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December 3, 2001


The opinion of the court was delivered by: VICTOR Marrero, United States District Judge.



Plaintiff Maybell E. Banks (hereinafter "Ms. Banks") commenced this action alleging claims under § 1983 of the Civil Rights Act, 42 U.S.C. § 1983, and under state law, in her capacity as administratrix of the estate of her son, Kenneth Banks (hereinafter "Banks"), as well as on her own behalf.*fn1 She asserted several claims against the City of New York (hereinafter the "City"), nineteen named individuals and various unknown defendants, all of whom at the relevant times were employees of the New York City Police Department. The case stems from the alleged unlawful detention and use of excessive force by defendant police officer Craig Yokemick ("Yokemick") in connection with his arrest of Banks, who died from injuries he suffered during that incident.

The City, on behalf of all defendants except for Yokemick, reached a settlement for a total of $750,001 with Ms. Banks. All other defendants were released and the claims Ms. Banks had asserted against them, her own as well as those of Banks's estate, were then dismissed. The matter proceeded to trial as to Yokemick alone. The jury awarded Banks a total of $605,001 consisting of (1) $25,000 for Banks's conscious pain and suffering and $500,000 for his loss of life, both connected with the claim of use of excessive force; (2) $75,000 for Banks's pain and suffering associated with a state law claim for negligent delay in obtaining medical assistance; and (3) $5,000 on Banks's state law wrongful death cause of action, and (4) nominal damages of $1.00 on Banks's claim of unlawful arrest.

Now before the Court are Yokemick's post-trial motions for (1) judgment notwithstanding the verdict pursuant to Fed. R. Civ. P. 50(b); (2) a credit to set off, pursuant to New York General Obligations Law (hereinafter "G.O.L.") § 15-108 (McKinney's 2001), the full amount of the jury award against the recovery from Ms. Banks's settlement with the released defendants; and (3) indemnification pursuant to New York General Municipal Law ("G.M.L.") § 50-k (McKinney's 2001). For the reasons discussed below, Yokemick's motion for judgment as a matter of law is denied. His motion for approval of setoff is denied subject to further proceedings described below. Decision on his motion for indemnification is reserved pending the City's final determination, in the light of the judgment rendered herein, as to whether it will indemnify Yokemick for any portion of his liability.


The trial evidence established that Banks was riding a bicycle on 125th Street and Madison Avenue, Manhattan on October 29, 1998 when Yokemick, who was chasing Banks, threw his police radio at him, striking the side or rear of Banks's head with sufficient force to knock him off the bicycle and cause him to fall to the street. The jury also heard evidence indicating that Yokemick did not immediately disclose to other officers who arrived at the scene and drove Banks away to the police station, or to personnel at the precinct, or to ambulance attendants who later transported Banks to the hospital, that Banks had been struck on the head by Yokemick's radio. Banks's life could not be saved by the time he was finally taken to the hospital and properly diagnosed later that day as having suffered head injuries. Hours after his arrival at the hospital he went into a coma, was pronounced brain dead two days later on October 31, 1998 and was removed from life support on November 10, 1998. An autopsy by the Office of Chief Medical Examiner determined the cause of Banks's death as having resulted from a blunt impact to the head that fractured his skull and produced brain contusions.

Yokemick did not appear at the trial. Through cross-examination he endeavored to suggest a defense that he acted reasonably, in good faith and with justification in the proper and lawful exercise of his duties as a police officer and that Banks's injury could have been caused by his head striking the pavement during the course of Yokemick's making a lawful arrest.


A judgment as a matter of law pursuant to Rule 50 is appropriate where "there is no legally sufficient evidentiary basis for a reasonable jury to find for a party." Merrill Lynch Interfunding, Inc. v. Argenti, 155 F.3d 113, 120 (2d Cir. 1998). The court may not reach such a determination by evaluating the credibility of witnesses or the relative weight of evidence. Rather, in assessing a motion for judgment under Rule 50, the Court must view the evidence in the light most favorable to the non-movant. See Carulo v. John Crane, Inc., 226 F.3d 46, 51 (2d Cir. 2000); see also 9 James Wm. Moore, et al., Moore's Federal Practice ¶ 50.64[1] (3d ed. 2000). To grant a Rule 50 application, there must be "`such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of her surmise and conjecture, or . . . such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against [it].'" Concerned Area Residents for the Environment v. Southview Farm, 34 F.3d 114, 117 (2d Cir. 1994) (quoting Song v. Ives Laboratories, Inc., 957 F.2d 1041, 1046 (2d Cir. 1992) (citations omitted)).



