1983 action against state officials for alleged violations of her deceased husband's civil rights, which resulted in his death, and sought compensatory damages. There, the Court said:

"[Plaintiff], in her complaint, asks for compensatory damages, as did the plaintiff in Brazier v. Cherry, supra--damages sustained by the decedent and damages sustained by his survivors. However, the wrongful death action in Alabama [Code of 1975, § 6-5-410] does not provide for compensatory damages as do the wrongful death acts in Georgia. The Alabama wrongful death act provides only for punitive damages--not for compensatory or actual damages. Hampton v. Roberson, 231 Ala. 55, 58, 163 So. 644; Bell v. Riley Bus Lines, 257 Ala. 120, 57 So.2d 612. The right it creates is the right of the personal representative of the decedent to act as agent by legislative appointment for the effectuation of a legislative policy of the prevention of homicides through the deterrent value of the infliction of punitive damages. Since the Plaintiff, Mattie Mae James, did not claim punitive damages in her complaint, it appears that her complaint is insufficient under §§ 1983, 1988, and the wrongful death act of Alabama [Code of 1975, § 6-5-410] to support a cause of action for the damages claimed." (Footnote omitted.) 392 F.Supp. at 645.

Nevertheless, these lower federal court holdings must be examined in light of recent pronouncements by the United States Supreme Court on the issue of whether state law shall govern the survivability of certain federal claims.

In Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978), the Court held that the § 1983 action there would abate in accordance with the Louisiana survivorship statute, thereby reversing the Fifth Circuit Court of Appeals. The Louisiana statute provided that an action for death would survive only in favor of a spouse, children, parents, or siblings of the deceased. In Robertson, the deceased died without being survived by any of the persons named in the statute.

The survival of claims and damages allowable under the Alabama wrongful death statute was carefully scrutinized and upheld in Brown v. Morgan County, supra, "in light of the proviso posited by the Supreme Court in Robertson v. Wegmann, [supra ], ... that state law is to be applied 'subject to the important proviso that state law may not be applied when it is "inconsistent with the Constitution and laws of the United States." ' " 518 F.Supp. 661, at 663.

Although our analysis here must go further, in view of another recent Supreme Court decision, City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981), and its impact on the facts in the present case, discussed ante, we agree with and adopt the reasoning and holding of the District Court in Brown, supra:

" 'The policies underlying § 1983 include compensation of persons injured by deprivation of federal rights and prevention of abuses of power by those acting under color of state law.' Robertson, supra, [436 U.S.] at 590, 591, 98 S.Ct. at 1995. The policies underlying the Alabama wrongful death act include 'creating a new cause of action, punitive in character, for the benefit of the next of kin entitled to take as distributees of his estate,' Bruce v. Collier, 221 Ala. at 23, 127 So. 553 [1930], 'prevention of homicides through the deterrent value of the infliction of punitive damages,' ...