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
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 ...