JONES v. HILDEBRANT et al.
No. 76-5416.
Argued April 26, 1977
Decided June 16, 1977
David K. Rees argued the cause for petitioner. With him on the briefs was Walter L. Gerash.
Wesley H. Doan argued the cause for respondents. With him on the brief was Robert E. Goodwin.
Robert A. Murphy, Richard S. Kohn, Norman J. Chachkin, William E. Caldwell, Vilma S. Martinez, Morris J. Bailer, and Nathaniel R. Jones filed a brief for the Lawyers’ Committee for Civil Rights Under Law et al. as amici curiae urging reversal.
Per Curiam.
Petitioner is the mother of a 15-year-old boy who was shot and killed by respondent Hildebrant, while respondent was acting in his capacity as a Denver police officer. Petitioner brought suit in her own behalf in state court. Respondent defended on the ground that he shot petitioner’s son as a fleeing felon using no more force than was reasonably necessary. The amended complaint asserted three claims for relief: battery; negligence; and intentional deprivation of federal constitutional rights. Although not specifically pleaded, the first two claims were admittedly based on the Colorado wrongful-death statute, Colo. Rev. Stat. Ann. § 13-21-202 (1973), and the third, on 42 U. S. C. § 1983. While petitioner alleged damages of $1,500,000, she stipulated to a reduction of her prayer for relief with respect to the first two claims, since the Colorado wrongful-death statute admittedly limited her maximum recovery to $45,000, Colo. Rev. Stat. Ann. § 13-21-203 (1973). The trial court also ruled that petitioner’s § 1983 claim was “merged” into her first claim and, accordingly, dismissed her § 1983 claim. The remaining claims went to the jury, which returned a verdict for $1,500.
On petitioner’s appeal, the Supreme Court of Colorado affirmed. 191 Colo. 1, 550 P. 2d 339 (1976). Her petition for certiorari presented a single question for review here:
“Where the black mother of a 15-year-old child who was intentionally shot and killed by a white policeman acting under the color of state law brings a suit in state court pursuant to 42 U. S. C. § 1983, what is the measure of damages? Particularly, can the state measure of damages cancel and displace an action brought pursuant to 42 U. S. C. § 1983?”
We granted certiorari to consider what was thus explicitly presented as a question of whether a State’s limitation on damages in a wrongful-death statute would control in an action brought pursuant to § 1983. 429 U. S. 1061 (1977).
The majority opinion in the Supreme Court of Colorado proceeds on the assumption that if the Colorado wrongful-death statute applied to petitioner’s claim, her recovery would be limited to $45,000. It held that this limitation did apply even to the one count of petitioner’s complaint based on 42 U. S. C. § 1983.
A necessary assumption for this position would seem to be that petitioner was suing to recover damages for injuries under § 1983 which were the same injuries as are covered by the state wrongful-death action. The question presented in the petition for certiorari is at the very least susceptible of that interpretation. But at oral argument, we were advised by counsel for petitioner that her sole claim of constitutional deprivation was not one of pecuniary loss resulting from her son’s wrongful death, such as would be covered by the wrongful-death statute, but one based on her personal liberty. Her claim was described at oral argument as a constitutional right to raise her child without interference from the State; it has nothing to do with an action for “wrongful death” as defined by the state law. Tr. of Oral Arg. 4-5; see also id., at 8-13.
An action for wrongful death, under Colorado law, is an action which may be brought by certain named survivors of a decedent who sustain a direct pecuniary loss upon the death of the decedent. It is “classified as a property tort action and cannot be classified as a tort action 'for injuries done to the person,’ ” Fish v. Liley, 120 Colo. 156, 163, 208 P. 2d 930, 933 (1949). Petitioner, however, articulates here a quite different constitutional claim which does not fit into the Colorado wrongful-death mold. While petitioner’s constitutional claim is based on an alleged deprivation of her own rights, and not on deprivation of those of her son’s, the asserted deprivation is not for any “property loss,” but, rather, for the right of a child’s mother to raise the child as she sees fit.
This claim was not set forth in the complaint, was not even hinted at in petitioner’s briefs to the Supreme Court of Colorado, and is only casually referred to in the opinion of that court. The majority opinion held that insofar as a claim for actual pecuniary loss was a property right conferred upon petitioner by the State’s wrongful-death statute, the damages recoverable under it were limited by the terms of that statute. The majority opinion also refers in passing to a constitutional liberty right in petitioner herself, but its principal thrust is that petitioner's liberty claims, as presented to that court, are “really those of her son,” and not claims personal to her. This discussion, which occurs subsequent to that portion of the opinion in which the Supreme Court of Colorado concluded that state wrongful-death remedies were incorporated into § 1983 to vindicate civil rights violations “that result in death,” does not intimate that similar limitations would exist in a § 1983 action where the alleged deprivation was that of liberty to a living plaintiff suing for a wrong done to her. We do not know how the Supreme Court of Colorado would have ruled on the damages limitation question had it found the § 1983 claim to be that of the deprivation of the mother’s right to raise the child.
