Dr. Andrew Fulkerson Southeast Missouri State University Civil Law and Liability Chapter 3 Civil Liability Under State a

1. Dr. Andrew Fulkerson Southeast Missouri State University Civil Law and Liability Chapter 3 Civil Liability Under State and Federal Tort Law

2. Chapter 3 Civil Liability Under State and Federal Tort Law Goal: Provide students with an understanding of state tort liability actions. Objectives: Describe state tort negligence and its four components. Describe the legal concept of foreseeability. Describe common types of negligence in policing and corrections. Describe the Federal Tort Claims Act. Describe the various defenses to negligent tort actions. Describe the types of remedies awarded in tort actions. Describe pertinent cases in accordance with state tort law.

3. Negligent Tort Claims • Complaints of abuse of power and authority can be brought in state and federal courts • Negligence claims against criminal justice personnel are based on state tort law (even if filed in federal court-the substantive law of the state where the act took place controls) • Person’s right to sue a government entity is limited by doctrine of sovereign immunity

4. Negligent Tort Claims • Most states and the federal law have provisions for bringing tort claims against the state or federal government • Federal Tort Claims Act; Missouri Tort Claims Act • Claim heard by administrative board or commission • Applicable tort claims act will specify what types of claims may be brought and the types of damages which can be paid and whether immunity exists

5. Negligent Tort Claims • Applicable tort claims act will also state what standard of negligence must be proven. • Some states may allow recovery for simple negligence; others may require gross negligence

6. Negligent Tort Claims • Standard in negligent torts is whether the officer’s act or failure to act created an unreasonable risk of harm to another • Person does not intend to harm another, but fails to exercise due care to prevent the harm • Negligence is subjecting a person to an unreasonable risk of injury

7. Negligent Tort Claims • To prove a state tort negligence claim, four elements must be shown • Legal duty • Breach of that duty • Proximate causation • Actual injury

8. Negligent Tort Claims • Duty • Most cases hold that for negligence to occur, the defendant must have violated a duty owed to the injured person • Duty arises from laws, customs, judicial decisions, agency regulations

9. Negligent Tort Claims • Duty • Negligence based on two concepts • Existence of a duty, and • Fault, or the breach of that duty • Duty is a matter of law – determined by the court • Jury determines whether D is at fault using the “reasonable person” standard

10. Negligent Tort Claims • CJS Duties • Distinguish between authority to perform act from a legal duty • Authority to perform act does not always create a legal duty to perform the act with reasonable care • Some duties must be performed under the reasonable care standard

11. Negligent Tort Claims • CJS Duties • State v. Hughes (1989) police officers have duty to exercise reasonable care in their official dealings with persons who may be injured by their acts • Davis v. City of Detroit (1986) absence of a detox cell required by jail rule was a defective condition of the jail • Layton v. Quinn (1982) prior court order to correct deficiencies in the jail were relevant to whether the failure to comply contributed to the suicide of an inmate

12. Negligent Tort Claims • Duty • Existence of a legal duty is an essential element. No duty-no liability • Statute may create a duty

13. Failure to Perform Duty • If a duty is found to exist, • Did the person breach that duty?

14. Failure to Perform Duty • Harris v. District of Columbia, 932 F.2d 10 (D.C. Cir. 1991)

15. Failure to Perform Duty • Plaintiff must show some special knowledge or circumstances which create a special relationship.

16. Proximate Cause • Additional necessary element in tort claim is proximate cause • Plaintiff must prove that the breach of the duty was the proximate • cause of the injury • Traditional torts-require simple negligence: that the act caused the injury

17. Proximate Cause • In context of law enforcement and corrections-most courts require a higher standard: recklessness, wanton conduct, or gross negligence • Must be a direct link between the officer’s conduct and the injury • “But for” test • Was the officer acting recklessly?

18. Proximate Cause • Carlin v. Blanchard, 537 So.2d 303 (La. Dist. Ct. App. 1988)

19. Actual Injury • Plaintiff must also prove an actual injury • Type of injury • Physical injury • Pain and suffering • Emotional distress

20. Special Duty and Foreseeability • Police and correctional personnel owe a special duty when they have reason to believe that a prisoner presents a danger to himself. • Special duty exists when prisoner has diminished capacity to avoid self-injury. • Mentally disabled • Persons impaired by drugs or alcohol

21. Special Duty and Foreseeability • Police and correctional officers must take reasonable steps to ensure that prisoners who are intoxicated or mentally deficient are safely cared for.

22. Special Duty and Foreseeability • Factors related to special duty of care • Officer’s knowledge of the prisoner’s mental state • Extent to which the prisoners’ condition leaves them unable to exercise ordinary care

23. Special Duty and Foreseeability • If it is foreseeable that the prisoner’s condition creates a hazard, a duty of care exists on the part of the officer.

24. Special Duty and Foreseeability • Factors leading to foreseeability • Level of knowledge by officer of the prisoner’s condition • Condition and history of the prisoner • Known propensities of prisoner

25. Special Duty and Foreseeability • Examples of special duty of care • Officer is aware of prisoner’s mental condition and prisoner is helpless • Accident scene • Protection of witnesses and informants • Suicidal prisoners • Prisoner assaults

26. Common Types of Negligence • Operation of emergency vehicles • Much police work done on vehicular patrol • Statutes and regulations control use of police cruisers • Officers must follow traffic laws • Must operate vehicles in safe manner

27. Common Types of Negligence • Operation of emergency vehicles • Vehicle pursuits • Violation of regulations regarding pursuits does not always result in liability. • Plaintiff must still prove proximate causation.

