Deborah Carringer v. Stanley Rodgers

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 12, 2002
THOMAS K. KAHN
No. 01-15258 CLERK
________________________
D. C. Docket No. 99-00600 CV-JAL

DEBORAH CARRINGER,
Plaintiff-Appellant,

versus

STANLEY RODGERS,
CITY OF BARNESVILLE,
ETHEL TESSMER,
Respondents-Appellees.

________________________

Appeal from the United States District Court
for the Middle District of Georgia
_________________________

(June 12, 2002)

Before ANDERSON, HULL and KENNEDY*, Circuit Judges.

PER CURIAM:

*
Honorable Cornelia G. Kennedy, U.S. Circuit Judge for the Sixth Circuit, sitting by
designation.
 Plaintiff Deborah Carringer appeals the district court’s dismissal of her state-

law claims against all three defendants, as well as its grant of summary judgment to

two of the defendants on her § 1983 claims. Plaintiff’s claims arise out of the murder

of her son. Plaintiff contends that the district court erred in concluding that she lacked

standing to bring a wrongful death action under Georgia law, and also in concluding

that she did not have standing to assert § 1983 claims because she was not her son’s

personal representative. After review, we find that it is necessary to certify three

questions of Georgia law to the Georgia Supreme Court.

I. BACKGROUND

In September 1997, Plaintiff Carringer’s son, David Newton, married

Defendant Ethel Tessmer, a police captain for Defendant City of Barnesville (the

“City”). Shortly thereafter, in November 1997, Tessmer attempted suicide. As a

result, Defendant Stanley Rodgers, as Chief of Police for the City, ordered Tessmer

to remove all weapons from her home. Defendant Rodgers did not, however,

relieve Tessmer of her duties, and thus she continued to carry her service revolver.

In January 1998, less than four months after their marriage, Defendant

Tessmer shot and killed Newton with her service revolver. A jury convicted

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Tessmer of felony murder, and she is currently incarcerated in state prison.1

Other than Tessmer, Newton is survived by only his mother, Plaintiff

Carringer. Upon Carringer’s application, the Lamar County Probate Court

appointed Carringer as the administrator of her son’s estate. Tessmer contested the

appointment, however, and on December 9, 1999, the Superior Court of Lamar

County reversed the Probate Court’s decision. The issue of who is to be the

administrator of Newton’s estate remains pending.

In January 2000, Plaintiff Carringer brought this lawsuit asserting § 1983

claims against Defendants Rodgers and the City, and state-law claims for wrongful

death and for funeral expenses against Defendants Tessmer, Rodgers, and the City.

Tessmer filed a motion to dismiss arguing that Carringer lacks standing to bring a

wrongful death action under Georgia law. In response, Carringer noted that

pursuant to Georgia’s wrongful death statutes, she, as a parent, would have

standing to bring a wrongful death action if her deceased son had left no spouse or

children. Carringer argued that under Georgia law, Tessmer should be treated as

though she had predeceased Newton, and asked the district court to do the same.

The district court declined to do so, strictly construing Georgia’s wrongful death

1
Tessmer’s criminal conviction was still on appeal as of the date of the district court’s
ruling on Carringer’s wrongful death claims, but that criminal conviction was subsequently
affirmed by the Georgia Supreme Court. Tessmer v. State, 539 S.E. 2d 816 (Ga. 2000).

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statutes. Likewise, the district court found that Carringer had no standing to bring

a state-law claim for funeral expenses. Shortly thereafter, the district court also

dismissed the wrongful death claims against Defendants Rodgers and the City on

the same ground.

Following the district court’s dismissal of the state-law claims, Rodgers and

the City filed a joint motion for summary judgment on the § 1983 claims. Their

motion contended that under the reasoning of the district court’s order dismissing

the wrongful death claims, Carringer also did not have standing to bring the § 1983

claims.

