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Dr. Andrew Fulkerson Southeast Missouri State University Civil Law and Liability Chapter 3 Civil Liability Under State and Federal Tort Law. Chapter 3 Civil Liability Under State and Federal Tort Law Goal: Provide students with an understanding of state tort liability actions.

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Dr. Andrew Fulkerson

Southeast Missouri State University

Civil Law and Liability

Chapter 3

Civil Liability Under State and Federal Tort Law


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.

negligent tort claims
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
negligent tort claims4
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
negligent tort claims5
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
negligent tort claims6
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
negligent tort claims7
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
negligent tort claims8
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
negligent tort claims9
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
negligent tort claims10
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
negligent tort claims11
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
negligent tort claims12
Negligent Tort Claims
  • Duty
  • Existence of a legal duty is an essential element. No duty-no liability
  • Statute may create a duty
failure to perform duty
Failure to Perform Duty
  • If a duty is found to exist,
  • Did the person breach that duty?
failure to perform duty14
Failure to Perform Duty
  • Harris v. District of Columbia, 932 F.2d 10 (D.C. Cir. 1991)
failure to perform duty15
Failure to Perform Duty
  • Plaintiff must show some special knowledge or circumstances which create a special relationship.
proximate cause
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
proximate cause17
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?
proximate cause18
Proximate Cause
  • Carlin v. Blanchard, 537 So.2d 303 (La. Dist. Ct. App. 1988)
actual injury
Actual Injury
  • Plaintiff must also prove an actual injury
  • Type of injury
    • Physical injury
    • Pain and suffering
    • Emotional distress
special duty and foreseeability
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
special duty and foreseeability21
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.
special duty and foreseeability22
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
special duty and foreseeability23
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.
special duty and foreseeability24
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
special duty and foreseeability25
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
common types of negligence
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
common types of negligence27
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.
common types of negligence28
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.
common types of negligence29
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
common types of negligence30
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
common types of negligence31
Common Types of Negligence
  • Operation of emergency vehicle
    • Liability for injuries to passengers in the fleeing vehicle
    • Robinson v. City of Detroit, 2000
common types of negligence32
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.
common types of negligence33
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
common types of negligence34
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
common types of negligence35
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
common types of negligence36
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
wrongful death
Wrongful Death
  • Fruge v. City of New Orleans, (1993)
police shootings
Police Shootings
  • Police shootings are frequent subject matter for wrongful death claims
    • Mathiew v. Imperial Toy Corp., (1994)
    • Bodan v. DeMartin, (1994)
  • 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

failure to protect
Failure to Protect
  • No general civil duty to prevent crime
  • Public duty doctrine
    • Police not liable for failure to protect person from crime
failure to protect41
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
failure to protect42
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
failure to protect43
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.
failure to protect44
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.
failure to protect45
Failure to Protect
  • Doe v. Calumet, 641 N.E.2d 498 (Ill. 1994)
failure to protect46
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.
failure to protect47
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.
false arrest and false imprisonment
False Arrest and False Imprisonment
  • False arrest is imposition of unlawful restrain on a person’s freedom of movement
false arrest and false imprisonment49
False Arrest and False Imprisonment
  • False arrest elements
    • Detention of person
    • Detention is unlawful
false arrest and false imprisonment50
False Arrest and False Imprisonment
  • Detention may be accomplished by:
    • Actual or apparent barriers
    • Physical force
    • Threat of physical force
    • Assertion of legal authority
false arrest and false imprisonment51
False Arrest and False Imprisonment
  • Brown v. Bryan County, Oklahoma, (1995)
    • Plaintiff prevailed showing an intent to confine, confinement and knowledge of harm to plaintiff.
  • Byrd v. New York Transit Authority, (1991)
    • Byrd was awarded $250,000 compensatory damages and $125,000 punitie damages. Officers assaulted P during the false arrest causing serious injuries to P.
false arrest and false imprisonment52
False Arrest and False Imprisonment
  • Marshall v. District Court, (1992)

Officers assisted medical personnel in restraining Marshall while mental health evaluation was performed. Officers told her she would be detained by force if she did not cooperate. Court found the officers had qualified immunity because they responded to a call pursuant to law and believed that she was mentally ill and needed confinement.

false arrest and false imprisonment53
False Arrest and False Imprisonment
  • Diogaurdi v. City of New Orleans, (1992)

Officers found not to be liable for false arrest of husband because wife had an order of protection against the man and she had told police that he was harassing her.