28. Common Types of Negligence • Operation of emergency vehicles • Reenders v. City of Ontario, 1977 • Officer pursuit of intoxicated driver through red light. Officer was not found liable because no proof that the driver would not have run the red light anyway. Driver was intoxicated and was not aware that officer was pursuing him. • State v. McGeorge, 1996 • Court found that officer not negligent in engaging in high speed chase that resulted in pursued vehicle hitting another car. Court held reasonable persons could conclude that chase was reasonable.

29. Common Types of Negligence • Operation of emergency vehicles • Some courts require gross negligence in pursuit cases. • Boyer v. State, 1991 • Parish v. Hill, 1999 • Morris v. Leaf 1995

30. Common Types of Negligence • Operation of emergency vehicles • Other courts have defined “reckless disregard” as between ordinary and gross negligence. • City of San Antonio v. Schneider 1990

31. Common Types of Negligence • Operation of emergency vehicle • Liability for injuries to passengers in the fleeing vehicle • Robinson v. City of Detroit, 2000

32. Common Types of Negligence • Wrongful death actions • Wrongful death is a valid tort claim in all states • Wrongful death claim is likely anytime a death occurs during police action, including arrest, transport or custody • Wrongful death action against police officer or agency will be filed by estate of decedent, surviving family members or guardian.

33. Common Types of Negligence • Wrongful death actions • Liability based on claim that officer or agency was intentionally or grossly negligent as to needs of decedent • Proximate cause of death was officer negligence, or department policy

34. Common Types of Negligence • Wrongful death actions • Damages in wrongful death claim • Conscious pain and suffering • Loss of financial support of decedent • Loss of comfort, society and companionship • Medical expenses prior to death • Funeral expenses

35. Common Types of Negligence • Wrongful death actions • Claim may also include allegation that officer or agency conspired to cause death or cover up cause of death during investigation

36. Common Types of Negligence • Wrongful death action • Liability must be based on recognized tort theory • Lethal force • Custodial suicide • Death from restraint after a use-of-force incident • Fatal vehicular pursuit • Delay or denial of medical care

37. Wrongful Death • Fruge v. City of New Orleans, (1993)

38. Police Shootings • Police shootings are frequent subject matter for wrongful death claims • Mathiew v. Imperial Toy Corp., (1994) • Bodan v. DeMartin, (1994)

39. Suicides • Title v. Mahan, (1991) Two arrestees committed suicide in jail. Court held that jailors failed to adequately supervise the detainees and were liable for the suicides. • Moore v. City of Troy, (1992) Court held city not liable because they had reasonable procedures to protect against suicides and that city had complied with all of the practices regarding said policy. • De Sanchez v. Michigan Department of Mental Health, (1997) Government found liable for suicide of inmate because of defective design of public restroom of building

40. Failure to Protect • No general civil duty to prevent crime • Public duty doctrine • Police not liable for failure to protect person from crime

41. Failure to Protect • Public doctrine protects the discretionary decision making authority of police. • Police and correctional personnel have duty to protect persons in custody. “Special relationship doctrine.” • Police and corrections officers owe duty to persons in custody

42. Failure to Protect • Factors creating this special relationship • Actual knowledge of dangerous condition or situation • Statute, rule or policy that requires officers to perform act that is reasonably related to protection of members of society

43. Failure to Protect • Hamseed v. Brown, (1995) • Boyfriend escaped from officer attempting to make domestic violence arrest. Officer allowed man to go upstairs to get clothes and man escaped through window. Man later found girlfriend and stabbed her. The officer was found not liable because the man was not in his control.

44. Failure to Protect • State v. Powell, (1991) • Woman was subpoenaed to testify in court against her ex-husband in child abuse case. Man poured gasoline on her and set her on fire. She sued state for failure to protect her. Court held there was no special relationship and found for state.

45. Failure to Protect • Doe v. Calumet, 641 N.E.2d 498 (Ill. 1994)

46. Failure to Protect • Mills v. Overland Park, Kansas, (1992) • Officers had no duty to take into custody an intoxicated person without coat in winter. The man had contact with police after he was ejected from bar for causing disturbance. The walked away and was found frozen to death the next morning. A statute allowed, but did not require, emergency detention of intoxicated person. This statute held to not create liability.

47. Failure to Protect • Kerr v. Alaska, No. 3AN-93-06531 (Super. Ct. Alaska, 1996) • Informant helped convict two prisoners who planned and carried out (with help of others) a mail bombing of informant’s house. Court awarded $ 11.85 million to family of father who was killed and mother who was injured in blast.

48. False Arrest and False Imprisonment • False arrest is imposition of unlawful restrain on a person’s freedom of movement

49. False Arrest and False Imprisonment • False arrest elements • Detention of person • Detention is unlawful

50. False Arrest and False Imprisonment • Detention may be accomplished by: • Actual or apparent barriers • Physical force • Threat of physical force • Assertion of legal authority