Yokemick's motion for a Rule 50 judgment as a matter of law asserts (1) what appears to be a general challenge to the sufficiency of the evidence, as well as more specific objections contending that (2) the award of $500,000 for Banks's loss of enjoyment of life should be set aside because no basis for such a claim exists under New York law; (3) the recovery of $25,000 for Banks's conscious pain and suffering on the federal claim duplicates the $75,000 damages the jury awarded on the state cause of action that also claimed pain and suffering; (4) the pain and suffering award on the state law claim should be overturned because Banks failed to produce evidence that Yokemick owed Banks a duty to obtain adequate medical attention, and (5) Banks failed to introduce any evidence supporting the jury's award of $5,000 on the state law wrongful death action.


Uncontroverted evidence also established the following facts. Following his arrest, Banks was taken to the local precinct rather than to a nearby hospital. The officers who moved Banks were told, contrary to normal police practice, to bring him into the precinct through the back entrance and directly into a cell. Banks, having suffered what appeared to be an epileptic seizure soon after his arrival at the precinct, was later taken to the hospital. At no point were the officers who drove Banks to the precinct or to the hospital informed by Yokemick or anyone else that Banks had been struck on the head with a police radio, although Yokemick was present on both occasions when Banks was carried away. In fact, at the precinct Yokemick referred to Banks as a prisoner "claiming" injuries. Absent disclosure of the head blow, the condition that was reported to emergency medical attendants at the hospital as the reason for Banks's admission was the seizures he had suffered at the precinct and on the way to the hospital.

The lack of information about Banks's head injuries caused misdiagnosis of his condition and significant delay in his obtaining proper treatment for his real ailment. During this delay he suffered severe brain swelling and aggravating damage from which he never recovered. From the time Banks fell to the pavement up to the moment he went into a coma in the hospital several hours later he was semi-conscious and appeared to be suffering pain, but unable to communicate coherently. Banks' medical experts testified that had the hospital staff known about and properly treated Banks's head injuries immediately upon his admission, it might have been possible to relieve his condition and perhaps prevent his death.

Having invoked his privilege under the Fifth Amendment of the United States Constitution not to incriminate himself, Yokemick declined to be deposed in connection with this action, and was precluded by the Court from offering any defense relating to any matter as to which he had refused to provide discovery.*fn2 For the same reason, a number of the other police officers on the scene who witnessed or had some role in the events at issue in this case declined to testify.*fn3 Yokemick's defense in this case thus was limited to cross-examination of Banks's witnesses and experts. As an alternative explanation for Banks's head injuries, he endeavored to elicit evidence to support his theory that Banks's injuries might have been consistent with his head striking the pavement during his arrest.

As the Court views the record, the jury was presented sufficient undisputed evidence from which rational persons could have drawn the inferences and reached the conclusions reflected in a verdict against Yokemick. On this basis the Court cannot conclude either that there was such a complete lack of evidence supporting the jury's determination that it could only have been the product of sheer surmise or conjecture, or that there was such an overwhelming amount of evidence in Yokemick's favor that reasonable and fair-minded persons could not have reached a verdict against Yokemick. See Song, 957 F.2d at 1046. Accordingly, Yokemick's challenge to the sufficiency of the evidence is rejected and his motion for judgment as a matter of law on this ground is denied.


