Assessing and ProvingDamages
Survival and Wrongful Death Damages in Section 1983 Cases Revisited
By R. Samuel Paz1
INTRODUCTION
In representing the families of victims of police or governmental
misconduct, when death is a result, one overriding emotional component
sometimes overlooked is the representation of the rights of the deceased victim.
When the case is presented, pre-trial and at trial, the rights of the deceased should
be asserted with the same intensity as if the deceased were sitting the chair next to
the family. Vigorous advocacy of the rights of the deceased will give meaning to
the injustices they suffered thereby giving them "life" after death. This paper will
briefly discuss how the survival action on behalf of the deceased cam maximize the
purposes and policies of § 1983.
Most conventional state law torts cases typically includes damages for pain
and suffering, but exclude them in a number of circumstances, such as under the
survival statute C.C.P. § 377.34, or under the wrongful death statute C.C.P. §
377.61. However, cases alleging damages under 42 U.S.C. § 19832 have been held
to have distinct purposes that has expanded the recovery of damages for the pain
and suffering of the deceased before his/her death and for recovery of damages for
the deceased's "right to life" by the heirs or the authorized representative of the
estate. The basic purposes of an award of damages under § 1983 is: (I) to
compensate plaintiffs for injuries caused by deprivations of their federal
constitutional or statutory rights; and, (2) the award often serves an important
function "to prevent or deter `official illegality'." Robertson v. Wegmann, 436 U.S.
584, 590-592 (1978).
The common law provided that tort claims for personal injuries abated upon
the death of the injured party. As a result of obvious injustices caused by
1

This paper was initially presented in San Francisco 2004 by the author at the NPAP Seminar and has been
presented in its updated form for the Seattle NPAP presentation at the request of the organizers.
2

2§ 1983 is one of the Reconstruction-era statutes enacted in response to the lawlessness of the Ku Klux Klan and its
sympathizers and the tacit acceptance of the KKK by southern local governments and law enforcement agencies. It
is now unquestionably "the main [statutory] vehicle for constitutional tort litigation." Archie v. City of Racine, 847
F.2d 1211, 1226 (7th Cir. 1988) (Posner, J., concurring).

1

thecommon law rule, most states (except Idaho) have enacted statutes "survival
statutes," allowing tort actions to survive the death of the plaintiff. § 1983 contains
no language addressing this question and there is no codified federal survival
statute, these state survival statutes provide the vehicle in recovering damages in
survival claims under § 1983. Robertson v. Wegmann, 589-90.
A frequently litigated issue is whether, and to what extent, the survivors in
such a case can recover damages for pain and suffering experienced by the
decedent prior to death. In Greene v. Vantage S.S. Corp., 466 F.2d 159, 166 n.9 (4th
Cir. 1972) the court commented that "there is no federal policy against awarding
damages for pain and suffering" under these circumstances. In re Korean Air Lines
Disaster, 807 F. Supp. 1073, 1081 (S.D.N.Y. 1992) also opined that there was "no
federal statutory or common law bar to the survival action brought by the
decedent's estate . . . to recover damages for decedent's conscious pain and
suffering". Most courts first look to state law for the, appropriate remedy for §
1983 violations.Bell v. City of Milwaukee, 746 F.2d 1205, 1236 (7th Cir. 1984);
Berry v. City ofMuskogee, 900 F.2d 1489, 1505 (10th Cir. 1990).
However, many state survival statutes, including several in the Ninth Circuit,
preclude any recovery for the decedent's pain and suffering. For example, in Kirk v.
Washington State Univ., 746 P.2d 285, 292 (Wash. 1987) it was noted that damages
for pain and suffering were "expressly barred from recovery" under the
Washington survival statute which was later modified. In Garcia v. Whitehead, 961
F. Supp. 230, 232 (C.D. Cal. 1997) the court pointed out that "California's
survivorship statute ... specifically excludes damages for a decedent's pain and
suffering." See also Denton v. Superior Court, 945 P.2d 1283, 1287 (Ariz. 1997).
Thus, the defense will typically argue that the survival statutes should control the
jury instructions on damages and plaintiffs' counsel will assert that the application
of these state law limitations in § 1983 are inconsistent with 1983's deterrent and
compensatory purposes. The trend of these cases are that restrictive state laws must
give way to federal common law rules that permit recovery. In sum, in a § 1983
action, the trend of the law is that the estate may recover damages for loss of life,
conscious pain and suffering experienced by the decedent prior to death, and
punitive damages in a case in which the standard of Smith v. Wade (supra) has been
satisfied.
This paper will briefly address three issues which may arise in the context of
which damages will be compensable at trial in a survival action.
(1) The federal common law developed by U.S. Supreme Court and federal cases
are generally controlling on the issues of damages in § 1983 actions;
2