In granting Rodgers and the City’s motion for summary judgment, the

district court stated that its reasoning as to the state-law wrongful death claims did

not apply to the § 1983 claims because § 1983 claims are survival actions. The

district court noted that under Brazier v. Cherry, 293 F.2d 401 (5th Cir. 1961), a

federal court looks to the law of the state in which it sits to determine whether a

§ 1983 cause of action survived the death of the victim. The district court

concluded that “[b]oth Georgia case law and federal case law make clear that civil

torts that might have been brought by an individual immediately prior to his death,

can only be brought by the administrator of his estate after his death.” Therefore,

the district court concluded that Carringer lacked standing to bring the § 1983

4
claims against Rodgers and the City because § 1983 actions are survival actions

and not wrongful death actions, and Carringer was not Newton’s administrator (the

proper party to bring survival actions).2 Hence, the court granted Rodgers and the

City’s motion for summary judgment on Carringer’s § 1983 claims.

Carringer timely appealed both rulings.

II. GEORGIA’S WRONGFUL DEATH STATUTES

The Georgia legislature has enacted a statutory framework that determines

who has standing to bring a wrongful death claim. The Georgia statutes

specifically provide for various conditions under which a decedent’s surviving

spouse or children, a decedent’s parents, or a decedent’s personal representative

may bring a wrongful death action for the full value of the decedent’s life.

A. O.C.G.A. § 51-4-2

More specifically, Chapter 4 of Title 51 of the Georgia Code governs the tort

of wrongful death. Section 51-4-2(a) of the Georgia Code provides that the

surviving spouse may recover for the homicide of a spouse, as follows:

2
At oral argument in this appeal, Carringer’s counsel stated that Carringer was not
interested in pursuing the § 1983 claim as a survival action, but only as a wrongful death action.
Because Newton died instantly, Carringer instead seeks damages for the full value of Newton’s
life. We question (though we do not decide) whether Carringer is in a position to waive any
right to pursue the § 1983 claim as a survival action because Carringer is not her son’s personal
administrator. However, we understand this statement to mean that if Carringer were
reappointed as her son Newton’s personal administrator, she would not elect to pursue the
§ 1983 claim as a survival action on behalf of Newton’s estate.

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 The surviving spouse or, if there is no surviving spouse, a child or children,
either minor or sui juris, may recover for the homicide of a spouse or parent
the full value of the life of the decedent, as shown by the evidence.

O.C.G.A. § 54-1-2(a). The district court held that under the plain language of this

statute, Tessmer, not Carringer, would be “entitled to recover” for the homicide of

Newton.

B. O.C.G.A. §§ 51-4-4 and 19-7-1

Carringer asserts that O.C.G.A. § 51-4-2 should not control here because

Tessmer, as the surviving spouse, will obviously not be suing herself. Carringer

asks this court to focus instead on O.C.G.A. § 51-4-4 and O.C.G.A. § 19-7-1,

which address the rights of parents to bring a wrongful death action. Section 51-

4-4 of the Georgia Code provides in full, “The right to recover for the homicide of

a child shall be provided in Code Section 19-7-1.” O.C.G.A. § 51-4-4. Title 19 of

the Georgia Code governs “Domestic Relations” and Chapter 7 of Title 19

addresses the “Parent and Child Relationship Generally.” Section § 19-7-1(c) of

the Georgia Code in turn provides generally that in every homicide of a child, there

shall be some party entitled to recover and further provides specifically the

standing rule for parents, as follows:

(1) In every case of the homicide of a child, minor or sui juris, there shall be
some party entitled to recover the full value of the life of the child, either as
provided in this Code section or as provided in Chapter 4 of Title 51.
(2) If the deceased child does not leave a spouse or child, the right of

6
 recovery shall be in the parent or parents, if any [as provided in further
subsections of this section].”
(3) “The intent of this subsection is to provide a right of recovery in every
case of the homicide of a child who does not leave a spouse or child. If, in
any case, there is no right of action in a parent or parents under the above
rules, the right of recovery shall be determined by Code Section 51-4-5 [the
personal-representative provision, discussed herein]

O.C.G.A. § 19-7-1(c) (emphasis added). Carringer emphasizes that the Georgia

legislature has expressed an unequivocal intent to provide recovery in every case of

the homicide of a child and that because the spouse Tessmer killed Newton, this

court should treat this case as one where the decedent child did not leave a spouse,

which would allow Carringer, the decedent’s parent, to recover instead.