As a threshold matter, the Court must note the essential distinction between the rights and causes of action at issue. Banks's claim for loss of enjoyment of life as a component of recovery under his § 1983 excessive force case is pressed as an individual action filed on behalf of his estate. It is asserted to recover for personal injuries that Banks, while still living, experienced as a consequence of the deprivation of his federal civil rights. This theory of recovery differs fundamentally from a claim based on compensation for any economic losses cognizable under state law that Banks's estate could assert or that his statutory beneficiaries may have experienced and that accrued upon Banks's death.

Nonetheless, § 1983 itself contains no provision defining specific elements of recoverable damages. Resolution of the applicable rule of decision here thus requires consideration of 42 U.S.C. § 1988.*fn6 See Robertson v. Wegmann, 436 U.S. 584, 588 (1978) (instructing that if § 1983 does not clearly address or provide a solution for a particular issue, state law should supply the rule of decision insofar as consistent with federal law).

Application of § 1988 demands a three-part inquiry. See Burnett v. Grattan, 468 U.S. 42, 47-48 (1984). The Court must first determine whether "suitable" federal law exists. If so, § 1983 must be applied in conformity with such law. See id. Second, where such federal laws are not adapted to the object, or are otherwise deficient, the Court must inquire whether the laws of the relevant state provide a rule governing the particular issue. See id. If applicable state law exists, the Court must examine that solution to assess whether it is in some respect inconsistent with the federal Constitution and laws. See id.

In assessing claims of inconsistency, the pertinent inquiry is whether the particular state law is generally inhospitable to § 1983 claims. See Robertson, 436 U.S. at 590. In this connection, the Supreme Court has instructed that "[i]n resolving questions of inconsistency between state and federal law raised under § 1988, courts must look not only at particular federal statutes and constitutional provisions, but also at `the policies expressed in [them]'." Id. at 590 (quoting Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 240 (1969); see also Mason v. City of New York, 949 F. Supp. 1068, 1077 (S.D.N.Y. 1996) ("`If there is an inconsistency, the State law must be rejected, and this court must fashion an appropriate remedy to carry out the congressional purposes behind the civil rights legislation.'") (quoting Goad v. Macon County, Tennessee, 730 F. Supp. 1425, 1426 (M.D. Tenn. 1989)). An inconsistency between a state rule and the purposes of § 1983 may be found if the law "fails to take into account . . . policies that are analogous to the goals of the Civil Rights Act." Burnett, 468 U.S. at 48.

Finally, bearing contextually on the courts' § 1988 analysis is the guidance of Moor v. County of Alameda, 411 U.S. 693, 703-04 (1973). There, the Supreme Court offered two observations that serve to underscore the overarching federal purpose of the inquiry. First, the Court noted that whatever the source of law ultimately applied in a particular case, the rule of decision adopted under § 1988 "`is a federal rule responsive to the need whenever a federal right is impaired.'" Id. at 703 (quoting Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 240 (1969). The Court also declared that § 1988 was not intended "to authorize the wholesale importation into federal law of state causes of action . . . ." Id. Moreover, the Court instructed that when construing § 1988, "`both federal and state rules on damages may be utilized, whichever better serves the policies expressed in the federal statutes'.". Id. (quoting Sullivan, 396 U.S. at 240 (emphasis added)).

In the case at bar, as discussed above, the primary aim embodied in the state's survivorship statute is compensatory.*fn7 The law is designed to provide financial remedy to the decedent's estate and its beneficiaries, and, to the extent possible, to make them whole for the damages they may have suffered by reason of the decedent's death.

In contrast, in construing the basic purpose of the award of damages under § 1983, the Supreme Court has noted that it is "to protect persons from injuries to particular interests, and their contours are shaped by the interest they protect." Carey v. Piphus, 435 U.S. 247, 254 (1978) (emphasis added). As further elaborated, the statute's central aim may be viewed as a double-edged sword whose dual aspect is designed to protect and deter, to benefit the victim while penalizing the offender. See Monroe v. Pape, 365 U.S. 167, 184 (1961). On the one hand, the Civil Rights Act safeguards the rights of individuals wronged by the "`[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'"). Id. (quoting United States v. Classic, 313 U.S. 299 326 (1941) At the same time, the law enforces the Fourteenth Amendment against government officials "who carry the badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or abuse it." Id. at 172. Moreover, the Court instructed that: "The purpose of § 1983 would be defeated if injuries caused by the deprivation of constitutional rights went uncompensated simply because the common law does not recognize an analogous cause of action." Id. at 258.