(2) The estate in a § 1983 action can recover damages for "loss of life" as a
result of the decease's death in a survival action; and,
(3) The estate in a § 1983 action can recover damages for "pain and suffering of
the deceased suffered prior to his/her death in a survival action.
1. FEDERAL COMMON LAW APPLIES FIRST IN DETERMINING
WHAT DAMAGES ARE RECOVERABLE IN A § 1983 ACTION
42 U. S. C. § 1983 creates "'a species of tortliability' in favor of persons who
are deprived of 'rights, privileges, or immunities secured' to them by the
Constitution." Carey v. Piphus, 435 U.S. 247, 253 (1978). See also Smith v. Wade,
461 U.S. 30, 34 (1983). Accordingly, when § 1983 plaintiffs seek damages for
violations of constitutional rights, the level of damages is ordinarily determined
according to principles derived from the common law of torts. See Smith v. Wade,
supra, at 34; Carey v. Piphus, supra, at 257-258. To that end, compensatory
damages may include not only out-of-pocket loss and other monetary harms, but
also such injuries as "impairment of reputation . . . , personal humiliation, and
mental anguish and suffering." Gertz v. Robert Welch, Inc., 418 U.S. 323, 350
(1974). See also Carey v. Piphus, 264 (mental and emotional distress constitute
compensable injury in § 1983 cases). Deterrence is also an important purpose of
this system, but it operates through the mechanism of damages that are
compensatory -- damages grounded in determinations of plaintiffs' actual losses.
Congress adopted this common-law system of recovery when it established
liability for "constitutional torts." Consequently, "the basic purpose" of § 1983
damages is "to compensate persons for injuries that are caused by the deprivation
of constitutional rights." Carey v. Piphus, 254 (emphasis added). See also Id., at
257 ("damages awards under § 1983 should be governed by the principle of
compensation").
As the United States Supreme Court explained in Robertson v. Wegmann,
436 U.S. 584, 589 (1978) "[I]n certain areas 'federal law is unsuited or insufficient
"to furnish suitable remedies"; federal law simply does not 'cover every issue that
may arise in the context of a federal civil rights action. "'When in a section 1983
case brought in federal court the federal law is deemed to be deficient, a related
statute, 42 U.S.C. § 1988, instructs courts to turn to "'the common law, as modified
and changed by the constitution and statutes of the [forum] State,' as long as these
are 'notinconsistent with the Constitution and laws of the United States.' "(Id., 588.)
Robertson v. Wegmannalleged a §1983 deprivation based on a state district
attorney's bad faith criminal prosecution. The plaintiff died, (the death was
unrelated
3

to the alleged constitutional violation) while the action was pending and he leftno
close surviving relatives. Id., 585. The decedent's estate then sought to be
substituted as a plaintiff, but the state survival statute was limited to survival
claims of the spouse, children, parents, or siblings of a decedent, none of which
had standing under the statute. However, Court of Appeal upheld the trial court's
decision that not allowing the estate to proceed would be inconsistent with the
purposes of § 1983, and held the estate could proceed. Id., 587-88, 590. In
reversing, the Supreme Court he survival statute barred the decedent's § 1983
claim. Holding that because federal law is silent on the survival of § 1983 claims,
they are generally determined by state law, the court clarified that the exception to
this general rule occurs where application of the pertinent state law such as a
survival statute - would be inconsistent with federal law. Id., 589-590, citing 42
U.S.C. 1988 (1996), which permits resort to state law where federal remedial
provisions are "deficient," In determining if a state statute is inconsistent with
federal law, courts must look not only to the language of the pertinent federal
statute, but also to the policies underlying that statute, citing the principal policies
behind § 1983 are (1) compensating for injuries to persons who have been
deprived of their federal rights, and (2) deterring abuses of authority by
individuals acting under color of state law. Id., 590-591.
Robertson also held the abatement of that specific action was not contrary
to the deterrent policy of § 1983 in that the constitutional deprivation did not cause
the victim's death, because the statute permitted most actions to survive the
victim's death. Thus, even state officials contemplating illegal activity who were
familiar with the statute would be cognizant of their potential liability under §
1983 and the deterrent value would generally be preserved. Id. 591-952. Although
in Robertson the court concluded that plaintiffs § 1983 claim abated upon his
death, the Court reaffirmed the general proposition that state survival statutes
apply in 1983 actions unless they have an independent adverse effect on, and are
generally inhospitable to, the policies underlying § 1983. Id. 594.
In Carlson v. Green, 446 U.S. 14 (1980) the court distinguished and limited
Robertson. Carlson alleged a “Bivens action”3alleging an Eighth
Amendmentviolation for failure of prison officials to provide adequate medical
3

Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).Bivensactions are claims asserted against
federal officials for violation of a U.S. Constitution rather than one arising under § 1983. Many cases follow Carlson
in addressing the survival of claims for pain and suffering in § 1983 cases. See, e.g., Weeks v. Benton, 649 F. Supp.
1297, 1308-09 (S.D. Ala. 1986); Sager v. City of Woodland Park, 543 F. Supp. 282, 287 n.3, 295-96 (D. Colo.
1982); Davis v. City of Ellensburg, 651 F. Supp. 1248, 1254-55 (E.D. Wash. 1987); Guyton v. Phillips,532 F. Supp.
1154, 1166 (N.D. Cal. 1981).

4

attention causing the death of the plaintiffs son from a decedent's chronic
asthmatic condition which occurred while he was incarcerated in federal prison.
Id., 16, fn. 1. The Indiana state law provided that no recovery was available where
the acts complained of caused the victim's death. Id., 17, Fn. 4.Carlson rejected
the defense argument that Robertson compelled that state law must be followed in
assessing the survival of the decedent's Bivensclaim. It held that only a uniform
federal survivorship rule would suffice to redress the constitutional deprivation
being alleged, and that whenever a state survival statute would result in the
abatement of Bivensclaims against defendants whose conduct caused the victim's
death, federal common law applies to permit survival of the action. Id., 23-24.
Notwithstanding the authority provided by Robertson and Carlson, they
addressed the applicability of state survival statutes that result in the complete
abatement of an action and neither case directly held that in § 1983 actions, state
survival provisions that merely preclude the recovery of damages for pain and
suffering should not be followed in instructing the jury.4However, these Supreme
Court cases have become the foundation for a number of circuit and lower court
decisions which have-limited the application of state law provisions that
precludedamages awarded to the estate or representative of a decedent for “loss of
life” or for the decedent's "pain and suffering" caused by the constitutional
violation before death.
2. DAMAGES FOR VIOLATION OF A CONSTITUTIONAL RIGHT MAY
ALLOW FOR RECOVERY BY AN ESTATE FOR LOSS OF LIFE
In the seminal case of Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir.
1984) the defendant officers appealed from the jury verdict and judgment of the
district court, which found that the defendant officer deprived decedent Daniel Bell
and his family of their constitutional rights by an unlawfully shooting and the
finding that the officer, the Chief of Police, and the investigating detective
unlawfully conspired to conceal the true facts of Daniel Bell's death. Defendants
appealed various components of the judgment of $1,590,670 in favor of family
members and the estateof Daniel Bell for "loss of life." There, the court held that
the state law wrongful death-survival statute, similar to California's, along with
state case law decisions construing those provisions ". . . which would preclude
4

In Carlson, in a concurring opinion written by J. Powell, joined by J. Stewart opined the same result if the action
was under § 1983, Id. at 29-30. See also Bell v. City of Milwaukee, 746 F.2d 1205, 1237-1238 (7th Cir. 1984),
(applicability of Carlson to § 1983).

