Chapter 6.8 & 6.8.1 Summary of Cases Discussing Liability in the Context of Supervision

6.8.1    Cases Finding That Liability May Be Imposed

In the following cases, the courts found liability on the part of government officials supervising offenders or other persons:

• Semler v. Psychiatric Inst. of Wash., D.C., 538 F.2d 121 (4th Cir. 1976): Mother brought an action against psychiatric institute, a physician, and a probation officer, seeking recovery for the death of her daughter, who was killed by a probationer that had been a patient at the institute. Mother alleged that appellants were negligent in failing to retain custody over the patient until he was released from the institute by order of the court.  The court concluded that the state court's probation order imposed a duty on appellants to protect the public from the reasonably foreseeable risk of harm imposed by the patient.  The court held that the breach of the state court’s order by the defendants was the proximate cause of the daughter’s death.

• Division of Corr. v. Neakok, 721 P.2d 1121 (Alaska, 1986):  A newly released offender shot and killed his teenaged stepdaughter and her boyfriend, and raped, beat and strangled to death another woman.  Relatives of the murdered persons sued the state of Alaska, claiming the state was negligent in failing to impose special conditions of release, to supervise offender adequately on parole in allowing offender to return to a small, isolated community without police officers or alcohol counseling, and in failing to warn his victims of his dangerous propensities.  The Supreme Court affirmed in part and reversed in part, holding that offender’s victims and his actions were within the zone of foreseeable hazards of the state’s failure to use due care in supervising a parolee.  The state had a legal duty to supervise the offender and the authority to impose conditions on parole and to re-incarcerate the offender if these conditions were not met.  The state was obligated to use reasonable care to prevent the parolee from causing foreseeable injury to other people.  See also Bryson v. Banner Health Sys., 89 P.3d 800 (Alaska 2004) (Private treatment center liable for injuries caused by known rapist with extensive history of alcohol-related crimes who attacked other program participants.  As part of the treatment, the center encouraged all members of the group to contact and assist each other outside of the group setting.  The center knew that the rapist had an extensive criminal history of alcohol-related crimes of violence, including sexual assaults.  The rapist relapsed into drinking while being treated and attacked fellow patient.  The Court correctly held that the center owed the victim an actionable duty of due care to protect her from harm in the course of her treatment, including foreseeable harm by other patients.)

• Acevedo v Pima Cty. Adult Prob. Dept., 690 P.2d 38 (Ariz. 1984):  Action brought against county probation department and four officers for damages suffered as a result of the alleged negligent supervision of a probationer.  The court held that probation officers were not protected from liability by judicial immunity.  It was alleged that the children of the plaintiffs had been sexually molested by the probationer, who had a long history of sexual deviation, especially involving children.  Probation officers permitted the probationer to rent a room from one of the plaintiffs knowing there were five young children in the residence and despite the fact that as a special condition of probation the probationer was not to have any contact whatsoever with children under the age of 15.  The court noted that whether a particular officer was protected by judicial immunity depended upon the nature of the activities performed and the relationship of those activities to the judicial function.  A non-judicial officer was entitled to immunity only in those instances where he performed a function under a court directive and that was related to the judicial process.  Not all supervising activities of a probation officer are entitled to immunity because much of the work is administrative and supervisory, not judicial in function.  The court concluded that judicial immunity could not be invoked because the officers did not act under a court’s directive and, in fact, had ignored specific court orders.

• Johnson v. State, 447 P.2d 352 (Cal. 1968):  Action brought by foster parent against the state for damages for an assault on her by a youth placed in her home by the youth authority.  Plaintiff alleged that the parole officer placing the youth failed to warn her of the youth’s homicidal tendencies and violent behaviors.  Court held that placement of the youth and providing adequate warnings was a ministerial duty rather than a discretionary act.  Therefore, the state was not immune from liability.  The court determined that the release of a prisoner by the parole department would be a discretionary act, whereas the decision of where to place the probationer and what warnings to give constituted only a ministerial function for which liability could be attached.

• Sterling v. Bloom, 723 P.2d 755 (Idaho 1986):  A car operated by a probationer who was at the time under legal custody and control of the Idaho Board of Corrections,  whose blood alcohol was .23 percent by weight, struck a plaintiff's motorcycle.  A special condition of his probation was not to drive a motor vehicle except for employment purposes for the first year of probation.  The court held that under state law, every governmental entity was subject to liability for monetary damages whether arising out of a governmental or proprietary function, if a private person or entity would be liable for monetary damages under the laws of the state.  One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.  The key to this duty is not the supervising individual’s direct relationship with the endangered person or persons, but rather is the relationship to the supervised individual.  Where the duty is upon government officials, it is a duty more specific than one to the general public.

• Mianecki v. Second Judicial Dist. Court, 658 P.2d 422 (Nev. 1983), cert. dismissed 464 U.S. 806 (1983):  Convicted sex offender on probation for the sexual assault of a boy in Wisconsin relocated permanently to Nevada with approval.  Offender moved in with parents and a child, who were uninformed of the offender’s history.  The offender victimized the child.  Parents sued alleging that the Wisconsin and the employee, who approved the offender’s travel permit, violated the Interstate Compact for the Supervision of Parolees and Probationers.  The complaint also alleged negligence.  Nevada Supreme Court concluded that Wisconsin and the employee were not immune from suit in Nevada.  If the Nevada Department of Parole and Probation had committed the acts complained of, sovereign immunity would not have barred suit against the state.  Nevada as the forum state was not required to honor Wisconsin's claim of sovereign immunity.  In addition, the law of Wisconsin was not granted comity, as doing so would have been contrary to the policies of Nevada.

