Jones v. Hildebrant

• Decision Date: 24 May 1976
• Docket Number: No. 26828,26828
• Citation: 191 Colo. 1,550 P.2d 339
• Parties: Ruby JONES, Plaintiff-Appellant, v. Douglas HILDEBRANT, and the City and County of Denver, a MunicipalCorporation, Defendants-Appellees.
• Court: Colorado Supreme Court

Page 339

550 P.2d 339

191 Colo. 1

Ruby JONES, Plaintiff-Appellant, v. Douglas HILDEBRANT, and the City and County of Denver, a MunicipalCorporation, Defendants-Appellees.

No. 26828.

Supreme Court of Colorado, En Banc.

May 24, 1976.

Rehearing Denied June 21, 1976.

Walter L. Gerash, Denver, for plaintiff-appellant.

Wesley H. Doan, Joseph A. Davies, Lakewood, for defendants-appellees.

HODGES, Justice.

Plaintiff-appellant Jones recovered, as the result of a jury trial, a $1500 judgment against the defendant-appellees Hildebrant and the City and County of Denver for the wrongful death of her fifteen-year old son. She appeals from this judgment solely on the damage issue. We find no error and therefore affirm the judgment of the trial court.

In her complaint, plaintiff alleged that defendant Hildebrant, while acting in his capacity as a Denver police officer, wrongfully shot and killed her son. The City and County of Denver was joined as a defendant because of its alleged liability as a principal. Her amended complaint stated three claims for relief: (1) battery, (2) negligence, and (3) a violation of civil rights. The first two claims were based on the Colorado wrongful death statute, section 13--21--202, C.R.S.1973. The third claim was premised on 42 U.S.C. § 1983. It will be referred to as the § 1983 claim in this opinion. She prayed for $1,500,000 compensatory damages and $250,000 exemplary damages.

It was admitted that defendant Hildebrant intentionally shot plaintiff's son while acting within the scope of his employment and under color of state law. Liability was denied, however, on the basis that the defendant police officer was attempting to apprehend a fleeing felon or in the alternative was acting in self-defense, and that he was using no more force than was reasonably necessary for these purposes.

Prior to trial, the court dismissed the § 1983 claim, ruling that it merged with plaintiff's other claims under the Colorado wrongful death statute. In addition, the trial court ruled that the wrongful death statute did not permit the recovery of punitive damages, and it also limited plaintiff's recovery to a maximum of $45,000 because she was not a dependent of the deceased. After being instructed that plaintiff could recover only the pecuniary losses she sustained as a result of the death of her son, ¹ the jury returned a verdict of $1500 in her favor.

Plaintiff asserts that the judgment should be reversed and a new trial ordered on the issue of damages because (1) her damages under the wrongful death statute were unconstitutionally restricted by the net pecuniary loss rule, (2) that her recovery was inadequate, as a matter of law, and (3) that additional damages should have been permitted under her § 1983 claim because that cause of action was not limited by the pecuniary loss rule.

I.

Plaintiff-appellant assert that this court erred in Pierce v. Conners, 20 Colo. 178, 37 P. 721 (1894), when it interpreted the wrongful death statute as permitting the recovery of only compensatory damages for the loss of a decedent's services and support and not permitting the recovery of damages for the survivor's grief or for punitive damages. As a result, she argues that her statutory remedy has been unjustly restricted in violation of her rights under Colo.Const. Art. II, § 25, and the Fourteenth Amendment of the United States Constitution. Alternatively, she argues that 'net pecuniary loss' should be defined to include the pecuniary value of her loss of comfort, society and protection.

This court has rejected similar arguments on numerous occasions and has adhered to the net pecuniary loss rule. See e.g., Kogul v. Sonheim, 150 Colo. 316, 372 P.2d 731 (1962); Herbertson v. Russel, 150 Colo. 110, 371 P.2d 422 (1962); Denver & R.G.R.R. v. Spencer, 27 Colo. 313, 61 P. 606 (1900). In response to the argument that the rule unjustly restricts her statutory remedy, we stated in Herbertson that

'(t)he suggestion that this Court should depart from its prior pronouncements defining the measure of damages recoverable under our wrongful death statute would do utter violence to the well-established rule of statutory construction that when a legislature repeatedly re-enacts a statute which has theretofore received a settled judicial construction, there can be no doubt as to the legislative intent, and in such circumstances it must be considered that the particular statute is re-enacted with the understanding that there be adherence by the judiciary to its former construction. . . .'