5

recovery to Daniel Bell's estate for loss of life, are inconsistent with the deterrent
policy of Section 1983 and the Fourteenth Amendment's protection of life." Id.,
1240. "The Wisconsin law therefore cannot be applied to preclude the $100,000
damages recovered by Daniel Bell's estate for loss of life." Id.
Deterrence of wrongful or negligent conduct is also a policy objective of tort
law, but as in Wisconsin, survival and wrongful death statutes generally do
not seek to deter wrongful deaths through the imposition of damages for loss
of life itself. The rationale is typically the extraordinary difficulty in
measuring the value of the loss; and in the context of a survival action, there
is the additional inability to restore a deceased to the state he would have
enjoyed but for his death. [cite omitted] Yet given the stated tort policy of
deterrence and the conceivable reduction of the incidence of tortious conduct
created by the threat of substantial damages, these dilemmas amount to less
than a compelling argument against awarding any damages at all for loss of
life.Id., fn. 41.
In Graham v. Sauk Prairie Police Commission, 915 F.2d 1085 (7th Cir. 1990)
plaintiff's § 1983 Fourteenth Amendment arise from the shooting death of her
husband. The officer defendant died from causes unrelated to the case shortly after
it was filed. The district court granted plaintiffs' summary judgment on the
decedent's fourth amendment excessive force claim and fourteenth amendment loss
of life claim and in favor of the spouses' fourteenth amendment claim for lost
society and companionship. After a jury award to the spouse of $ 300,000 for lost
society and companionship, $ 130,200 in compensatory damages and $ 550,000 for
loss of life to the Estate, defendants challenged the loss of life damages on the
grounds that because the officer had died, no deterrent policy would be advanced
by the award. Id., 1088.
Graham followedBell where "[W]e stated that where the unconstitutional act
is the taking of a life, there would result more than a marginal loss of influence on
potentially unconstitutional actors and, therefore, on the ability of § 1983 to deter
official lawlessness, if the victim's estate could not recover loss of life damages."
Id., 1104. First the court rejected the argument that because both the deceased and
the officer were Caucasian that the award would not address an inference ofracial
animus present in Bell and therefore had no effective deterrence on racial injustice,
a historical consideration of § 1983 explaining:
While the loss of life damages in Bell may have been directed partially
towards deterring deprivations of life that are motivated by racial animus,
we emphasized that the legislative history underlying § 1983 expresses an
6

unequivocal concern for protecting life. (Cite omitted, emphasis in the
original.) Thus, while § 1983 damages may in some cases be aimed at
deterring a specific motivation (for instance, racial animus) for an
unconstitutional killing, the overriding concern of § 1983 is deterring
unjustified takings of life. Id., 1104-1105.
Graham also rejected the argument that because the individual officer acting
insane at the time of the shooting and was now dead, that the award would have no
deterrent effect on him as an individual and therefore did not advance the purposes
of § 1983. The court found the fact that the officer could no longer be deterred
"quite irrelevant." It explained:
The deterrence objective of § 1983 damages is directed at a broader category
of persons than the individual perpetrator alone. In Bell, this court stated that
loss of life damages are intended to have a deterrent effect on "potentially
unconstitutional actors." 746 F.2d at 1239(emphasis added). No specific
deterrence could have been accomplished in Bell because in that case, the
offending officer had resigned from the force. Id., 1105.
Thus, it was held that the loss of life award to the estate was broadly directed
towards "deterring any police officer who would contemplate taking the life of a
person who poses no threat of harm to the officer or the public." Id.
Consistent with the reasoning of the "loss of life" cases, a number of § 1983
cases have also allowed claims of punitive damages in wrongful death cases over
restrictive state wrongful death statutes. For example, in Bass v. Wallenstein, 769
F.2d 1173, 1190 (7th Cir, 1985) the court stated "Nor can restrictive state law
preclude the estate's recovery of punitive damages in a case in which the showing
of "recklessness or callous indifference" required by Smith v. Wade, 461 U.S. 30,
75 L. Ed. 2d 632, 103 S. Ct. 1625 (1983), has been made." In Bell, the court held
that "To disallow punitive damages in Section 1983 actions solely on the basis of
restrictive state tort law would seriously hamper the deterrence effect of Section
1983." (Id., 746 F.2d, at 1241.) See also McFadden v. Sanchez, 710 F.2d 907 (2d
Cir. 1983).
3. DAMAGES FOR VIOLATION OF A CONSTITUTIONAL RIGHT
MAYALLOW FOR RECOVERY BY AN ESTATE FOR PAIN ANDSUFFERING
OF THE DECEASED BEFORE HIS/HER DEATHCAUSED BY THE
VIOLATION
A number of federal precedent supports the position that an estate may
7

