Shepherd v. Washington County
Annotate this Case
Peggy Sue SHEPHERD, Personally and as
Administratrix of the Estate of George
Shepherd, Deceased, v. WASHINGTON COUNTY,
Arkansas, Sheriff Kenneth McKee, Personally
and in His Official Capacity, and Deputy John
Doe, Personally and in His Official Capacity,
97-530 ___ S.W.2d ___
Supreme Court of Arkansas
Opinion delivered February 19, 1998
1. Civil procedure -- Rule 12(b)(6) -- review of denial of
dismissal. -- In reviewing the denial of a dismissal granted
pursuant to Ark. R. Civ. P. 12(b)(6), the facts alleged in the
complaint are treated as true and viewed in the light most
favorable to the party who filed the complaint; when the trial
court decides Rule 12(b)(6) motions, it must look only to the
complaint.
2. Civil procedure -- fact pleading -- requirements of. --
Arkansas Rule of Civil Procedure 8(a)(1) requires that a
pleading which sets forth a claim for relief must contain a
statement in ordinary and concise language of facts showing
that the pleader is entitled to relief; Rule 12(b)(6) provides
for the dismissal of a complaint for "failure to state facts
upon which relief can be granted"; these two rules must be
read together in testing the sufficiency of the complaint;
facts, not mere conclusions, must be alleged; in testing the
sufficiency of the complaint on a motion to dismiss, all
reasonable inferences must be resolved in favor of the
complaint, and pleadings are to be liberally construed.
3. Constitutional law -- requirements for claim under Federal
Civil Rights Act -- Martinez v. California discussed. -- In
Martinez v. California, 444 U.S. 277 (1980), the Supreme Court
established that in order to sustain a claim under section
1983 of the Federal Civil Rights Act of 1871, a plaintiff must
satisfy the following requirements: (1) the conduct at issue
was performed under color of state law; (2) the conduct caused
a deprivation of constitutional rights; and (3) the
deprivation occurred without due process of law; the Court's
decision established that any claim pursuant to section 1983
must state facts demonstrating that the conduct of a state
actor deprived a particular individual of his or her
constitutional rights without due process of law; in
determining whether it was state action that resulted in the
deprivation of constitutional rights, the Court considered the
fact that the injury to the individual was remote in time from
the state action.
4. Constitutional law -- state puts individual in danger from
acts of third party -- state may be liable under section 1983
of Federal Civil Rights Act. -- In Bowers v. DeVito, 686 F.2d 616 (7th Cir. 1982) the court cautioned that even though the
state action was not the direct cause of the deprivation of
the individual's rights, where the state puts an individual in
a position of danger from the acts of a third party, the state
may be liable under section 1983.
5. Constitutional law -- liability of state for deprivation of
individual's civil rights by third party -- when liability
occurs. -- In Estate of Gilmore v. Buckley, 787 F.2d 714 (1st
Cir. 1986), the court recognized two situations in which the
state could be held liable under section 1983 for the
deprivation of an individual's civil rights by a third party:
(1) where the state has assumed a "special custodial or other
relationship" with respect to the individual, or (2) where the
state has affirmatively placed an individual in a position of
danger from third parties.
6. Constitutional law -- state liability under section 1983 --
when liability may result. -- In Nishiyama v. Dickson County,
Tenn., 814 F.2d 277 (6th Cir. 1987), the court held that where
the state actors had, by established practice, facilitated the
deprivation of the individual's constitutional rights by
providing the third party with the specific means and
opportunity to commit the crime against the individual,
liability would result under section 1983; the court also
recognized that although an individual may not be personally
known to the state actors, the fact that he or she is part of
an identifiable group of potential victims satisfies the
requirement under the due process clause that there be a
deprivation of a particular individual's rights; the court
considered important the fact that the harmful action was
committed by an inmate who was at all relevant times in the
custody and control of the state defendants.
