The Arkansas Supreme Court
recognizes that its political subdivisions, and other persons acting under color of law,
have a limited duty to protect one person from the injurious acts of another. See Shepherd
v. WashingtonCounty, 331 Ark. 480, 962 S.W.2d 779 (1998). There are only two reported
decisions in which the Court has discussed the parameters of this duty under the Arkansas
Civil Rights Act. Based on those two cases, it appears that Arkansas is essentially
tracking federal court decisions interpreting 42 U.S.C. §1983, with one significant
difference, the standard of care.
As with all torts, a plaintiff must first prove the
existence of a duty and breach of that duty. The constitutional duty to protect is limited
to two situations: (1) when there is a "custodial relationship" and (2) when
there is a special relationship created by the fact that a political subdivision or other
person acting under color of law affirmatively places an individual in a position of
danger the individual would not have otherwise faced. See Shepherd supra citing Wells
v. Walker, supra. There is no duty to protect members of the public at large. See Wells
v. Walker, 852 F.2d 368 (8th Cir.1988) cited by Shepherd supra, at 494.
To understand the duty to protect, it is important to understand
where it originates. The duty to protect originates in Section 12-123-105 of the Civil
Rights Act. That section provides a cause of action against any person, acting under color
of state law, who subjects or causes to be subjected another person to a deprivation of
rights secured by the Arkansas Constitution. The Act states that "[e]very person . .
. or any of its political subdivisions, who subjects or causes to be subjected, any person
. . . to the deprivation of rights, privileges, or immunities secured by the Arkansas
Constitution shall be liable to the party injured in an action at law . . ." Section
16-123-105. The Arkansas Constitution guarantees each of its citizens "certain
inalienable rights" amongst which are the right of "enjoying and defending
life." Article 2, §2. It also guarantees that no person shall be deprived of life,
liberty or property, without due process of law." Article 2,§8.
Shepherd is the first case interpreting the duty to
protect under theArkansas Civil Rights Act. Shepherd was decided on a motion to
dismiss for failure to state a cause of action. In Shepherd, it was alleged that
an inmate in a county jail, who demonstrated violent psychotic tendencies, was taken to a
private medical clinic for treatment. While at the clinic, the inmate disarmed the lone
deputy escorting him and killed him with his own pistol. The inmate then attempted to take
a patient, Mrs. Shepherd, hostage. Mrs.Shepherd's husband intervened and was also shot to
death by the inmate. The inmate fled the clinic and was confronted by officers responding
to 911 calls. The inmate turned the gun on himself and committed suicide.
Mrs. Shepherd brought suit against the County Sheriff for failing
to protect her under the Arkansas Civil Rights Act. She claimed that the Sheriff's actions
in transporting the inmate to the clinic and failing to adequately restrain him subjected
her, and her husband, to a deprivation of their right to life secured by the Arkansas
Civil Rights Act. The trial court dismissed the complaint for failing to state a cause of
action finding that the sheriff did not have a duty to protect Mrs. Shepherd from the
criminal acts of the inmate. The Supreme Court reversed and remanded finding that the
facts stated in the complaint were sufficient to support a cause of action for violation
of the Arkansas Civil Rights Act.
In interpreting the Act for the first time in Shepherd, the Court
looked to federal cases interpreting deprivations of life and liberty brought under42
U.S.C. §1983. The Court essentially adopted the federal rule that limits the duty to
protect to two situations: (1) where the state actor assumes a "special custodial or
other relationship" with respect to the individual (perpetrator), or (2) where the
state actor affirmatively places an individual (plaintiff) in a position of danger from
third parties that the individual would not have otherwise faced. Shepherd,
supra, at 498 (citations omitted).
The Court in Shepherd cited with approval the
interpretation of the duty to protect found in the Restatement of Torts (Second) §315,
which states:
There is no duty to control the conduct of a
third person as to prevent him from
causing physical harm to another unless: (a) a
special relationship exists between
the actor and the third person which imposes a
duty upon the actor to control the third
person's conduct, or (b) a special
relation exists between the actor and the other
which gives to the other a right to
protection.