We have here then a shift in the posture of the ease such that the question presented in the petition for certiorari is all but mooted by petitioner’s oral argument. The question of whether a limitation on recovery of damages imposed by a state wrongful-death statute may be applied where death is said to have resulted from a violation of 42 U. S. C. § 1983 would appear to make sense only where the § 1983 damages claim is based upon the same, injuries. This is the assumption on which the Supreme Court of Colorado proceeded in discussing whether the § 1983 claim “merged” in the wrongful-death claim. The court does not intimate, or decide, that a § 1983 claim based on an alleged deprivation such as petitioner asserts here — if the claim were otherwise cognizable — would require remedial assistance from the state wrongful-death statute or that recovery on such a claim would be limited by that statute.
Petitioner’s question presented assumes that the underlying constitutional violation necessary to support a § 1983 claim on her behalf is undisputed, and that the only question upon which petitioner takes issue with the majority of the Supreme Court of Colorado is the limitation on the amount of recovery. But it would seem possible, if not probable, that if petitioner had presented to the Supreme Court of Colorado the same claim she presented here in oral argument, that court’s opinion would not have turned on the application of the state wrongful-death statute as a limitation on recovery of damages, since the underlying § 1983 claim — deprivation of a right to raise children — is not at all the same underlying claim for which the wrongful-death action provides recompense. Whatever the merits of her constitutional liberty claim in her own right, a question on which we do not intimate an opinion, it would not seem logically to be subject to a damages limitation contained in the statute permitting survivors to recover for wrongs done to a property interest of theirs. In presenting to this Court in her petition for certiorari solely a damages issue of this nature, petitioner has wholly preter-mitted the underlying question of whether she has been deprived of any constitutional liberty interest as a result of respondent’s shooting of her son.
In sum, the damages question which petitioner presents in her petition for certiorari is only the tip of the iceberg. The question of whether she was deprived of a constitutional liberty interest of her own was neither alleged in her complaint in the Colorado trial court, presented in the petition for certiorari in this Court, nor fairly subsumed in the question that was presented. See this Court’s Rule 23 (l)(c). The writ of certiorari is therefore dismissed as improvidently granted. Belcher v. Stengel, 429 U. S. 118 (1976).
It is so ordered.
Section 13-21-202:
“When the death of a person is caused by a wrongful act, neglect, or default of another, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable, if death had not ensued, shall be liable in an action for damages notwithstanding the death of the party injured.”
The jury had been instructed that damages in a wrongful-death action were limited to net pecuniary loss, see Herbertson v. Russell, 160 Colo. 110, 371 P. 2d 422 (1962). This loss is the financial loss sustained by petitioner as a result of the death of her son, and would include the value of any services that he might have rendered and earnings he might have made while a minor, as well as any support he might have provided after becoming an adult, less the expenses petitioner would have incurred in raising him. The award apparently included, in this case, funeral expenses. The Supreme Court of Colorado upheld the instructions and the award, 191 Colo., at 3 n. 1, 550 P. 2d, at 341 n. 1. These issues, of course, are not before us except as they might bear on petitioner’s § 1983 claim.
See n. 2, supra.
Petitioner explicitly acknowledged at oral argument that she had not brought a claim for vindication of her son’s rights; in essence, an action on his behalf. See Tr. of Oral Arg. 6, 17-18, 20. This is clear, as well, from the manner in which the complaint is drafted, as well as the parties’ perception that the closest available state statute is the Colorado wrongful-death statute, rather than the Colorado survivorship statute, Colo. Rev. Stat. Ann. § 13-20-101 (1973). See Tr. of Oral Arg. 17-18, 20. See generally C. McCormick, Law of Damages 336 (1935); 2 F. Harper & F. James, The Law of Torts §§24.1-24.3 (1956). Petitioner sued individually as the mother of the decedent and not as the administratrix of the decedent’s estate.
Petitioner apparently relies on Meyer v. Nebraska, 262 U. S. 390 (1923), and its progeny as the basis for her asserted constitutional deprivation. As articulated at oral argument, petitioner’s contention appears to be: “[T]his Court has held on several occasions that a parent has a constitutional right to raise their child, and that that child cannot be taken from them without the due process of law.” Tr. of Oral Arg. 4-5.
Her complaint alleged that she was deprived of
“a. Her child’s right to life;
“b. The right to her child’s freedom from physical abuse, coercion, intimidation, and physical death; and
"c. Her right to her children’s equal protection of the laws.” App. 3. Nowhere does she allege her asserted constitutional right to raise her child.
The court was referring to the assertions in the complaint, quoted in n. 6, swpra. It then raised, and rejected, another argument in the following passage:
“Furthermore, the state did not directly attempt to restrict her own personal decisions relating to procreation, contraception, and child-rearing which are involved in Griswold v. Connecticut, 381 U. S. 479 . . . (1965), and Meyer v. Nebraska, 262 U. S. 390 . . . (1923). Although the death of a family member represents a loss to her, we, nonetheless, are of the opinion that § 1983 was not designed to compensate for these collateral losses resulting from injuries to others.” 191 Colo., at 9, 550 P. 2d, at 345.
Petitioner rejects the view that the claims are based on the same injuries: “The key is that the remedy ... is for the deprivation of civil rights — not for wrongful death.” Reply Brief for Plaintiff-Appellant in the Supreme Court of Colorado 7.
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