In this regard, the district court held that under O.C.G.A. § 19-7-1(c), “the

right to bring a claim for the wrongful death of a child inures first to a surviving

spouse or child. If there is no surviving spouse, only then is the right of recovery

in the child’s parent.” The court rejected Carringer’s argument that it should treat

Tessmer as though she had predeceased Newton for the purpose of applying

O.C.G.A. § 19-7-1. It stated that because the action for wrongful death is not an

asset of Newton’s estate, O.C.G.A. § 53-1-5 did not apply.

C. O.C.G.A. § 51-4-5

The parties also dispute whether O.C.G.A. § 51-4-5 applies here. Section

51-4-5 of the Georgia Code is a default provision that allows the administrator or

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executor to bring and action for wrongful death in certain circumstances, as

follows:

(a) When there is no person entitled to bring an action for the wrongful death
of a decedent under Code Section 51-4-2 or 51-4-4, the administrator or
executor of the decedent may bring an action for and may recover and hold
the amount recovered for the benefit of the next of kin. In any such case the
amount of the recovery shall be the full value of the life of the decedent.

O.C.G.A. § 51-4-5(a). The district court stated that the existence of this section

bolstered its conclusion that Carringer did not have standing under O.C.G.A. § 19-

7-1 because O.C.G.A. § 51-4-5(a) allows the personal representative to recover,

but only “[w]hen there is no person entitled to bring an action for the wrongful

death of a decedent under Code Section 51-4-2- or 51-4-4.” As the district court

had concluded that Tessmer was “entitled” to bring the wrongful death action

under O.C.G.A. § 51-4-2, it decided that there was no need to look to either the

parent or the personal representative to bring the action.3

3
On appeal, the defendants argued only that Carringer does not have standing to bring a
wrongful death action, but never affirmatively that Tessmer has standing to bring the action.
Indeed, in the district court, Tessmer argued that only the personal representative was entitled to
bring the action.
The district court, however, based its conclusion in part on Tessmer being “entitled” to
bring the wrongful death action. It determined that Tessmer was entitled to bring the wrongful
death action because (1) it was not clear to the district court that Georgia law would foreclose
Tessmer’s right to bring the wrongful death action even though she had at least contributed to
her spouse’s death, and (2) Tessmer’s role in her spouse’s death had not been conclusively
determined because her conviction was not yet final.
In particular, the district court stated that “the fact that [Tessmer] contributed to
Newton’s wrongful death does not automatically foreclose on her right to bring a wrongful death
action,” citing Matthews v. Douberley, 428 S.E.2d 588 (Ga. App. 1993). In Matthews, a father’s

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 The district court also held that Carringer had no standing to bring a state-

law claim for funeral expenses.4 Carringer has only appealed the district court’s

dismissal of her state-law claim for wrongful death and her § 1983 claims. But

Carringer’s complaint seeks to recover damages for the “full value of Mr.

Newton’s life, including funeral expenses” as part of her damages. Thus, at issue

