Chapter 6.8.2 Cases Rejecting Liability

Cases Rejecting Liability

In the following cases, the courts refused to impose liability on government officials responsible for supervising offenders or other persons:

• Whitehall v. King County., 167 P.3d 1184 (Wash. Ct. App. 2007): Victim of illegal explosive set by probationer brought negligence action against a county, alleging that the county failed to control the probationer.  The court held that county's supervision of the probationer was not grossly negligent for failing to require probation officers to perform home visits or contact third parties to ensure the probationer was fulfilling the terms and conditions of probation. However, the court also noted that probation officers have a duty to protect third parties from reasonably foreseeable dangers that exist because of an offender's dangerous propensities; duty arises from the special relationship between the government and the offender.  The failure to adequately monitor and report violations by a probationer may result in liability if such failure amounts to gross negligence.

• Dept. of Corr. v. Cowles, 151 P.3d 353 (Alaska 2006): A parolee murdered his girlfriend and shot himself. One of the bodies fell on a child, leading to suffocation. The complaint alleged that the State committed negligence by failing to implement and enforce an appropriate parole plan, to require appropriate post-release therapy, to enforce parole violations, to properly supervise the parolee, and to revoke his parole. The Alaska Supreme Court held that the state’s duty of care in supervising its parolees should be narrowly construed. However, the selection of conditions of parole were operational activities not entitled to immunity but that at least some of the state's alleged acts of negligence were shielded by discretionary function immunity. The state could not be held liable for the parole officer's alleged negligence in failing to take affirmative action to discover parole violations absent notice.  Material issues of fact remained with respect to the issue of causation.

• Martinez v. California, 444 U.S. 277 (1980):  Parole officials released a known violent offender who subsequently killed the decedent.  The family sued the state alleging reckless, willful, wanton, and malicious negligence and deprivation of life without due process under 42 U.S.C.S. § 1983.  The Supreme Court held that the California statute granting immunity was not unconstitutional.  The Court further held that the U.S. Constitution only protects citizens from deprivation by the state of life without due process of law.  The decedent's killer was not an agent of the state and the parole board was not aware that decedent, as distinguished from the public at large, faced any special danger.  The Court did not resolve whether a parole officer could never be deemed to “deprive” someone of life by action taken in connection with the release of a prisoner on parole for purposes of 42 U.S.C.S. § 1983 liability.

• Weinberger v Wisconsin, 906 F. Supp. 485 (W.D. Wis. 1995):  Probation officers were not liable for injuries caused by drunken probationer collision with plaintiff’s car based on a failure to arrest probationer a night earlier when found driving under the influence (DUI).  It was decision of judge to allow probationer to remain out of custody pending the disposition of a petition that left the probationer able to drive and re-offend.  Failure of probation officers to arrest the probationer did not proximately cause injuries.

• Pate v. Alabama Bd. of Pardons & Paroles, 409 F. Supp. 478 (M.D. Ala. 1976), affirmed without opinion, 548 F.2d 354 (5th Cir. 1977):  Plaintiff sued state for damages when minor daughter was allegedly raped and killed by a parolee of the Alabama Board of Pardons and Paroles.  Plaintiff alleged that the granting of parole and subsequent supervision was either negligent or done in a willful and wanton manner.  Court held that the board of pardons and paroles was immune from suit by virtue of the Eleventh Amendment and the doctrine of official immunity.  Court held that individual parole officers should be granted same immunity accorded judges notwithstanding allegations of misfeasance, nonfeasance and malfeasance in the conduct of their supervision of parolee.

• McCleaf v. State, 945 P.2d 1298 (Ariz. Ct. 1997):  Probation officer did not act with “actual malice” in connection with allegedly negligent supervision of probationer.  Because manner of supervision was a discretionary act, officer was immune from liability for pedestrian struck and killed by probationer who was driving while intoxicated and without driver's license.  Probationer had told the officer that he was not using alcohol or drugs, and the officer saw no signs of such use.  Nothing in the record indicated that officer in any way encouraged or condoned probationer's drinking or drunken driving.

• Dep’t of Corr. v. Lamaine, 502 S.E.2d 766 (Ga. 1998):  Conduct of parole officer in supervising parolee, who was on conditional release after ten years in prison for aggravated rape and sodomy convictions, and while out raped and killed fellow restaurant employee, was not reckless.  There was no proof that the officer was aware of a risk so great that it was highly probable that the injuries would follow or that he acted with conscious disregard of a known danger.

