Tinch v. City of Dayton

• Decision Date: 20 February 1996
• Docket Number: 94-3516,Nos. 94-3436,s. 94-3436
• Citation: 1996 WL 77445,77 F.3d 483
• Parties: NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Tonya M. TINCH, Administratrix of the Estate of Scott E. Tinch, Individually as the surviving spouse of Scott E. Tinch, As Parent, guardian, and next friend of Amanda M. and Justin S. Tinch, Minors, Plaintiff-Appellant, Cross Appellee v. CITY OF DAYTON, Michael J. Sipes; Russell E. Neville, James E. Newby, Defendant-Appellees, Cross Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 483

77 F.3d 483

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Tonya M. TINCH, Administratrix of the Estate of Scott E Tinch, Individually as the surviving spouse of Scott E Tinch, As Parent, guardian, and next friend of Amanda M. and Justin S. Tinch, Minors, Plaintiff-Appellant, Cross Appellee v. CITY OF DAYTON, Michael J. Sipes; Russell E. Neville, James E. Newby, Defendant-Appellees, Cross Appellant.

Nos. 94-3436, 94-3516.

United States Court of Appeals, Sixth Circuit.

Feb. 20, 1996.

Before: KRUPANSKY, NORRIS, SUHRHEINRICH, Circuit Judges.

PER CURIAM.

This is an appeal from the Southern District of Ohio, Western Division. Plaintiff-appellant Tonya M. Tinch (Plaintiff) has challenged, inter alia, the district court's instruction as to the measure of damages available in a § 1983 action, that court's decision to bifurcate and subsequent dismissal of the municipal defendants, and the district court's jury instructions and evidentiary rulings. Defendant-appellees Michael J. Sipes, Russell E. Neville, James E. Newby, and the City of Dayton challenged on cross-appeal the award of damages under § 1983 for decedent's loss of enjoyment of life and evidentiary rulings by the lower court.

Plaintiff's husband, Scott Tinch, was fatally shot by Detective Michael Sipes of the City of Dayton Police Department. Immediately prior to the shooting, Detectives Sipes and Neville (the defendant officers) were searching the decedent's brother at gunpoint. The record disclosed that the decedent entered upon the scene carrying an axe handle. Seeing his brother held at gunpoint, the decedent attacked the defendant officers. The officers had no opportunity to identify themselves during the short scuffle when Sipes shot and killed the decedent. Plaintiff charged that the shooting was unjustified and filed the instant action in federal district court, alleging violations of the decedent's constitutional rights, as well as state causes of action under the Ohio survival of actions and wrongful death statutes. Ohio Rev.Code § 2305.21 and § 2125.01, against the defendant officers, the City of Dayton, the city commissioners, the police chief, and the mayor. ¹

Prior to trial, the lower court bifurcated Plaintiff's suit into claims against the defendant officers ² and claims against the City of Dayton and the police chief in his official capacity (the municipal defendants). The jury returned a verdict against Sipes under 42 U.S.C. § 1983 and awarded decedent's estate $111,000. After the City of Dayton announced its intention to satisfy the judgment against Sipes, the lower court dismissed Plaintiff's claims against the municipal defendants. The parties filed timely cross-appeals.

Of the $111,000, $25,000 was allocated to the decedent's conscious pain and suffering prior to death and $86,000 to loss of enjoyment of life by the decedent. Plaintiff charged on appeal that the district court erred when it instructed the jury that Plaintiff could recover damages only for the decedent's actual damages and damages for decedent's loss of enjoyment of life. By cross-appeal, Defendants charged that the lower court erred when it failed to limit the measure of damages to compensation for the actual damage suffered by the decedent.

Section 1983 creates a federal cause of action for a deprivation of civil rights. ³ An action under § 1983 is a personal action accruing to the benefit of the person whose constitutional rights were violated and does not survive his death. E.g. Jaco v. Bloechle, 739 F.2d 239, 242 (6th Cir.1984). As such, § 1983 is a "species" of tort committed against the individual whose constitutional rights have been denied. Carey v. Piphus, 435 U.S. 247, 253, 98 S.Ct. 1042, 1047, 55 L.Ed.2d 252 (1978). In enacting § 1983 Congress expressed an intent to compensate the victims of a civil rights violation committed under color of state law. E.g., Robertson v. Wegman, 436 U.S. 584, 590-91, 98 S.Ct. 1991, 1985, 56 L.Ed.2d 554 (1978). It is well settled that federal standards govern determination of damages under the civil rights statutes. 42 U.S.C. § 1988; see also Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 238-40, 90 S.Ct. 400, 405-06, 24 L.Ed.2d 386 (1969); Gordon v. Norman, 788 F.2d 1194, 1199 (6th Cir.1986). It is equally well settled that § 1983 does not provide adequate guidance to determine the measure of damages available in an action for a violation of a claimant's civil rights. E.g. Bell v. Milwaukee, 746 F.2d 1205, 1232 (7th Cir.1984). Accordingly, 42 U.S.C. § 1988 directs that this Court turn to the common law of the forum state, in this case Ohio, to fill in the interstices in the federal framework. ⁴

