Delesma v. City of Dallas

• Decision Date: 16 September 1985
• Docket Number: No. 84-1582,84-1582
• Citation: 770 F.2d 1334
• Parties: Ernest DELESMA, et al., Plaintiffs-Appellants, v. CITY OF DALLAS and the State Fair of Texas, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1334

770 F.2d 1334

Ernest DELESMA, et al., Plaintiffs-Appellants, v. CITY OF DALLAS and the State Fair of Texas, Defendants-Appellants.

No. 84-1582.

United States Court of Appeals Fifth Circuit.

Sept. 16, 1985.

Michael M. Daniel, Elizabeth K. Julian, Dallas, Tex., for plaintiffs-appellants.

Jeffrey S. Lynch, James S. Renard, Sam A. Lindsay, Asst. City Atty., Dallas, Tex., for defendants-appellants.

Appeal from the United States District Court for the Northern District of Texas.

Before RUBIN, WILLIAMS and DAVIS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

The children of Guadalupe Delesma (appellants) ¹ sued the City of Dallas and the State Fair of Texas (appellees) on the ground that appellees' gross negligence in 1960 caused Delesma's death in 1982. The complaint asserted claims arising under 42 U.S.C. Sec. 1983 (1982), and the Texas Wrongful Death Act, Tex.Rev.Civ.Stat.Ann. arts. 4671-4678 (Vernon 1952 & Supp.1985). The district court granted appellees' motion for summary judgment. 588 F.Supp. 35 (N.D.Tex.1984). We affirm.

I.

J.W. Henson regularly worked for the City of Dallas Police Department. But on October 14, 1960, he moonlighted as a security guard at the Texas State Fair in Dallas. While acting in that capacity that evening, he accosted, searched, and tried to question Guadalupe Delesma, a paying visitor to the fairgrounds. Henson's behavior scared Delesma, and he fled. Henson shot and wounded him.

A few months later Delesma brought a state court action seeking damages from Henson and the State Fair. His petition alleged claims sounding in battery and negligence. Upon trial, however, the jury's answers to special interrogatories found that Henson did not commit battery and that Delesma's behavior constituted contributory negligence. The trial court accordingly entered a take-nothing judgment on both of Delesma's claims. He did not appeal.

Delesma died in 1982. His children, all of whom were born after the shooting, filed this suit less than a year later. Their complaint alleged that appellees were grossly negligent in failing properly to train and supervise Henson. The inadequate training and supervision led Henson unjustifiably to use deadly force, and the head wound that Delesma suffered as a consequence brought about his death twenty-two years later. The complaint demanded compensatory and punitive damages.

Appellants posited liability on the basis of two theories. Under the first, appellees deprived Delesma of life without due process of law and thus violated his Fourteenth Amendment rights. The other theory involved "a cause of action under the Texas Wrongful Death statute."

The district court rendered summary judgment against appellants on May 25, 1984. It reasoned that the Texas Wrongful Death Act gave appellants no better rights against appellees than Delesma himself had at his death. Since the statute of limitations had run against Delesma long before, the court concluded, the Wrongful Death Act precluded appellants' claims as well. The court did not explain its rationale for applying the Texas statute to the federal civil rights claim.

Appellants for the first time in this Court assert that Delesma's alleged wrongful death violated their Fourteenth Amendment rights because it deprived them of a "liberty" interest without due process of law. ² Although we normally disregard such afterthoughts, see, e.g., Irby v. Sullivan, 737 F.2d 1418, 1423 (5th Cir.1984), treating the belated claim as if appellants had properly raised it below will conserve judicial resources. Since under our analysis the new cause of action fares no better than appellants' other claims, a remand for amendment of the complaint would serve no useful purpose.

We affirm the decision of the district court on the separate ground that the judgment in Delesma's state tort suit extinguished any right of appellants to assert claims involving the injuries that Delesma suffered in 1960. Our holding does not stem from a reading of federal law only. Because of the interaction between sections 1983 and 1988 of 42 U.S.C., federal law requires application of Texas law to the section 1983 claims.

II.

The Reconstruction Civil Rights Acts fail to specify many needed rules that affect the outcome of civil rights litigation. In section 1983 cases, the necessity of looking beyond the statute for such rules recurs because section 1983 does little more than create a cause of action. ³ Congress meant for the statute to serve only that general function, however, and it indicated that intention by enacting 42 U.S.C. Sec. 1988 (1982). ⁴ That statute purports to govern the choice of law in all cases involving claims under the Reconstruction Civil Rights Acts. ⁵

Under section 1988, federal courts must undertake a three-step inquiry to determine whether to fill a deficiency in the Acts by borrowing a state rule:

First, courts are to look to the laws of the United States "so far as such laws are suitable to carry [the civil and criminal civil rights statutes] into effect." Ibid. If no suitable federal rule exists, courts undertake the second step by considering application of state "common law, as modified by the constitution and statutes" of the forum state. Ibid. A third step asserts the predominance of the federal interest: courts are to apply state law only if it is not "inconsistent with the Constitution and laws of the United States." Ibid.