is also whether Carringer may recover funeral expenses as part of her damages

under state law.5

negligence contributed to a car accident in which the mother was killed, leaving a daughter. The
Georgia Court of Appeals affirmed a verdict based on a jury instruction that, if the jury found the
father’s negligence was equal to or greater than that of the defendant, he could not recover for
his own portion of the wrongful death claim, but that the father could recover on behalf of the
daughter regardless of the degree of the father’s fault. Id. at 589-90. This was so because the
daughter’s right to recover was not dependent on the father’s right. Id. at 590-91.
It is unclear, however, whether Matthews would be applied here by the Georgia courts
because (1) Tessmer would be recovering on her own behalf, and (2) the rule stated in Matthews
foreclosed the father’s recovery if he was at least equally as negligent as the defendant, and here,
Tessmer was not merely negligent, but committed an intentional (and criminal) tort.
The district court also stated, “Moreover, . . . Tessmer’s role in Newton’s death has not
been conclusively determined by the Georgia appellate courts. Had Tessmer’s conviction
become final before the statute of limitations expired, the Court may have determined that
Tessmer’s right to bring a claim was foreclosed.” Tessmer’s conviction has since been upheld
by the Georgia Supreme Court, and is therefore final for the purposes of this appeal.
4
Rather, the district court concluded that under Georgia law, only the personal
representative may bring the wrongful death claims for those debts. See O.C.G.A. § 51-4-5(b)
(allowing personal administrator to bring action for “funeral, medical, and other necessary
expenses resulting from the injury and death of the deceased person” in the event of death caused
by a crime or negligence); Walden v. John D. Archibold Mem. Hosp., Inc., 398 S.E.2d 271, 274
(Ga. App. 1990) (survival claims and causes of action under O.C.G.A. § 51-4-5(b) for medical
and funeral expenses vest in personal administrator, not in heirs and next of kin).
5
Compare Hosley v. Davidson, 439 S.E.2d 742, 745 (Ga. App. 1993) (stating that “the
funeral and burial expenses are debts of the estate[ ]”) with Gay v. Piggly Wiggly Southern, Inc.,
358 S.E.2d 468, 473 (Ga. App. 1987) (concluding that O.C.G.A. § 51-4-5(b) is really a survival

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 III. THE PARTIES’ ADDITIONAL CONTENTIONS

We now outline further arguments of the parties on appeal.

The defendants argue that O.C.G.A. § 19-7-1, by its express terms, does not

apply to give Carringer standing. The statute states that the parent may sue if the

deceased “does not leave a spouse or child.” O.C.G.A. § 19-7-1(c)(2). Here,

Newton did leave a spouse, Tessmer. Thus, the defendants argue that Carringer

has no cause of action. They also rely on Georgia caselaw stating that, because the

wrongful death statutes are in derogation of common law, they must be strictly

construed. See, e.g., Tolbert v. Maner, 518 S.E.2d 423 (Ga. 1999).

Carringer argues first that foreclosing her from standing under O.C.G.A.

§ 19-7-1 because Tessmer is a “surviving spouse” leads to absurd results.

Specifically, Carringer contends that the Georgia legislature could not have

intended that the killer be the only person who had a cause of action for wrongful

death.

Second, Carringer points to Georgia caselaw allowing children to sue under

O.C.G.A. § 54-1-2 when there is a surviving spouse but that spouse refuses or is

unavailable to sue. For instance, in Brown v. Liberty Oil & Refining Corp., 403

statute, not wrongful death statute, except as to the provision for funeral expenses, which is an
expense growing out of wrongful death).

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S.E.2d 806 (Ga. 1991), the mother of minor children had been killed and the

mother’s spouse, who had previously abandoned the children, would not sue. The

court held that the children could sue under O.C.G.A. § 51-4-2 in spite of the

spouse’s survival, stating, “the factual circumstances of this case demand the

exercise of [general equitable] powers to preserve the rights of the minor children.

The trial court should have allowed these minors, who have no remedy at law, to

maintain an action for the wrongful death of their mother.” Id. at 808. Carringer

contends that this and other cases demonstrate that Georgia courts will liberally

construe the wrongful death statutes under their equity powers to ensure that

someone has a remedy for the decedent’s wrongful death. Carringer also points to

Georgia’s “slayer statute,” O.C.G.A. § 53-1-5, as support for her position that

Tessmer should be treated as having predeceased Newton for the purposes of

O.C.G.A. § 19-7-1 so that Carringer would have standing to bring a wrongful death

action.

The defendants contend that the plain language of the statutes is not

ambiguous, nor does it create a conflict with legislative intent. According to the

defendants, O.C.G.A. § 19-7-1, the standing provision for parents, only applies if

the deceased “does not leave a spouse or child” because the wrongful death statutes

were intended primarily to provide for the spouse and children of a decedent.

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Also, if “there is no person entitled to bring the action” under either O.C.G.A.

