Badia v. City of Casa Grande3/16/1999
d Ms. Perez, as an arrestee" nor precluded summary judgment here. The issue of whether a duty exists is a question of law for the court, unaffected by expert opinion. See Riddle v. Arizona Oncology Services, 186 Ariz. 464, 924 P.2d 468 (App. 1996); Hafner v. Beck, 185 Ariz. 389, 916 P.2d 1105 (App. 1995). Defendants had no constitutional duty to protect Perez after releasing her from custody, DeShaney, and any alleged acts or omissions while she was in custody, therefore, are of no consequence with respect to her due process claim. Because defendants did not "deprive [Perez] of right 'secured by the Constitution and laws of the United States,'" defendants were entitled to judgment as a matter of law on plaintiff's § 1983 due process claim. Martinez v. California, 444 U.S. 277, 284, 100 S. Ct. 553, 558, 62 L. Ed. 2d 481, 488 (1980), quoting Baker v. McCollan, 443 U.S. 137, 140, 99 S. Ct. 2689, 2692, 61 L. Ed. 2d 433, 439 (1979).
II. Section 1983 Excessive Force Claim
Plaintiff next contends the trial court erred in granting summary judgment on her claim that the officers violated the Fourth Amendment and § 1983 by using excessive force in arresting Perez. The trial court ruled that plaintiff introduced "sufficient evidence, including expert testimony, to withstand a directed verdict on this issue," but concluded that, "as a matter of law, this cause of action does not survive the death of the defendant , unless the excessive force was the cause of death." Contrary to plaintiff's contention that the trial court "muddled" the issues of survival and damages, the court noted specifically that, although the cause of action might survive under A.R.S. § 14-3110, the only possible damages would be for Perez's pain and suffering, which the statute expressly precludes.
Section 1983 itself does not provide specific remedies or address the survivability of actions for civil rights violations. Pursuant to 42 U.S.C. § 1988(a), when federal law does not provide suitable remedies for such violations, courts are "to turn to 'the common law, as modified and changed by the constitution and statutes of the [forum] State' as long as these are 'not inconsistent with the Constitution and laws of the United States.'" Robertson v. Wegmann, 436 U.S. 584, 588, 98 S. Ct. 1991, 1994, 56 L. Ed. 2d 554, 560 (1978), quoting 42 U.S.C. § 1988. Courts therefore look to state statutes in defining the remedies available under § 1983. In doing so, however, the court must determine "whether application of state law 'would be inconsistent with the federal policy underlying the cause of action under consideration.'" Robertson, 436 U.S. at 590, 98 S. Ct. at 1995, 56 L. Ed. 2d at 561, quoting Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 465, 95 S. Ct. 1716, 1722, 44 L. Ed. 2d 295, 304 (1975).
The fundamental policies underlying § 1983 are to deter unconstitutional acts committed under color of state law and to compensate the victims of such acts. Robertson; Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984). Pursuant to Arizona's survival statute, every cause of action, with certain exceptions not applicable here, survives "the death of the person entitled thereto or liable therefor," but damages for the decedent's pain and suffering "shall not be allowed." A.R.S. § 14-3110. See Harrington v. Flanders, 2 Ariz. App. 265, 407 P.2d 946 (1965) (holding provision of survival statute prohibiting damages for pain and suffering on death of person injured constitutional). Plaintiff argues that disallowing damages for Perez's pain and suffering is inconsistent with the policy of § 1983, and that § 14-3110 should not, therefore, be applied to bar recovery on her claim of excessive force in this case.
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