Here, the particular interest asserted and the fundamental constitutional right sought to be vindicated is Banks's Fourth Amendment right not to be subjected to use of excessive force by police that caused his loss of life. The right to enjoyment of life without its unlawful curtailment has an intrinsic worth that necessarily exceeds the dollars-and-cents value of the decedent to his beneficiaries. For, implicit in the legislative history and philosophy of § 1983 is that the life interest the statute protects is not just the private economic interest of the injured person himself to enjoy his own life, but the much more fundamental public interest of the rest of society in that the life of any individual not be ended by the lawless conduct of state agents. To this extent, in a measure of damages under the federal statutory scheme, a state rule's quantification of the value of a particular person's life would be fundamentally flawed insofar as it counted alike whether the individual died of natural causes or was killed unlawfully by the state's own hand. The life wrongfully foreshortened is doubly shortchanged if that singular quantum of loss is discounted in the official reckoning of the persons's social worth.

On its face and as construed by New York courts, the state's survival claim law does not evince an objective to secure compensation designed to protect these broader non-economic interests that inure to the benefit of both the decedent and the larger community. See EPTL § 11-3.3; see also Sand, 656 N.Y.S.2d at 701; Kordonsky, 568 N.Y.S.2d at 119. In other words, the interests the state law seeks to promote are principally the financial needs the decedent's estate and its intended beneficiaries. These values do not encompass the whole expanse of intangible, more social and individual interests, such as enjoyment of life, that inherently derive from the person of the victim and that § 1983 protects from unlawful deprivation.

Consonant with this principle, the Supreme Court in Robertson found no inconsistency between Louisiana's survivorship law and § 1983 under circumstances where the injured party had died during the litigation of causes unrelated to the misconduct at issue in the case and the compensation involved would have benefitted primarily the executor of the decedent's estate, rather than interests more individually associated with the injured party. That under the state statute the underlying cause of action abated upon plaintiff's death, the Court noted, would not affect § 1983's purpose of preventing official misconduct on the facts presented, at least under circumstances in which the underlying claim did not entail misconduct that caused the plaintiff's death. See id. at 592, 594 ("We intimate no view . . . about whether abatement based on state law could be allowed in a situation in which deprivation of federal rights caused death.")

The question the Supreme Court left open in Robertson, and that is raised by the facts in the case at hand, has been answered in several cases in which the issue has arisen. Uniformly, the courts have ruled that when a violation of federal rights protected by § 1983 does cause the decedent's death, state laws that either extinguish the survival action or bar recovery for loss of life, effectively abate a § 1983 claim of deprivation of life, are inconsistent with § 1983, and warrant application of a federal rule of decision pursuant to § 1988. See Berry, 900 f.2d at 1501 ("We are satisfied that Congress intended significant recompense when a constitutional violation caused the death of a victim. The general legislative history of the 1871 act makes clear that death was among the civil rights violations that Congress intended to remedy."); Bass v. Wallenstein, 769 F.2d 1173, 1189-90 (7th Cir. 1985) (holding that where the constitutional violation has caused death, "state law that precludes recovery on behalf of the victim's estate for loss of life is inconsistent with the deterrent policy of section 1983.") (citing Bell v. City of Milwaukee, 746 F.2d 1205, 1234 (7th Cir. 1984)); Jaco v. Bloechle, 739 F.2d 239 (6th Cir. 1984); McFadden v. Sanchez, 710 F.2d 907, 911 (2d Cir. 1983).

In McFadden, for example, the Second Circuit held in an analogous situation that while under state law punitive damages are not recoverable by the designated beneficiaries in a wrongful death action, they may be awarded as a matter of federal law under § 1983. See McFadden, 710 F.2d at 911. In so ruling the Circuit Court stated: "To whatever extent section 1988 makes state law applicable to section 1983 actions, it does not require deference to a survival statute that would bar or limit the remedies available under section 1983 for unconstitutional conduct that causes death." Id.; see also Section 1983 Litigation § 13.2, at 78 ("The dominant theme of these decisions is that a federal rule of survivorship is necessary to carry out the policy of deterring constitutional violations by state and local officials that result in death.").

