Gilmere v. City of Atlanta, Ga.
| Decision Date | 30 January 1989 |
| Docket Number | No. 87-8614,87-8614 |
| Citation | 864 F.2d 734 |
| Parties | Emma F. GILMERE, Individually and as Administratrix of the Estate of Thomas E. Patillo and for the benefit of his next of kin, Plaintiff-Appellant, v. CITY OF ATLANTA, GEORGIA, R.C. Sampson, and Carroll Charles Craig, Defendants- Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
J.M. Raffauf, Decatur, Ga., for plaintiff-appellant.
Mary Carole Cooney, Marva Jones Brooks, George R. Ference, Atlanta, Ga., for defendants-appellees.
Appeal from the United States District Court for the Northern District of Georgia.
Before FAY and CLARK Circuit Judges, and GONZALEZ *, District judge.
This is the third time this action has been before us. 1 Appellant Emma Gilmere, as administratix of her brother's estate, brought this suit against appellees R.C. Sampson, Carroll Charles Craig, their supervisors, and the City of Atlanta, Georgia, under 42 U.S.C. Sec. 1983 for violations of her brother's fourth, eighth and fourteenth amendment rights and under state tort law. Sampson and Craig are police officers in the City of Atlanta who beat, shot, and killed Gilmere's brother, Thomas Patillo.
After a non-jury trial, the district court found Craig, Sampson and the City of Atlanta liable for violating Patillo's substantive due process rights and found for the defendants on plaintiff's state law claims for false arrest, false imprisonment and assault and battery. 2 The court awarded $1,000.00 in general damages and $4,000.00 in punitive damages against Craig and Sampson for the beating and $20,000.00 in general damages against Sampson and the City of Atlanta for the shooting and death of the decedent. The court found that punitive damages for the shooting were not warranted. Gilmere was also awarded costs and attorney's fees.
Sampson and the City of Atlanta filed an appeal. After a rehearing en banc, this court reversed the finding of liability as to the City of Atlanta and affirmed the liability of Craig and Sampson. In addition, we found that the beating and shooting of the decedent violated his fourth amendment interest in bodily security and remanded plaintiff's state law claims for reconsideration in light of that finding. We also vacated the award of costs and attorney's fees and directed reconsideration of that award.
On remand, the district court declined to award additional damages for the fourth amendment violations. The district court reasoned that the $25,000.00 previously awarded provided adequate compensation for the actual injuries suffered by the decedent and an award of additional damages would result in a double recovery. The court also denied additional recovery for appellant's state tort claims on the same ground. Appellant was awarded $17,790.00 plus interest for costs and attorney's fees.
Emma Gilmere appeals, contending that the district court erred in not awarding state statutory damages for wrongful death or similar compensatory damages for the deprivation of life. Gilmere also argues that the trial court erred in not awarding additional damages on remand for the violations of the fourth amendment and state tort law. The other issues on this appeal concern the award of attorney's fees and the liability of the City of Atlanta for the judgment. We shall consider each issue separately below.
Appellant argues that she is entitled to recover damages for the full value of decedent's life pursuant to Georgia law. The measure of damages for wrongful death actions under Georgia law is determined by statute. See Ga.Code Ann. Sec. 51-4-1. The Georgia wrongful death statute permits recovery by the personal representative on behalf of the next of kin for the full value of the life of the decedent. Ga.Code Ann. Sec. 51-4-5. Presumably, appellant believes that the amount of damages awarded under the Georgia wrongful death statute would far exceed the $20,000.00 awarded by the district court for the shooting and death of the decedent.
Appellant makes several arguments to support her claim for state statutory damages. First, she contends that the complaint properly raised a claim under the Georgia wrongful death statute, or, alternatively, that the state wrongful death claim was tried by the implied consent of the parties. Appellant also argues that under 42 U.S.C. Sec. 1988, the district court was required to look to state law to determine the measure of damages for the section 1983 claim.