• Anthony v. State, 374 N.W.2d 662 (Iowa 1985):  Plaintiffs filed action against the state for injuries caused by a sex offender whom the state released to work in the community without imposing any conditions on his release.  The court found that the state had breached no duty to plaintiffs because the decision to adopt a work release plan for a prisoner was a discretionary function.  State law barred negligence claims against the state for the failure to exercise or perform a discretionary function. Furthermore, the state had not breached a duty of care under a negligent supervision theory for the same reason.  Additionally, the evidence concerning implementation was not so strong as to compel a finding of negligence as a matter of law.  Finally, there was no duty to warn because there was no threat to an identifiable person.

• Schmidt v. HTG, Inc., 961 P.2d 677 (Kan. 1998), cert. denied, 525 U.S. 964 (U.S. 1998):  Probation officer’s failure to report violations by probationer who injured a child while driving under influence of alcohol was not liable for damages.  Officer did not take custody of probationer sufficiently to create a duty to protect the public.  Statutory duty to report probation violations was owed to court and not to general public.

• Lamb v. Hopkins, 492 A.2d 1297 (Md. 1985):  Probation officer who had probationer arrested on warrant for violating terms of probation did not have actual ability to control probationer by preventing his release which resulted in additional crimes. Even assuming that the officer had provided available information about other pending charges against the probationer to the court at revocation hearing, decision whether to revoke probation was within control of court, not probation officer.

• Johnson v. State, 553 N.W.2d 40 (Minn. 1996): The trustees of a victim, who was raped and murdered by a parolee who had failed to report to a halfway house, initiated a wrongful death action against the state and halfway house.  The court held that statutory immunity and official immunity barred the trustees’ claim because the decision to release the prisoner was a protected discretionary function.  The court further found that the immunities protected the state and county for the alleged failure of its agents to determine whether the parolee had arrived at the halfway house because imposing this liability would undermine public policy clearly manifested by the legislature to provide for the release of parolees into the community.  The court found that the halfway house was not negligent in that it had no legal duty to control the parolee; the halfway house did not have custody of the parolee nor had it entered into a special relationship with him due to his failure to arrive at the halfway house.

• Hurst v. State Dep’t of Rehabilitation & Corr., 650 N.E.2d 104 (Ohio 1995):  Parolee was declared absent without leave.  Pursuant to the policy of the Department of Rehabilitation and Correction, parole officer waited 30 days before drafting a parole violator-at-large (PVAL) report, which was never entered into the computer networks.  Parolee was arrested for his participation in the beating death of decedent. The executor of decedent’s estate brought an action against state alleging wrongful death, negligence, and negligence per se.  The court held that the only affirmative duty imposed upon state officials was to report the status of a PVAL and to enter this fact into the official minutes of the Adult Parole Authority.  There was no statute or rule that imposed a specific, affirmative duty to enter the offender’s name on any computer network.  Therefore, the plaintiffs failed to establish the existence of a special duty owed the decedent by the state. The public duty rule applied to bar liability on the part of the Adult Parole Authority.

• Kim v. Multnomah Cty., 909 P.2d 886 (Ore. 1996):  Action brought against a probation officer alleging gross negligent supervision with reckless disregard for safety of others.  Plaintiff alleged the officer was liable to due to the officer’s unreasonably heavy caseload, failure to make home visit, and failure to recognize mental condition of perpetrator was worsening.  Court held that probation officer did not create dangerous condition or cause death of son and that the officer was immune from liability for damages resulting from negligence or unintentional fault in performance of discretionary duties.

• Zavalas v. State, 809 P.2d 1329 (Ore. Ct. App. 1991):  Parole officer enjoyed judicial immunity in action by mother of eight-year-old child, despite allegations that the officer was negligent in failing to supervise a sex offender who was subject to a condition that he refrain from knowingly associating with victims or any other minor except with written permission of the court or officer.  Plaintiffs could not establish evidence that the officer knew the parolee was violating probation nor did terms of probation prohibit parolee from living next to families or children's playground. Officer was carrying out the court’s direction to supervise parolee and level of supervision exercised by him was within authority granted by court.