§ 51-4-2 or O.C.G.A. § 19-7-1, one may look, the defendants argue, to the personal

representative to bring the action under O.C.G.A. § 51-4-5. Therefore, according

to the defendants, either Tessmer is entitled to bring the action or perhaps the

personal representative may bring the action — but in any event, Carringer is not

entitled to bring it.

The defendants further point out that, to the extent that the cases cited by

Carringer indicate that Georgia courts are willing to depart from the strict

construction rule of Tolbert, they are distinguishable from the present case. When

the spouse sues under O.C.G.A. § 54-1-2, the spouse sues also as a representative

of the children, with whom the spouse shares the award. Thus, the defendants

stress that allowing a court to exercise its equitable power on behalf of the

decedent’s children is consistent with the traditional purpose of wrongful death

statutes – to ensure that the dependents of a decedent were provided for in the case

of the decedent’s homicide. They assert that this policy concern is not necessarily

present in this case where a parent, rather than a surviving spouse or child, seeks

standing to bring a wrongful death suit. The defendants further note that, far from

supporting Carringer’s “liberal construction” argument, the fact that the Georgia

legislature provided a slayer provision with respect to inheritance shows that the

12
legislature could have created such a provision in the wrongful death statutes if it

had wanted to.

In sum, a strict reading of the Georgia wrongful death statutes would appear

to foreclose Carringer from having standing to bring a wrongful death claim. On

the other hand, there is some support in the Georgia caselaw for Carringer’s more

liberal reading of the statutes and some examples of the Georgia courts having

exercised equitable powers to effectuate the purpose of the wrongful death statutes.

The issues here have never been directly addressed by the Georgia appellate courts

and Georgia law provides no clear answers.

IV. CERTIFICATION

There is unsettled tension as to the application of the Georgia wrongful

death statutes that prevents us from being able to determine the proper application

of those statutes in this case. Because the Georgia Supreme Court is the most

appropriate tribunal to resolve this issue, we hereby CERTIFY the following

questions to the Georgia Supreme Court:

I. UNDER GEORGIA LAW, DOES THE PARENT OF A DECEDENT
CHILD WHO WAS MURDERED BY HIS SURVIVING SPOUSE HAVE
A WRONGFUL DEATH CAUSE OF ACTION AGAINST EITHER THE
SPOUSE-MURDERER AND/OR ANY OTHER PERSON OR ENTITY
WHO WAS THE PROXIMATE CAUSE OF THE DECEDENT’S DEATH?
IF SO, FOR WHAT DAMAGES? (I.E. FULL VALUE OF THE LIFE OF
THE DECEDENT? FUNERAL EXPENSES? ANY OTHER DAMAGES?)

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II. IF THE PARENT OF A DECEDENT CHILD DOES NOT HAVE A
WRONGFUL DEATH CAUSE OF ACTION UNDER THESE FACTS,
DOES THE PARENT HAVE STANDING TO BRING ANY OTHER
CAUSE OF ACTION UNDER STATE LAW FOR DAMAGES FOR THE
DEATH OF HER CHILD? IF SO, WHAT CAUSE OF ACTION,
AGAINST WHOM, AND FOR WHAT DAMAGES?

III. IF A PARENT OF A DECEDENT CHILD DOES NOT HAVE STANDING
TO BRING ANY CAUSE OF ACTION UNDER STATE LAW FOR
DAMAGES FOR THE MURDER OF HER CHILD BY HIS SURVIVING
SPOUSE, DOES ANY OTHER THIRD PARTY HAVE SUCH A
REMEDY? IF SO, WHAT CAUSE OF ACTION AND FOR WHAT
DAMAGES?

The phrasing used in these certified questions should not restrict the Georgia

Supreme Court's consideration of the questions posed by this case, nor its

restatement of the issues, or the manner in which its answers are given.

In order to assist the Georgia Supreme Court's consideration of the case, the

entire record, along with the briefs of the parties, shall be transmitted to the

Georgia Supreme Court.

QUESTIONS CERTIFIED.

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