malicious prosecution
Malicious Prosecution
  • Person is illegally prosecuted in criminal or civil case for improper purpose and without probable cause.
malicious prosecution elements
Malicious Prosecution-Elements
  • Institution or continuation of judicial proceedings (civil or criminal)
  • By or at request of defendant
  • Termination of proceedings in favor of plaintiff
  • Suffering of injury or damage as result of the proceedings
  • Damage was proximate result of the proceedings
  • The proceedings were commenced by defendant with malice, and without probable cause.
malicious prosecution56
Malicious Prosecution
  • Malice is a key element of malicious prosecution case
  • Involves intentional wrongful act without justification
  • Malice may be shown by improper motive for bringing the action
  • Does not require hatred or ill will by defendant to plaintiff
malicious prosecution57
Malicious Prosecution
  • Stitle v. City of New York, (1991)

Malicious prosecution claim regarding criminal case requires more than arrest. Cause of action arose only after indictment, arraignment, or some other evaluation of case by some neutral body and a finding that the charges were warranted.

malicious prosecution58
Malicious Prosecution
  • Carver v. Hartville Police Department, (1992)

Officers arrested a woman for aiding and abetting her son in drug distribution. Police made observations and controlled buys. No evidence of malice and there was probable cause for the arrest. Court held that there was no liability for malicious prosecution.

malicious prosecution59
Malicious Prosecution
  • Strong v. Nicholson, (1991)

Defendants in malicious prosecution case had caused criminal charges to be filed against plaintiffs in malicious prosecution case. Defendants had been advised by counsel that the case was civil and not criminal. Court found that the criminal charge was brought with reckless disregard and to obtain property which was in dispute.

malicious prosecution60
Malicious Prosecution
  • Qualified immunity is not a defense to malicious prosecution
    • Bad faith is an element of malicious prosecution
    • False representations are frequently involved
assault and battery
Assault and Battery
  • Force is a frequent event in criminal justice (police and corrections)
  • Results in many assault and battery claims
  • Arrest (many arrests require force)
  • Corrections (force often needed to move or search prisoners and to prevent fights between prisoners)
  • Intentional attempt to cause physical injury to another
  • Together with the ability to carry out this attempt
  • Requires intent to cause physical harm or fear thereof
  • Reckless behavior not enough
  • Words alone not usually enough
  • Voluntary act that results in harmful or offensive contact
  • Not required that contact cause actual harm
  • Offensive contact is enough
  • Every arrest using force has potential for claim of assault or battery
assault and battery distinguished
Assault and Battery Distinguished
  • Assault: victim fears an imminent battery
  • Battery: unlawful, unwarranted offensive touching (may be slight)
assault and battery65
Assault and Battery
  • Jackson v. North Carolina Department of Crime Control, (1991)

Officer used blackjack on intoxicated, handcuffed arrestee. The person was restrained and cooperative. Court held this use of force was not reasonable and found to be negligent. Officer was liable for damages.

assault and battery66
Assault and Battery
  • Moody v. Ferguson, (1989)

Trooper stopped plaintiff for traffic violation. Plaintiff tried to drive away. Trooper pulled out his pistol and ran after plaintiff. Plaintiff moved car toward trooper. Trooper fired at plaintiff and hit his vehicle on tire rim. Court found that trooper acted negligently and unreasonably and that trooper was liable for assault.

assault and battery67
Assault and Battery
  • Baker v. Chaplin, (1994)

Officer hit a political demonstrator with an impact weapon who was complying with officer instructions. The weapon was thrust into chest of demonstrator. Court found this was deadly force and was unreasonable, excessive and violated state law and § 1983.

federal tort claims act
Federal Tort Claims Act
  • Allows claim for damages for torts to be brought against federal government
  • Includes a partial waiver of sovereign immunity of government
sovereign immunity
Sovereign Immunity
  • Private citizen may not sue a government agency without its consent
  • Common law maxim “The king can do no wrong.”
  • Public funds should not be spent to pay for private injuries
  • Government officials would not do job properly if they made decisions based upon threat of litigation.
  • Many state have abolished or modified doctrine of sovereign immunity
sovereign immunity70
Sovereign Immunity
  • Suits against individual government officers
    • If acting in unconstitutional manner, not protected by sovereign immunity because they were acting beyond scope of their authority.
    • Federal employees are given immunity from suit even if they act maliciously. They must act outside the scope of their employment
    • Some states allow employees to be sued for intentional torts
    • Some states allow suits for negligence of state employees
federal tort claims act71
Federal Tort Claims Act
  • Suits filed under FTCA must be based on tort claims, not constitutional claims
federal tort claims act72
Federal Tort Claims Act
  • Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971)
contributory negligence
Contributory Negligence
  • Conduct of plaintiff contributed to the injury of plaintiff
  • Plaintiff at least partially at fault
  • May be complete or partial defense
  • If plaintiff contributed in any part to his damages then no recovery for plaintiff
contributory negligence74
Contributory Negligence
  • Burden of proof: defendant must prove, by a preponderance of the evidence, that plaintiffs own actions contributed to his own injuries
contributory negligence75
Contributory Negligence
  • Fruge v. City of New Orleans, (1993)
contributory negligence76
Contributory Negligence
  • Contributory negligence has not generally been applied to inmate suicide cases.
  • Duty of providing care outweighs the contributory negligence of prisoner
contributory negligence77
Contributory Negligence
  • Miga v. City of Steuben, (1998)