7. Constitutional law -- civil rights -- state protection of
individuals from harm by third parties -- when liability
attaches. -- In Wells v. Walker, 852 F.2d 368 (8th Cir. 1988)
it was stated that, as a general rule, members of the public
at large have no constitutional right to be protected by the
state from harm inflicted by third parties; however, where the
state actors used an individual's place of business for the
purpose of releasing paroled prisoners, liability attached
under section 1983, as the state actors were said to have
affirmatively placed the individual in a unique
confrontational encounter with potentially dangerous persons.
8. Constitutional law -- deprivation by third party of private
citizen's due process rights -- state actors may be held
liable -- special-relationship test discussed. -- In Cornelius
v. Town of Highland Lake, Alabama, 880 F.2d 348 (11th Cir.
1989), the court held that state actors may be held liable for
the deprivation by a third party of a private citizen's due
process rights when a special relationship is found to exist
between the victim and the third party or between the victim
and the government officials; when the duty which arises by
virtue of the special relationship is coupled with some degree
of culpable conduct on the defendant's part, 1983 liability
attaches; a "special relationship" exists where the dangerous
environment is created by an established practice of the state
actors, thereby increasing the individual's vulnerability to
harm by others, and where the state actors exercised a
significant degree of control over the individual victim, such
that the victim may be required to expose herself to the
dangerous situation in order to keep her job.
9. Torts -- liability for acts of another -- when duty exists to
control third person's conduct. -- Ordinarily one is not
liable for the acts of another party unless a special
relationship exists between the tortfeasor and the victim;
there is no duty so to control the conduct of a third person
as to prevent him from causing physical harm to another unless
(a) a special relation 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.
10. Constitutional law -- appellees had duty to protect innocent
third parties -- facts of appellant's complaint sufficient to
form basis of civil-rights claim. -- Appellant pled facts
sufficient to support a determination that appellees had a
duty to protect her and her husband from the violence that
befell them as the result of the inmate's actions; the facts
showed that the inmate was at all relevant times in the
custody and control of appellees; when appellees undertook to
transport the inmate from the secured confines of the jail to
an unsecured environment, they in effect relocated the
custodial environment to the private clinic; these actions
supported a finding of a special custodial relationship
between appellees and the victims, such that appellees had a
duty to protect them from the violent actions committed by the
inmate; even though the victims were not personally known by
appellees to be patients at the clinic on that date, they were
part of an identifiable group of potential victims of which
appellees were aware; when viewing the complaint liberally and
taking the facts alleged as true, appellant sufficiently
demonstrated that the actions or inactions taken by appellees
deprived her and her husband of their constitutional rights to
life and liberty in violation of section 16-123-105 of the
Arkansas Civil Rights Act and the Arkansas Constitution; the
stated facts formed the basis of a civil-rights claim.
11. Constitutional law -- civil-rights violation -- negligence
insufficient to impose liability under section 1983. -- Where
a government official is merely negligent in causing the
injury, no procedure for compensation is constitutionally
required; the guarantee of due process has never been
understood to mean that the State must guarantee due care on
the part of its officials; an allegation that state actors
negligently deprived an individual of his civil rights is not
sufficient to impose liability under section 1983; rather,
such a deprivation must have been the result of a deliberate
decision by the state actors.
12. Constitutional law -- action by prisoner under Eighth
Amendment -- deliberate indifference defined -- such standard
inappropriate under state civil-rights law . -- The Supreme
Court defined "deliberate indifference" within the confines of
an action by a prisoner against state officials under the
Eighth Amendment when it stated that the official must both be
aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw
the inference; although such a standard is appropriate in
analyzing claims of cruel and unusual punishment, the supreme
court did not agree that such standard of conduct was
appropriate under Arkansas's civil-rights law.
13. Constitutional law -- civil-rights action -- conscious
indifference standard -- proof needed. -- 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 the 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; malice can be
inferred either from a conscious indifference to the
consequences of one's actions or from a reckless disregard of
those same consequences.