recover "loss of life and pain and suffering of the deceased in an § 1983 action.
In Guyton v. Phillips, 532 F. Supp. 1154 (N.D. Cal. 1981) the action was brought
by the estate of the deceased minor by his mother. Guyton was an age 14 years,
small, slight, black male whose death was caused by gunshot wounds inflicted
by two officers following a car chase. Id., 1156. Under state survival law the
estate could not recover for pain and suffering sustained prior to death nor for
the loss of life. Citing Carey v. Piphus, 435 U.S. 247, 253 (1978) for the
proposition that state common-law tort rules of damages may be inconsistent
with the policy underlying § 1983, the court held that the estate was entitled to
recover for loss of life and pain and suffering. Plaintiff could therefore recover
under § 1983.
However, taking heed of the guidance offered by the majority in Robertson,
this court follows what appears to be the present interpretation of § 1988.
(Fn and cite omitted.) Therefore, we look to the state statute, and if an
inconsistency with federal law is found, we look to federal common law.
This court is persuaded by the intent of the Act, the narrow ruling and
discussion by the Supreme Court in Robertson, and the holdings in Basista v.
Weir, supra, and its progeny, that California's survival statute, insofar as it
excludes recovery for pain and suffering, is inconsistent with § 1983. Its
restrictions on recovery are significantly inhospitable to the policies fostered
by the Act. (Cites omitted.) To deny recovery for pain and suffering would
strike at the very heart of a § 1983 action. Id., 1166.5
In Williams v. City of Oakland, 915 F. Supp. 1074, (N.D. Cal. 1996)
plaintiff filed her § 1983 alleging that officers unlawfully seized, searched and
used excessive force. Plaintiff died before the action was tried from causes
unrelated to the incident. Her husband substituted into the action as the
administrator of her estate representing himself and her heirs and survivors. The
court concluded that California survival law's disallowance of recovery for a
deceased plaintiffs pain and suffering, as expressed in C.C.P § 377.34, is
"inconsistent with section 1983 [even in cases] when the victim's death was not a
result of the constitutional violation." (Id., 1077.)Guyton distinguished Robertson
and found that the implications of adopting the limitation contained in the
5

The Guytoncourtat fn. 6 found it important to note that pain and suffering sustained prior to death is recoverable in
a majority of jurisdictions as having survival statutes or. hybrid survival-wrongful death statutes that allow recovery
for a decedent's conscious pain and suffering prior to death: Arkansas, Connecticut, Delaware, District of Columbia,
Florida, Georgia, Illinois, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Mississippi,
Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York North Carolina, Ohio,
Pennsylvania, Puerto Rico, South Carolina, South Dakota, Tennessee, Texas, Vermont, and Wisconsin, in addition
to specific federal statutes and decisions under the general maritime law.

8

California statute were far broader than the very limited ones in Robertson where
the pain and suffering damages abated only because that plaintiff had no next of
kin survivors.
Here, the deceased plaintiffs husband is in a position to vindicate his wife's
rights and receive an award of compensatory damages. He is within the
familial range of those affected by defendants' conduct. To deprive him or
other survivors of the only element of damages that the deceased might have
been able to recover would have a serious adverse effect on the policies
underlying section 1983. This holding comports with the conclusions in
comparable cases decided by federal appellate and district courts. Berry v.
City of Muskogee, 900 F.2d 1489 (10th Cir. 1990) involved an action where
the death was caused by the section 1983 violation. The Tenth Circuit
discussed the need for compensation for victims of section 1983 violations
and found that a state survival statute which cut off nearly all damages
available to the decedent failed to satisfy the purposes of the federal law. Id.
at 1504-06. In Bell v. City of Milwaukee, 746 F.2d 1205, 1234-42, 1250-53
(7th Cir. 1984), the Seventh Circuit adopted the state survival statute but
found the monetary limitations in the state's wrongful death statute at odds
with the purposes of section 1983. The court upheld an award of damages
above the state limit in order to vindicate the deprivation of constitutional
rights. Similarly, in Larson v. Wind, 542 F. Supp. 25, 27 (N.D. Ill. 1982),a
district court found that a state survivorship statute which precluded
recovery for punitive damages was inconsistent with section 1983. Larson
also involved a plaintiff who died from causes unrelated to the conduct
complained of in the action. The court went on to say that "section 1983's
purpose of deterrence would be subverted by slavish application of a state
survivorship rule denying punitive damages." Id. (Id., 1078-1079.)
In Garcia v. Whitehead, 961 F. Supp. 230 (C.D. Cal., 1997) then District
JudgePragerson denied defendant's motion in limine to not allow pain and
suffering of the deceased as damages in a § 1983 action against the County of San
Bernardino and a deputy alleging excessive force was used against the Decedent.
There the Courtstated:
Thus, the deterrent purpose of section 1983 "is hardly served when the
police officer who acts without substantial justification suffers a harsher
penalty for injuring or maiming a victim than for killing him." [cite omitted]
The Guyton court concluded that "to deny pain and suffering damages would
strike at very heart of a section 1983 action . . . . Absent such a remedy, the
section 1983 claim amounts to little more than a tort claim." Id.
9

