Guyton v. Phillips (N.D. Cal. 1981)
532
F.Supp. 1154 involved a federal civil rights claim in the Northern District of California, for the shooting death of a suspect in police custody. Although California damages law would normally apply, the court held that California’s prohibition of recovery for pain and suf- fering in a survival action was inconsis- tent with the purposes underlying federal civil rights law. Because of such inconsis- tency, the court was empowered to apply its own standards under 42 U.S.C. §1988. (Id., at 1166.) But Guyton did not stop there. The
court noted the deterrent function underlying section1988 and declared “that purpose is hardly served when the police officer who acts without justifica- tion suffers a harsher penalty for injuring or maiming a victim than for killing him ...¶ A remedy must obtain by reason of the actual deprivation – in this case the greatest of deprivations, loss of life.” (Id., at p.1167.) The Guyton court also noted that California’s prohibition of pre-death pain and suffering differs from the majority of states. (Id., at 1166, fn. 6, list- ing 32 jurisdictions allowing for pre- death pain and suffering.)
Pre-death pain and suffering – state or federal court?
The vast majority of jurisdictions
allow for recovery of a decedent’s pre- death pain and suffering. (Stein, Jacob, Stein on Personal Injury Damages, §3:57 (3rd Ed. 1997).) At least 32 states allow for recovery of pre-death pain and suffer- ing. For a comprehensive list, see Speiser, S., Recovery for Wrongful Death, §14.8 (4th Ed. 2005). California is in the minority of states that disallow recovery for pain and suffering. But California does make an exception for pre-death pain and suffer- ing in a survivor action for elder abuse. (Welf. & Inst. Code, §15657(b).) Any attorney evaluating a death case
in California should explore the possibili- ty of recovering pre-death pain and suf- fering damages under a federal cause of action in federal court. Claims under the Federal Employers Liability Act (FELA) (45 U.S.C. § 59),
and by extension the Jones Act (46 U.S.C. §30104, incorporating FELA), allow for recovery of pain and suffering damages in a survival action (St. Louis,
Iron Mountain, & Southern Rwy. Co. V. Craft (1915) 237 U.S. 648657-658), as does the general maritime law. (Saavedra v. Korean Air Lines Co., Ltd. (9th Cir. 1996)
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DrGraboff@gmail.com • Huntington Beach, CA JANUARY 2012 The Advocate Magazine — 59
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