• Hansen v. Scott, 645 N.W.2d 223 (N.D. 2002) cert denied, 537 U.S. 1108 (2003): Daughters brought an action in connection with the murder of their parents by the parolee who had been transferred to North Dakota for parole supervision by Texas officials.  The daughters alleged that the employees of Texas failed to notify North Dakota officials about the inmate’s long criminal history and dangerous propensities.  Daughters sought to hold the employees liable on their wrongful death, survivorship, and 42 U.S.C.S. § 1983 claims.  The court held that the claims against the employees stated a prima facie tort under N.D. R. Civ. P. 4(b)(2)(C) and thus the exercise of personal jurisdiction over the employees was proper because the employees’ affirmative action of asking North Dakota to supervise their parolee constituted activity in which they purposefully availed themselves of the privilege of sending the parolee to North Dakota.  The employees could have reasonably anticipated being brought into court in North Dakota, and the exercise of personal jurisdiction over the employees comported with due process.

• Reynolds v. State Div. of Parole & Cmty. Servs., 471 N.E.2d 776 (Ohio 1984): The victim was assaulted and raped by the prisoner while the prisoner was serving a prison term for an involuntary manslaughter.  The prisoner had been granted a work release furlough.  Under Ohio Rev. Code Ann. § 2967.26(B), the prisoner was to have been confined for any periods of time that he was not actually working at his approved employment.  Victim contended that the state was liable for the injuries suffered because the state breached its duty to confine the prisoner during the non-working period when he raped the victim.  The court found that, although the victim was unable to maintain an action against the state for its decision to furlough the prisoner, the victim was able to maintain an action against the state for personal injuries proximately caused by the failure to confine the prisoner during non-working hours as required by law.  Such a failure to confine was negligence per se and was actionable.

• Jones-Clark v. Severe, 846 P.2d 1197 (Ore. Ct. App. 1993):  Probation department had a duty to control court probationers and to protect others from reasonably foreseeable harm. Even though officers could not act on their own to arrest a probationer or to revoke probation, they were in charge of monitoring probationers to ensure that conditions of probation were being followed, along with a duty to report violations to the court.

• Faile v. S.C. Dept. of Juvenile Justice, 566 S.E.2d 536 (S.C. 2002). Parents of nine-year-old child who was assaulted by a 12-year-old juvenile delinquent on probation brought negligence action against the Department of Juvenile Justice (DJJ). The South Carolina Supreme Court held that: (1) as a matter of first impression, juvenile probation counselor’s placement of a juvenile was an administrative, rather than a judicial or quasi-judicial function, and as such was not entitled to immunity; (2) probation officer was not acting as an agent and representative of family court, but was acting on behalf of DJJ and thus DJJ was the proper party; (3) probation officer’s decision to place a juvenile after he was expelled from the foster home was not a discretionary decision entitled to discretionary immunity; (4) genuine issue of material fact as to whether the officer’s placing of the juvenile was gross negligence precluded summary judgment; (5) immunity under juvenile release exception to the Tort Claims Act did not protect DJJ from liability; and (6) having assumed custody of a known dangerous individual, DJJ had an independent duty to control and supervise the juvenile. Just as police officers are not granted absolute immunity when they apply for arrest warrants, probation officers generally are not immune in performing their enforcement duties.

• Doe v. Arguelles, 716 P.2d 279 (Utah 1985):  Plaintiff sued the state and parole officer on behalf of 14-year-old ward who was raped, sodomized, and stabbed by juvenile offender while he was on placement in the community, but before he had been finally discharged from the Youth Detention Center (YDC).  State Supreme Court concluded that the state and officer could be held liable for injuries to the extent that the officer’s conduct involved the implementation of a plan of supervision, not policy decisions.  However, under state law, plaintiffs must show officer acted with gross negligence to establish personal liability. 

• Joyce v. Dept. of Corr., 119 P.3d 825 (Wash. 2005): The state corrections department was supervising an offender convicted of two felonies when the offender stole a car, ran a red light, and collided with a vehicle killing the occupant. At trial, the jury found that the state's negligence caused the death and awarded damages. On appeal, the court refused to limit the state's duty to supervise offenders, finding that once the state had taken charge of an offender, it had a duty to take reasonable precautions to protect against reasonably foreseeable dangers posed by the dangerous propensities of parolees. However, the court found errors at trial regarding jury instructions and remanded the case for a new trial on the issue of the state’s negligence.

• Hertog v. City of Seattle, 979 P.2d 400 (Wash. 1999): A young child was raped by a person on probation for a lewd conduct conviction in municipal court and on pretrial release awaiting trial in county court for a sexually motivated burglary. The plaintiff, the child’s guardian ad litem, sued the city and county claiming that the city probation counselor and the county pretrial release counselor negligently supervised the individual who committed the rape. Defendants’ summary judgment motion was denied and the denial was upheld by the appellate court. The court ruled that the defendants did have a duty to third persons, such as the rape victim, to control the conduct of probationers and pretrial releases to protect others from reasonably foreseeable harm. Whether the defendants violated their duty was subject to a factual dispute. In addition, because the probationer had signed a written release allowing mental health professionals to report to the city probation officer, he had no expectation of confidentiality as to his records as they were no longer subject to the psychologist-client privilege.

• Bishop v. Miche, 943 P.2d 706 (Wash. Ct .App. 1997):  Parents of a child killed in a car accident with a drunk driver sued the drunk driver for wrongful death and the county for negligent supervision by a probation officer.  Plaintiffs alleged that had the probation officer properly supervised the driver and reported his probation violations, the driver would have been jailed and their son would not have been killed.  The court held that although the county could not be held liable for the sentencing error, there were fact issues with respect to the plaintiffs’ negligent supervision claim.  The court stated that the probation officer had sufficient information about the driver to cause her to be concerned that he was violating his probation terms and that he might start drinking and driving again.