After a careful review of the record, we conclude that appellant is not entitled to recover state statutory damages for the death of her brother. First, the complaint does not allege a pendent state cause of action for wrongful death. Count I of the complaint alleges that the death of Thomas Patillo was caused by the appellees and that their conduct deprived Patillo "of his rights, privileges and immunities guaranteed him under the Fourth, Eighth and Fourteenth Amendments to the Constitution of the United States, Title 42 U.S.C. 1983 and 1988, to remain free from unlawful death, intrusions upon his property and person, physical abuse, cruel and unusual punishment and deprivation of his life and liberty without due process of law." (Complaint, p 23). The complaint goes on to demand recovery of the full value of decedent's life, and funeral and medical expenses and damages.
While it is true that the damages requested are identical to the damages recoverable under the Georgia wrongful death statute, there is no indication in the complaint that appellant intended to raise a pendent claim for wrongful death. The absence of such a claim is made even more conspicuous by the second and third causes of action of the complaint. Those counts specifically allege "further cause of action under the constitution and laws of the State of Georgia" for false imprisonment and assault and battery. In contrast, the first count of the complaint alleges and seeks recovery only for the deprivation of the decedent's constitutional rights.
Appellant's own pleadings support the conclusion that the state wrongful death claim was never raised. In her Motion to Amend Complaint, Gilmere made the following statement: "This action is brought pursuant to 42 U.S.C. 1983 and 1988 alleging violations of civil rights and pertinent state causes of action for assault and battery and false imprisonment." Appellant moved to amend the complaint to add a cause of action for false arrest. Nowhere does appellant allege a pendent state claim for wrongful death. The district court did not err in finding that the issue of wrongful death was not properly raised prior to trial.
Appellant claims that even if the complaint did not properly raise a wrongful death claim, that issue was tried by the implied consent of the parties. As support, appellant points to her Proposed Findings of Fact and Conclusions of Law filed before trial which include wrongful death as one of the claims before the court. Appellant also points to the arguments of her counsel at trial that she was pursuing a claim for wrongful death.
"A party cannot be said to have implicitly consented to the trial of an issue not presented by the pleadings unless that party should have recognized that the issue had entered the case at trial." Wesco Manufacturing, Inc. v. Tropical Attractions of Palm Beach, Inc., 833 F.2d 1484, 1486 (11th Cir.1987) (citations omitted). "Often such consent can be inferred from the failure to object to the introduction of evidence relevant to an unpleaded issue." Id.
On the record before us, we cannot say that appellees implicitly consented to try the issue of wrongful death. In objecting to the introduction of evidence of funeral expenses, counsel for appellees specifically stated that Counsel for appellant then argued in response that he had raised a wrongful death claim. The district court admitted the evidence, stating that she would consider at a later date what damages could be recovered. The district court ultimately held that appellant could not recover under a claim for wrongful death. We affirm, noting that the issue was neither expressly nor implicitly tried.
Gilmere argues that the district court erred in not applying the Georgia wrongful death statute to determine the proper amount of damages to be awarded for her Sec. 1983 claim for deprivation of life without due process of law. 3 For the reasons which follow, we conclude that the district court did not err in refusing to award the full amount of damages recoverable under state law.
The district court recognized that state tort law provides the appropriate starting point for the inquiry into the proper measure of damages under Sec. 1983. See Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). The court then found that an award under state law for the full value of Patillo's life would overcompensate his next of kin because none were dependent upon Patillo for financial support. The court determined from the evidence that $20,000.00 would adequately compensate Patillo's estate for the injuries he suffered in connection with the violation of due process caused by the shooting. The injuries included physical harm including death, emotional suffering and humiliation.
Gilmere contends, and the dissent agrees, that the district court should have awarded the Georgia statutory damages for wrongful death, i.e., the full value of Patillo's life as defined by Georgia law, because there is no suitable federal rule to define the measure of damages under Sec. 1983. However, contrary to the...
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