Garcia

Introduction

Following his arrest, which allegedly was accomplished with excessive force including a carotid chokehold, decedent Philip Vogel died of asphyxiation. Alleging that the police and paramedics violated decedent’s federal civil rights, decedent’s sister, in her capacity as representative of his estate, brought this action pursuant to the federal Civil Rights Act, 42 United States Code section 1983 . In this case we decide whether California’s statutory provision for damages in a survival action adequately fulfills the requirements of the federal Civil Rights Act. We hold that it does.

California’s statute governing survival of actions, Code of Civil Procedure section 377.34, provides that the only damages recoverable in an estate’s lawsuit on the decedent’s cause of action are the damages sustained by decedent before death and punitive damages the decedent would have been entitled to had decedent lived; it expressly excludes damages for the decedent’s pain and suffering. Plaintiff contends that these limitations in the California statute are inconsistent with federal law, and that in order to effectuate the policies of the federal Civil Rights Act, plaintiff…