By Anthony Gair;
Resolution of whether a plaintiff has a viable action pursuant to 42 U.S.C. §1983 turns on whether the applicable state statute is inconsistent with the Constitution and laws of the United States; Robinson v. Wegman, 436 U.S. 584, 98 S. Ct. 1991 (1978) citing 42 U.S.C. §1988. New York’s wrongful death law which limits damages to pecuniary loss is clearly inconsistent with the Constitution and laws of the United States.
In Sinkov v. AmeriCor, Inc., 419 Fed. Appx. 86,(2d Circ.,2011) an action for wrongful death of a decedent with no dependents The Court held;
“AmeriCor correctly points out that under New York law, post-death lost-earnings damages are not recoverable in wrongful death cases where a decedent leaves behind no dependents and no persons who reasonably expect to receive future support from him. See Freier v. Westinghouse Elec. Corp., 303 F.3d 176, 199-200 (2d Cir. 2002); Zelizo v. Ullah, 2 A.D.3d 273, 769 N.Y.S.2d 255 (1st Dep’t 2003). Had the district court admitted Dr. Crakes’s earnings testimony as bearing on plaintiffs’ state law claims, we would agree that his testimony was irrelevant and should have been excluded. But that is not what the district court did. The record makes clear that Dr. Crakes’s testimony regarding loss of earning capacity was introduced only for, and was explicitly limited to, the estate’s 42 U.S.C. § 1983 claim.
The New York authority on which AmeriCor relies does not address the extent of damages permitted in an action for violation of constitutional rights. We have long recognized that when state law damages limitations conflict with the purposes of § 1983, we need not defer to those limitations. We have long recognized that when state law damages limitations conflict with the purposes of § 1983, we need not defer to those limitations. We have concluded in the past, for example, that New York’s survival statute was inconsistent with § 1983 because (at the time) the New York statute “prevent[ed] the survival of claims for punitive damages after the death of the plaintiff’s decedent.” McFadden v. Sanchez, 710 F.2d 907, 911 (2d Cir. 1983). In McFadden, we stated that we have no doubt that limitations in a state survival statute have no application to a [§] 1983 suit brought to redress a denial of right that caused the decedent’s death. To whatever extent [§] 1988 makes state law applicable to [§] 1983 actions, it does not require deference to a survival statute that would bar or limit the remedies available under [§] 1983 for unconstitutional conduct that causes death.”
In the oft-cited case Jaco v. Bloechle, et. al., 739 F.2d 239 (6th Circ., 1984) the 6th Circuit Court of Appeals followed the reasoning of the Supreme Court in Robertson in reversing the dismissal of plaintiff’s §1983 complaint.
In Jaco plaintiff’s son was shot and instantly killed by police officers. Among the actions brought by plaintiff alleging violation of decedent’s civil rights were claims predicated upon violations of the decedent’s Constitutional rights and 42 U.S.C. §1983. The appeal ensued when the District Court held that decedent’s civil rights cause of action did not survive his death and thus granted defendant’s Motion to Dismiss.
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New York Personal Injury Attorneys Blog
A 12 year old boy who was killed by a Cleveland Police Officer is the last victim of a long history of police brutality in the city of Cleveland. A year and half ago the feds launched an investigation of the Cleveland Police Department after several high profile use of force incidents and numerous public demands for a federal investigation by civic leaders and local politicians. The Justice Department released their report Thursday afternoon. The report found that officers used on a regular basis unjustifiable force not only against criminals but also against innocent victims of crime. Among the allegations, the feds report that Cleveland officers in recent years punched a handcuffed 13 year old boy who was shoplifting. They also shot an unarmed kidnapping victim who was only wearing his underwear. 