InDavis v. City of Ellensburg, 651 F. Supp. 1248, 1256 (E.D. Wash. 1987),
the 1983 claim arose out of the decedents' death during his arrest. The defendants
based their position that the § 1983 claims were subject to Washington's survival
statute precluding recovery for "pain and suffering ... personal to and suffered by a
deceased." Id., 1255-56, quoting Wash. Code 4.20.046(1) (1988). Plaintiffs argued
that Guyton v. Phillips, was more applicable in that the statues' limitation on
recovery of pain and suffering prior to death was inconsistent with § 1983's
deterrent objective.Id., 1250.
The court agreed that the holding in Robertson v. Wegmann, should not be
extended to cases where a constitutional violation results in the victim's death. The
Daviscourt agreed that applying Washington's survival statute that excluded
damages for pain and suffering would be inconsistent with § 1983 because
defendants would not be sufficiently deterred from killing their victims, where the
constitutional deprivation results in death would create a rule in terms of liability
and deterrence where, from the point of the defendant, "it was better to kill them
than leave them alive." The Davis court phrased the contrary situation as a
"substantial deterrent effect to conduct that results in the injury of an individual but
virtually no deterrent to conduct that kills the victim. Id., 1256.
Similarly, in Heath v. City of Hialeah, 560 F. Supp. 840 (S.D. Fla. 1983), in
a 1983 action brought by the estate of a youth who was shot and killed by a
policeofficer, the court held that aFlorida law which would preclude survival of the
action was inconsistent with § 1983 policy, and that federal common law which
allows the action to survive governed the estate's recovery.(Seealso O'Connor v.
Several Unknown Correctional Officers, 523 F. Supp. 1345 (E.D. Va. 1981), (state
law held to be inconsistent with the § 1983 policy of deterring unconstitutional
deprivations of life by state officials, allowing the estate's § 1983 claim.)
In Sanchez v. Marquez, 457 F. Supp. 359 (D. Colo. 1978) the personal
representative of the estate (and other plaintiffs) brought a § 1983 action against
officers who wrongfully shot and killed the representative's brother. State law
permitted survival of the action, but limited recovery to the victim's loss of
earnings sustained prior to death. The court, noting that "it is inconsequential that
the actions under color of state law which violate a federally protected right may
also constitute a tort," held that § 1983 was not intended to incorporate such
restrictive damage limits. (Id., 362.) Other cases rejecting restrictive state laws on
damages in § 1983 cases, see Sager v. City of Woodland Park, 543 F. Supp. 282 (D.
Colo. 1982) and Jackson v. Marsh, 551F. Supp. 1091 (D. Colo. 1982).
In Banks v. Yokamick, 177 F. Supp. 2d 239 (SDNY 2001) Decedent Banks
10