These cases also confirm a reading of § 1983 that the statute is founded on principles fostering policy ends and protecting interests broader than merely making the decedent's estate economically whole. Manifest in the courts' consideration of the issues is that life is perhaps the most profoundly personal and vital of civil rights. Its unlawful deprivation by public officials, or under the color law, goes to the very core of the rule of law. See e.g., Graham v. Sauk Prairie Police Comm'n, 915 F.2d 1085, 1105 (7th Cir. 1990) (noting that the legislative history underlying § 1983 "expresses an unequivocal concern for protecting life") (emphasis in original); see also Berry, 900 F.2d at 1506-07; Jaco, 739 F.2d at 244.

To these ends, § 1983 effectuates a remedy that permits the assertion and vindication of the injured person's federal civil rights, thereby achieving a dual purpose of not only compensating victims for suffered wrongs, but also deterring future deprivations of constitutional rights through compensatory and, where appropriate, punitive damages. See Robertson, 436 U.S. at 590-91; Carey, 435 U.S. at 254-57.

The case law affirms the obvious. A result that would recognize damages for infliction of severe pain and suffering short of death but extinguish the cause of action at the moment the victim expires is inherently illogical and incompatible with the deterrent purposes of § 1983. In essence, it would import into § 1983 a peculiar form of economics with a uniquely macabre cost-benefit analysis. In an odd way, this calculus would discourage half-measures, enabling violators of life to draw a bounty from the saving grace of death. A defendant would be rendered liable to the injured person who suffers a punch or a slap, but not for the victim's instant death; a mere maming would be fully recompensed, but not a slaying. Thus, the rule would tell offenders that, having already dealt grievous blows, it pays to dispatch the victim with a self-serving act of homicide in order to realize economies on their potential civil liability.

Such a consequence is especially pernicious in the context of law enforcement agents. In appropriate circumstances these public officers are licensed to kill and are equipped with the means to do so. Moreover, in the course of performing their public duties, they frequently encounter situations that require the use of force and demand considered judgment calls, ordinarily to be made on-the-spot, of how much force the circumstances warrant. Consequently, whether to kill or not to kill is a question police officers must routinely confront, not only as official function or moral or existential quandary, but also as naked opportunity vested with the color of law. And when they do take life illegally in the name of the state, the offense does more than extinguish a soul and deprive one person of civil rights; it assaults and corrupts the foundation of the rule of law. By training, law enforcement agents also know the bounds of permissible official conduct and have familiarity with the scope and nuances of liability for departures from established rules. In the federal scheme codified by § 1983, the civil rights laws' response to these realities demands application of a rule of decision more finely calibrated than a compensatory purpose that, without distinction as to grades of offenses or types of offenders, confines its recognition of remediable interests predominantly to the economic losses of the victim's estate.

These incongruities have been noted by other courts, prompting them to hold that application of a state law that would achieve such anomalous outcomes in a context of § 1983 claims would conflict with the policy ends of the federal statute. See Bass, 769 F.2d at 1190 (sustaining a claim for damages arising from loss of life, the court declared that "state law that precludes recovery on behalf of the victim's estate for the loss of life is inconsistent with the deterrent policy of Section 1983"); Bell, 746 F.2d at 1239 ("[I]f Section 1983 did not allow recovery for loss of life notwithstanding inhospitable state law, deterrence would be further subverted since it would be more advantageous to the unlawful actor to kill rather than to injure."); Jaco, 739 F.2d at 244 ("to suggest that Congress had intended a civil rights infringement be cognizable only when the victim encounters pain and suffering before his demise, is absurd."); Roman v. City of Richmond, 570 F. Supp. 1554, 1556-57 (N.D. Cal. 1983) ("where a defendant is required to bear a greater economic loss where he injures a person by use of excessive ...

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