The Court in Shepherd found the facts plead a duty based on a "special
relationship" and a "custodial environment." The "special
relationship" was created when the sheriff transported the dangerous inmate to the
same clinic as Mrs. Shepherd without taking necessary precautions to protect her. These
acts put Mrs. Shepherd in a position of danger. Shepherd at 500. The
"custodial environment" was created when the inmate was transported from the
jail to the clinic for treatment, effectively "transferring the custodial situation
from the jail to the clinic." Shepherd at 501.
Rudd is the only other Arkansas case interpreting the
duty to protect under the Arkansas Civil Rights Act. In Rudd, a high school
student shot another student to death on a school bus. There was evidence of confrontation
between the two boys. Further, there was evidence that the perpetrator had a history of
violence in junior high, but that the junior high records did not follow him to high
school. The family of the deceased brought suit against the school district under the
Arkansas Civil Rights Act, alleging the school district failed to protect their son while
he was in their custody. The trial court dismissed the suit on summary judgment. The
Arkansas Supreme Court up held the dismissal on appeal.
What is the difference between Shepherd and Rudd?
In Shepherd, theCourt found there was a duty to protect under either the
"custodial environment" analysis or "special relationship test." In Rudd,
the Court found neither. In Rudd, the Court distinguished Shepherd
finding that "the custodial relationship between the inmate and the State imposed a
duty upon the State to protect third persons from injury inflicted by the inmate who
escaped from custody. A prisoner is subject to restraints to protect the public, and the
failure to maintain such restraints may result in liability for injuries to third persons
under the Arkansas Civil Rights Act." Rudd at 799. The Court distinguished Rudd
finding that the relationship of a student to a school bus driver is not he same as that
of a prisoner and his warden . . .school officials should not be placed in a position
where enforcing physical restraints takes precedence over their primary purpose of
teaching . . . " Rudd at 799.
Rudd also held that there was no duty to protect under
the special relationship test. The Court found that there were no facts that the school
district had knowledge that the perpetrator had been violent in high school. The Court, in
citing Dorothy v. City of Little Rock School District, 794 F.Supp. 1405 (E.D.
Ark. 1992), implicitly rejected the view that compulsory school attendance created a
custodial environment for purposes of duty to protect liability, and that simply putting
two students together does not trigger liability under the special relationship test.
There are significant public policy reasons supporting the
conclusion in Rudd. Most of the policy reasons are stated in Dorothy
supra. The recognition that relationship between a warden and inmate is different fromthat
of a bus-driver and student, and the conclusion that inmates are restrained to protect the
public and students are not, are all supported by State statute. In Arkansas, sheriff's
have a statutory duty to prevent inmates from escaping from their custody. See Ark. Code
Ann. §14-14-1301(a)(5) and Ark. Code Ann. §5-54 114. Schools, obviously, do not have
such a duty and do not have a statutory duty to restrain students. As a comment, it will
be interesting to see if schools putting school safety officers, police officers, into
schools changes the custodial aspect of Rudd.
BREACH OF THE DUTY TO PROTECT
There is a difference in the standard of care for claims brought
under 42 U.S.C. §1983 and those under the Arkansas Civil Rights Act. To prove a breach of
the duty to protect under 42 U.S.C. §1983, the plaintiff must prove the defendants were
"deliberately indifferent." For claims under the Arkansas Civil Rights Act, the
plaintiff must prove "conscious indifference." Shepherd supra at 505.
In order to demonstrate that a defendant acted with
conscious indifference, a
plaintiff must show that the defendant knew or ought
to have known, in the light
of surrounding circumstances, that his conduct would
naturally or probably result
in injury and that he continued such conduct in the
reckless disregard of the
consequences from which malice can be inferred.
Shepherd at 505 citations omitted.
The significance of this difference remains to be
seen.
In sum, there are many facets of the duty to protect not
addressed in this article. I tried to give and hope that I have, at least, given a good
overview and starting point for the reader. There are many federal cases involving many
fact situations that our court has yet to address. Watching these cases develop will be an
interesting development of this aspect of the law. |