Burnett v. Grattan, 468 U.S. ----, ----, 104 S.Ct. 2924, 2928-29, 82 L.Ed.2d 36 (1984); see Wilson v. Garcia, --- U.S. ----, ----, 105 S.Ct. 1938, 1942-43, 85 L.Ed.2d 254 (1985) (quoting Burnett ). "Regardless of the source of the law applied in a particular case, ... it is clear that the ultimate rule adopted under Sec. 1988 ' "is a federal rule responsive to the need whenever a federal right is impaired." ' " Robertson v. Wegmann, 436 U.S. 584, 588, 98 S.Ct. 1991, 1994, 56 L.Ed.2d 554 (1978) (quoting Moor v. County of Alameda, 411 U.S. 693, 703, 93 S.Ct. 1785, 1792, 36 L.Ed.2d 596 (1973)).

III.

A.

The issue that requires a section 1988 analysis arises from the impact that Delesma's action in state court exerts on appellants' claims. In particular, if appellants' claims "derive" from Delesma's cause of action for personal injuries, a res judicata defense that would bar Delesma from asserting a section 1983 claim would equally preclude appellants' civil rights claims. Section 1983 does not specify whether claims such as those of appellants derive from the decedent's cause of action or whether they enjoy an independent existence. Thus, the first step of the analysis reveals no controlling federal law.

B.

We turn, then, to examine the relevant sources of state law--the Wrongful Death Act, Tex.Rev.Civ.Stat.Ann. art. 4672 (Vernon 1952), and the survival statute, id. art. 5525 (Vernon 1958). In Texas, the nature of the cause of action determines which of the statutes controls. A claim that involves damages personal to the plaintiff invokes the Wrongful Death Act. ⁶ Appellants' claim for wrongful death fits that description, of course, but so does the new section 1983 claim. In contrast to their original civil rights claim, which alleged a violation of Delesma's rights, the later claim asserted an infringement of appellants' Fourteenth Amendment rights. Assuming that such a cause of action exists and that after-born children may assert it, then, appellants' claim that appellees deprived them of their liberty without due process of law fell within the Wrongful Death Act. See Bell v. City of Milwaukee, 746 F.2d 1205, 1250-53 (7th Cir.1984) (applying state wrongful death statute to personal civil rights claims of decedent's siblings).

The survival statute, on the other hand, applied to the section 1983 claim that alleged deprivation of the father's rights. See, e.g., Robertson v. Wegmann, 436 U.S. at 589-90, 98 S.Ct. at 1995 (holding that "[u]nder Sec. 1988, ... state statutory law ... provides the principal reference point in determining survival of civil rights actions"); Brazier v. Cherry, 293 F.2d 401, 405 (5th Cir.) ("[W]e are of the clear view that Congress adopted as federal law the currently effective state law on the general right of survival."), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961).

We conclude that if we follow the state statutes they would invalidate appellants' claims. Under the Wrongful Death Act, ⁷ a wrongful death claim derives wholly from the cause of action that the decedent could have asserted for personal injuries had he lived. The survivors thus occupy the decedent's legal shoes. Any defense that would have defeated a personal injury claim during his lifetime likewise vanquishes their claims. ⁸ The survival statute lends no more support to appellant's claim. It does nothing more than preserve for the decedent's estate the causes of action that he held while he lived. ⁹ The claim that survives the party's death, in other words, also derives solely from the decedent's cause of action. Thus, if appellees could have successfully raised a defense to Delesma's cause of action in a suit against them at the time of his death, they may also successfully defend against appellants' claims.

The doctrine of res judicata provides such a defense in this case. In Texas, res judicata means that "the judgment in the first suit precludes a second action by the parties and their privies not only on matters actually litigated, but also on causes of action or defenses which arise out of the same subject matter and which might have been litigated in the first suit." Texas Water Rights Commission v. Crow Iron Works, 582 S.W.2d 768, 771-72 (Tex.1979); see Van Dyke v. Boswell, O'Toole, Davis & Pickering, 697 S.W.2d 381, 384 (Tex. June 5, 1985). Moreover, "[t]hat the judgment may have been wrong or premised on a legal principle subsequently overruled does not affect application of res judicata." ¹⁰ Segrest v. Segrest, 649 S.W.2d 610, 612 (Tex.1983). Since...