was riding a bicycle in Manhattan on October 29, 1998 when Officer Yokemick,
who was chasing Banks, threw his police radio at him, striking the side or rear of
Banks's head with sufficient force to knock him off the bicycle and cause him to
fall to the street. The jury also heard evidence indicating that Yokemick did not
immediately disclose to other officers who arrived at the scene and drove Banks
away to the police station, or to personnel at the precinct, or to ambulance
attendants who later transported Banks to the hospital, that Banks had been struck
on the head by Yokemick's radio. Banks's life could not be saved by the time he
was finally taken to the hospital and properly diagnosed later that day as having
suffered head injuries. Hours after his arrival at the hospital he went into a coma,
was pronounced brain dead two days later. An autopsy determined the cause of
Banks's death as having resulted from a blunt impact to the head that fractured his
skull and produced brain contusions. (Id., 243244.)
The jury awarded plaintiff a total of $ 605,001 consisting of (1) $ 25,000 for
'Banks's conscious pain and suffering and $ 500,000 for his loss of life, both
connected with the claim of use of excessive force; (2) $ 75,000 for Banks's pain
and suffering associated with a state law claim for negligent delay in obtaining
medical assistance; and (3) $ 5,000 on Banks's state law wrongful death cause of
action, and (4) nominal damages of $ 1.00 on Banks's claim of unlawful arrest.
In upholding the verdict, the Court stated:
Uniformly, the courts have ruled that when a violation of federal rights
protected by § 1983 does cause the decedent's death, state laws that either
extinguish the survival action or bar recovery for loss of life, effectively
abate a § 1983 claim of deprivation of life, are inconsistent with § 1983, and
warrant application of a federal rule of decisionpursuant to § 1988. See
Berry, 900 F.2d at 1501("We are satisfied that Congress intended significant
recompense when a constitutional [**23] violation caused the death of a
victim. The general legislative history of the 1871 act makes clear that death
was among the civil rights violations that Congress intended to remedy.");
Bass v. Wallenstein, 769 F.2d 1173, 1189-90 (7th Cir. 1985)(holding that
where the constitutional violation has caused death, "state law that precludes
recovery on behalf of the victim's estate for loss of life is inconsistent with
the deterrent policy of section 1983.") (citingBell v. City of Milwaukee, 746
F.2d 1205, 1234 (7th Cir. 1984)); Jaco v. Bloechle, 739 F.2d 239 (6th Cir.
1984); McFadden v. Sanchez, 710 F.2d 907, 911 (2d Cir. 1983). (Id., 250.)
The Banks court concluded that based on the reasoning and precedent of the
authorities cited the court found that insofar as New York's survivorship of claims
11

statute would bar recovery of the damages that the jury awarded for Banks's loss of
enjoyment of life, the state law fails to take into account policies analogous to the
goals expressed in § 1983 and sustained the jury's verdict awarding damages for
loss of enjoyment of life and pain and suffering of the decedent. (Id., 252-253.)
Not all jurisdictions have adopted the Guyton analysis and adopt the position
that limitations on decedent's pain and suffering are not inconsistent with 1983's
policy of deterrence. For example, in Garcia v. Superior Court, 42 Cal. App. 4th
177 (1996), a § 1983 action brought by the estate alleged excessive force claim
which caused the death of plaintiff's brother, the trial court struck the claim for
decedent's pre-death pain and suffering damages. The plaintiff appealed asserting
the state statute was inconsistent with federal law, and the policies underlying §
1983. Court of Appeal declined to follow the reasoning of Guyton and concluded
that the deterrent purpose of § 1983 is satisfied by the fact that the state survival
statute (Cal. Code Civ. Pro. § 377.34) expressly allows punitive damages which the
decedent would have been entitled to recover had he survived. The Garcia court
also reasoned that the statutory scheme for survivors, taken as a whole, provides
adequately for compensatory damages, because the designated heirs can bring a
wrongful death action. Id., 581-582.
Garcia specifically rejected the reasoning of Guyton and Bell that denial of
pain and suffering damages would effectively create an incentive for wrongdoers to
"kill the victim rather than merely injure or maim the victim." Id., 585-585.The
reasoning of Garcia v. Superior Court was rejected in Garcia v.Whitehead, 961 F.
Supp. 230 (C.D. Cal. 1997) a § 1983 action alleging a shooting death by a deputy,
specifically the conclusion that punitive damages provides an adequate deterrent in
cases where the victim of a constitutional deprivation is deceased. Id., 233.
The Court does not find persuasive the notion that punitive damages provide
an adequate deterrent effect. Even where a constitutional violation is found,
punitive damages are never available against the agency itself in a section
1983 action, and are not always warranted against the individual defendant.
Furthermore, as Judge Patel noted in Williams, "the amount of those
[punitive] damages will be governed by the financial condition of the
individual officer without regard to the pain and suffering he may have
inflicted on the decedent." 915 F. Supp. at 1078.The amount of punitive
damages awarded against the typical civil servant is therefore likely to be
relatively small. Id.

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