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LARSON v. WIND

May 13, 1982

JAY LARSON, PLAINTIFF,
v.
THOMAS WIND, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

Jay Larson ("Larson") originally sued the Villages of Addison ("Addison") and Villa Park ("Villa Park"), the City of Elmhurst ("Elmhurst") and several of those municipalities' identified and unidentified police officers, alleging that all defendants violated Larson's civil rights in connection with the December 28, 1980 shooting of Larson by Addison police officer Thomas Wind. On January 25, 1982 Larson died from causes unrelated to the shooting incident.

Defendants now move to dismiss Larson's 42 U.S.C. § 1983 ("Section 1983") action (or alternatively, to strike the Complaint's claims for punitive damages) as having abated on Larson's death. For the reasons stated in this memorandum opinion and order, defendants' motions are denied in their entirety.

Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978) teaches that the answer to Section 1983 survivability questions is to be found in 42 U.S.C. § 1988 ("Section 1988"). Section 1988 provides that when federal law is "deficient" as to "suitable remedies" in civil rights actions, federal courts are to apply:

  the common law, as modified and changed by the
  constitution and statutes of the State wherein the
  court having jurisdiction of [the] civil . . . cause
  is held, so far as the same is not inconsistent with
  the Constitution and laws of the United States.

To that end Robertson, 436 U.S. at 594, 98 S.Ct. at 1997, directs inquiry into whether strict application of the state survivorship law "has [an] independent adverse effect on the policies underlying § 1983." Thus defendants must obtain negative answers to each of two questions:

    (1) Does Illinois law permit survival of the claim
  at issue (either the cause of action itself or the
  prayer for punitive damages)?
    (2) If not, does enforcement of such non-survival
  have "an independent adverse effect on the policies
  underlying" Section 1983?

One step rather than two suffices to preserve Larson's claims on the merits as to the individual defendants. Ill.Rev.Stat. ch. 110 1/2, § 27-6 (the "Survival Act") provides:

  In addition to the actions which survive by the
  common law, the following also survive: . . . actions
  to recover damages for an injury to the person
  (except slander and libel), . . . actions against
  officers for misfeasance, malfeasance, nonfeasance of
  themselves or their deputies. . . .

In Beard v. Robinson, 563 F.2d 331, 333-34 (7th Cir. 1977) our Court of Appeals held the Survival Act assured survival of a Section 1983 action against police officers as one "against officers for misfeasance, malfeasance, or nonfeasance of themselves or their deputies."

True enough, the plaintiff's decedent in Beard had died from the same conduct that underlay the substantive Section 1983 claim. Larson's case is not factually identical, for his death was unrelated to the December 28, 1980 shooting. But that is a distinction without a difference in Survival Act terms.

Both Beard and this case involve shootings by police officers. In Survival Act language, each complaint claims "misfeasance" or "malfeasance." Whether the allegedly wrongful conduct caused death (as in Beard) or did not (as here) is wholly irrelevant. Larson's claim is unabated.*fn1

As for the defendant municipalities, Larson's action against them could well be viewed as one "to recover damages for an injury to the person," also kept alive by the Survival Act. And even were that not the case, the second stage of the Robertson analysis would preserve the claim. Monell v. Department of Social Services, 436 U.S. 658, 664-89, 98 S.Ct. 2018, 2022-35, 56 L.Ed.2d 611 (1978) reflects a studied judgment by the Supreme Court that to permit Section 1983 actions against municipalities importantly serves the underlying policies of that statute. This Court's earlier opinion in this case, No. 81 C 1061 (N.D.Ill. Feb. 22, 1982), sustained Larson's claim against the municipalities in direct reliance on Monell. It would clearly disserve the ...


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