The decisions of this Circuit in Jones v. Whittenberg University, 534 F.2d 1203 (6th Cir.1976), and Jaco v. Bloechle provide a clear and complete analysis of the actions available under Ohio law where the decedent's death is caused by a violation of his civil rights. An action under § 1983 is, by the explicit language of the statute, a personal action which accrues to the benefit of the injured party. Ohio's survival of actions statute, Ohio Rev.Code § 2305.21, provides that a cause of action for personal injury survives the death of the injured party, and may be brought by the decedent's personal representative on behalf of the decedent's estate to recover such damages as the deceased might have recovered had he lived. E.g. Perry v. Eagle-Picher Indus., Inc., 52 Ohio St.3d 168, 169-70, 556 N.E.2d 484, 486 (Ohio 1990); Allen v. Buradette, 139 Ohio St.208, 211, 39 N.E.2d 153, 154 (1942); Jones, 534 F.2d at 1207. Plaintiff's § 1983 action on behalf of decedent is properly classified as a tort claim for personal injury which is preserved by Ohio's survival of actions statute. Jaco, 739 F.2d at 242-43.

Accordingly, the jury award of compensatory damages for Scott Tinch's pain and suffering which accrued prior to death was proper. Ohio Rev.Code § 2305.21. The jury verdict assigned $25,000 as compensatory damages for conscious pain and suffering resulting from decedent's virtually instantaneous death. A decedent's personal representative, in a survival action, may recover damages for the decedent's pain and suffering upon a showing that the decedent was conscious of his pain and suffering prior to death. See Flory v. New York Central Rd. Co., 170 Ohio St. 185, 189, 163 N.E.2d 902, 905 (1959); see also Jones, 534 F.2d at 1213.

Ohio law does not, however, support recovery for decedent's loss of enjoyment of life. Axiomatically, no loss of enjoyment of life could have accrued in Scott Tinch's lifetime because Scott Tinch died virtually instantaneously and thus was not cognizant of that loss. See, e.g., Flory, 163 N.E.2d at 905; Jones, 534 F.2d at 1213, cf. Ramos v. Kuzas, 65 Ohio St.3d 42, 43-44, 600 N.E.2d 241, 242-43 (1992) (newborn cannot suffer "hedonic" damages because she cannot be cognizant of the loss of enjoyment of life), rehearing denied, 65 Ohio St.3d 1459, 602 N.E.2d 254 (1992). This Court concludes that the award of damages for decedent's loss of enjoyment of life was improper.

Pursuant to 42 U.S.C. § 1988, the Court must determine if a state law allowing for an award of damages for pain and suffering, and not for a decedent's loss of enjoyment of life in a survival action pursuant to § 1983, is "inconsistent with the Constitution and laws of the United States." 42 U.S.C. § 1988. In resolving questions of inconsistency between state and federal laws pursuant to § 1988, a court must examine not only the particular federal statutes and constitutional provisions at issue, but also the policies underlying them. Robertson, 436 U.S. at 590.

As noted above, Congress expressed an intent that § 1983 serve to compensate the victims of civil rights violations committed under color of state law. Absent a showing of bad faith on the part of the governmental actor, ⁵ the Supreme Court has ruled that the deterrence policy of § 1983 operates through the mechanism of compensation of the actual damages suffered by the victim. See Carey v. Piphus, 435 U.S. at 256-57 (1978); Memphis Community School Dist. v. Stachura, 477 U.S. 299, 307, 106 S.Ct. 2537, 2543, 91 L.Ed.2d 249 (1986) ("deterrence is also an important purpose of this system, but it operates through the mechanism of damages that are compensatory ") (emphasis in original). As the Supreme Court noted in Carey, "[t]o the extent that Congress intended that awards under § 1983 should deter the deprivation of constitutional rights, there is no evidence that it meant to establish a deterrent more formidable than that inherent in the award of compensatory damages." 435 U.S. at 256-57. In the case at bar, Plaintiff has received compensation for the actual harm suffered by the decedent. This result is not inconsistent with the Constitution and laws of the United States.

Plaintiff had initially joined both the defendant officers and the municipal defendants in her complaint. The district court bifurcated Plaintiff's action into claims against the Sipes and Neville, and claims against the City of Dayton and its Chief of Police. After the jury returned a verdict against defendant Sipes and fixed the amount of damages to be awarded, the lower court dismissed Plaintiff's suit against the municipality and the Chief of Police when the City of Dayton agreed to satisfy the entire amount of damages awarded. On appeal, Plaintiff challenged both the lower court's initial decision to bifurcate the claims against the separate defendants and the subsequent dismissal of the municipal defendants.

Federal Rule of Civil Procedure 42(b) authorizes a court to bifurcate a trial, "in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to...