Police department knew decedent from previous DWI stops. Officers considered placing her in protective custody. Department had policy against placing unconscious arrestees in jail. But officers failed to do any background check which would have alerted them to her history of DWIs. The officers made no attempt to do this check or contact a detox center. Officers found negligent and liable.

contributory negligence78
Contributory Negligence
  • Unforeseeable suicides are an exception
  • Murdock v. City of Keene, (1993)
      • Officers not liable unless they had actual knowledge of facts that would indicate risk of suicidal tendency of inmate. This lack of knowledge and the prisoner’s intentional act preclude liability of officers.
comparative negligence
Comparative Negligence
  • Acknowledges that both parties may contribute to the injury
  • Compares the degree of fault of plaintiff with fault of defendant
  • Does not eliminate D’s responsibility just because P is partially at fault
  • Reduces P’s award by the degree of P’s fault
comparative negligence80
Comparative Negligence
  • Many states provide that if fault is 50-50, then no recovery
  • “Pure comparative fault” statutes allow recovery even if P fault is greater than D’s fault.
comparative negligence81
Comparative Negligence
  • Del Tufo v. Township of Old Bridge (1996)
    • Person died of cocaine overdose while in police custody.
    • Decedent had not told police he had taken cocaine prior to arrest.
    • Medical care not provided until he showed signs of seizures.
    • Died soon after admission to hospital.
    • Court held that comparative negligence applied and that decedent was negligent in not telling police of his drug use.
comparative negligence82
Comparative Negligence
  • McRoy v. New Orleans Police Department (1990)
      • Police officer used excessive force in handcuffing person and broke his wrist.
      • Court held that person was partially at fault because he resisted arrest and reduced judgment by 50% for his share of the fault.
assumption of the risk
Assumption of the Risk
  • Defense to liability in some jurisdictions
  • When plaintiff knew or should have known of risk
assumption of the risk elements
Assumption of the Risk-Elements
  • P knew or should have known of risk
  • P had ability to recognize risk associated with the activity
  • P had opportunity to avoid or cease harmful activity and failed
  • P knowingly placed himself in danger and should be responsible for his own actions
remedies in tort actions
Remedies in Tort Actions
  • Compensatory damages
      • Long-standing principle of Anglo-American law that a person, who has been harmed as result of the breach of a duty by another, may be compensated.
      • Plaintiff is compensated by monetary judgment
remedies in tort actions86
Remedies in Tort Actions
  • Compensatory damages include:
    • Medical expense
    • Financial loss (loss of income)
    • Pain, suffering, disfigurement
remedies in tort actions87
Remedies in Tort Actions
      • Catalano v. Bujak (1994)
  • Pennsylvania Supreme Court upheld damage award of $1.5 million for Catalano who was victim of excessive force by Bujak.
  • Officer stopped Catalano for speeding; arrested him for disorderly conduct;
  • Broke Catalano’s wrists;
  • Catalano had to undergo surgery for broken wrists;
  • Unable to perform his job as grocery store manager; reduced future income;
  • Pain and suffering and humiliation.
  • Jury found that officer engaged in willful misconduct.
remedies in tort actions88
Remedies in Tort Actions
  • Punitive damages
    • Assessed as punishment to defendant.
    • Intent is to deter future actions of D and others – symbolic-
    • Normally only applied to intentional or reckless misconduct
    • Should be proportionate to wrong
    • Government will not usually pay punitive damages assessed against officer.
    • Private insurance often excludes punitive damages from coverage
punitive damages
Punitive Damages
  • Smith v. Wade, (1983)
  • Prison classification officer recklessly assigned P to housing unit where the officer knew that P would probably be assaulted by other inmates.
  • Days later P was sexually assaulted by inmates.
  • Supreme Court upheld the $ 5,000 punitive damage award against officer.
punitive damages90
Punitive Damages
  • Moore v. City of Philadelphia, (1990)
  • Officers beat a robbery suspect;
  • racially insulted suspect;
  • made him remove shirt and put him in a cold room attempting to get confession.
  • Court found officers liable and awarded $581,977 compensatory damages and $100,000 punitive damages.
nominal damages
Nominal Damages
  • Court or jury may find that D is liable, but that P suffered no actual damages
  • Nominal damages are symbolic in nature (usually $1)
  • However, the award of nominal damages may allow award of punitive damages if action was intentional or reckless;
  • Will allow award of attorney fees.