Also, in Kogul, we specifically held that the net pecuniary loss rule does not allow for the compensation of parental grief.

We therefore adhere to the precedent firmly established in this state and reject the defendant's request to overrule our previous pronouncements on the law in this state on the 'net pecuniary loss' rule.

II.

The plaintiff also maintains that the verdict returned by the jury is inadequate, as a matter of law, on the basis of the evidence of her son's habits of industry and disposition to help her. Based on our review of this record, we cannot conclude that the verdict is 'grossly and manifestly inadequate' as to 'clearly and definitely indicate that the jury neglected to take into consideration evidence of pecuniary loss or were influenced either by prejudice, passion or other improper considerations.' See Kogul v. Sonheim, supra.

The evidence of plaintiff's damages was vague and insubstantial. She testified that her son occasionally helped her with household chores, that he once worked at the East Side Action Center, and that from his earnings there, he once gave her $30 to pay a utility bill. No documentary evidence of funeral expenses was apparently offered to the jury, though some evidence tended to show that these expenses were approximately $1000. Under these circumstances, the trial court refused to set aside the verdict of the jury, ² and to order a new trial on the damage issue alone. We agree with the trial court's ruling.

III.

Plaintiff-appellant next contends that her § 1983 claim should not have been dismissed because it would have permitted her to recover damages not otherwise available under the state wrongful death action, including punitive damages and damages for mental anguish and loss of society. She advances what are, in reality, four distinct theories to support her position.

Her first theory, although confusingly stated, seems to be that the state wrongful death statute recognizes her claim to a civil right to her son's life, which was denied her without due process of law through his wrongful killing. This argument, in our view, misperceives the meaning of either 'liberty' or 'property' as protected by the Due Process Clause.

The United States Supreme Court in Paul v. Davis, --- U.S. ---, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), has recently addressed this question in an analogous § 1983 case where the issue was whether or not a person's right to sue for damages to his reputation under state law created a right to 'property' or 'liberty' which was unconstitutionally denied him when a state officer allegedly defamed him. The Court held that such a right to sue for damages did not create a right which could be denied solely by the underlying act of defamation. Accordingly, the Court distinguished the right to sue from other property rights, such as, a driver's license:

'In each of these cases (e.g., the suspension of a driver's license), as a result of the state action complained of, a right or status previously recognized by state law was distinctly altered or extinguished. It was this alteration, officially removing the interest from the recognition and protection previously afforded by the State, which we found sufficient to invoke the procedural guarantees contained in the Due Process Clause of the Fourteenth Amendment. But the interest in reputation alone which respondent seeks to vindicate in this action in federal court is quite different from the 'liberty' or 'property' recognized in those decisions. Kentucky law does not extend to respondent any legal guarantee of present enjoyment of reputation which has been altered as a result of petitioners' actions. Rather his interest in reputation is simply one of a number which the State may protect against injury by virtue of its tort law, providing a forum for vindication of those interests by means of damages actions. And any harm or injury to that interest, even where as here inflicted by an officer of the State, does not result in a deprivation of any 'liberty' or 'property' recognized by state or federal law, nor has it worked any change of respondent's status as theretofore recognized under the State's laws.'

The logic behind the Supreme Court's distinction is evident. The right to sue becomes a right protected by the Fourteenth Amendment only when the statutorily guaranteed access to the courts is denied. Therefore, where, as here, the state allows a plaintiff to bring her suit, she is not deprived of any of her civil rights without due process of law. ³

Secondly, the plaintiff argues that although § 1983 does not expressly create a wrongful death action for a violation of civil rights, 42 U.S.C. § 1988 authorizes the incorporation into federal law of state wrongful death remedies to vindicate violations of civil rights that result in death. She further contends that only that part of the state law granting her this right to sue should be incorporated, but not the state law relating to damages.

We agree with the plaintiff that the federal courts have commonly ruled that § 1988 permits the incorporation of the states' non-abatement statutes ⁴ and wrongful death statutes ⁵ into § 1983 actions in order to effectually implement the policies of that legislation. ⁶ For example, the leading case, Brazier v. Cherry, supra, n. 4, allowed a surviving widow to recover damages sustained by the decedent during his lifetime and damages...