14. Constitutional law -- appellees acted with conscious
indifference to probable consequences of their actions in
handling inmate -- trial court's dismissal of civil-rights
claim reversed and case remanded. -- Appellant was found to
have pled sufficient facts to support a showing that appellees
acted with conscious indifference to the probable consequences
of their actions or inactions in handling the inmate at the
clinic; the facts alleged supported a finding that appellees
were indifferent to the consequences of their actions in
transporting the inmate to the clinic by failing to take the
necessary precautions to protect the persons present from the
inmate; appellant pleaded sufficient facts pertaining to the
sheriff's knowledge for purposes of review under Rule
12(b)(6); the trial court's dismissal of the civil-rights
claim was reversed and the issue was remanded for further
proceedings.
15. Negligence -- willful or wanton conduct -- defined. -- To
constitute willful or wanton conduct there must be a
deliberate intention to harm or an utter indifference to, or
conscious disregard of, the safety of others; a person acts
willfully and wantonly when he knows or should know in the
light of surrounding circumstances that his conduct will
naturally and probably result in emotional distress and bodily
harm and continues such conduct in reckless disregard of the
consequences.
16. Civil procedure -- test for reviewing complaint under Ark. R.
Civ. P. 12(b)(6) -- trial court's ruling based on improper
standard. -- The trial court ruled that based upon the facts
alleged in the complaint, reasonable minds could not disagree
as to whether appellees' conduct was willful and wanton;
however, whether reasonable minds could not disagree that
appellees' conduct was or was not willful and wanton is not
the test for reviewing a complaint under Ark. R. Civ. P.
12(b)(6); in testing the sufficiency of the complaint, the
pleadings are to be liberally construed, with all reasonable
inferences being resolved in favor of the complaint; the facts
alleged in the complaint are treated as true and viewed in a
light most favorable to the party who filed the complaint.
17. Torts -- facts sufficient to support claim that appellees
acted willfully or wantonly -- trial court's order dismissing
tort claim of willful and wanton conduct reversed. -- The
supreme court was satisfied that the allegations contained in
the complaint, taken as true and construed liberally, stated
sufficient facts to support a claim that appellees acted
willfully or wantonly; the trial court's order dismissing the
tort claim of willful and wanton conduct was reversed, and the
case was remanded.
18. Torts -- outrage claim -- factors needed. -- To establish an
outrage claim, the plaintiff must show that (1) the actor
intended to inflict emotional distress or knew or should have
known that emotional distress was the likely result of his
conduct; (2) the conduct was extreme and outrageous, was
beyond all possible bounds of decency, and was utterly
intolerable in a civilized community; (3) the actions of the
defendant were the cause of the plaintiff's distress; and (4)
the emotional distress sustained by the plaintiff was so
severe that no reasonable man could be expected to endure it.
19. Torts -- outrage claim properly dismissed -- no facts to
support second element required to prove claim. -- The tort of
outrage is not favored by the supreme court and clear-cut
proof is required to establish the elements in outrage cases;
the supreme court agreed with the trial court's dismissal of
the outrage claim, as the court could see no facts that would
support a finding of the second element required to prove a
claim of outrage, that the conduct of appellees was "extreme
and outrageous," was "beyond all possible bounds of decency,"
and was "utterly intolerable in a civilized community"; the
supreme court affirmed as to the dismissal of the outrage
claim.
Appeal from Washington Circuit Court, Second Division; Kim M.
Smith, Judge; affirmed in part; reversed and remanded in part.
Lisle Law Firm, by: Chris Lisle, for appellant.
Duncan & Rainwater, by: Robert A. Russell, Jr., for
appellees.
Donald L. Corbin, Justice.
Appellant Peggy Sue Shepherd, personally and as Administratrix
of the Estate of George Shepherd, appeals the order of the
Washington County Circuit Court dismissing her complaint against
Appellees, Washington County, Sheriff Kenneth McKee, and Deputy
John Doe. The complaint alleged three claims against Appellees for
violation of the Arkansas Civil Rights Act, Ark. Code Ann. 16-
123-101 to -108 (Supp. 1997), tortious outrage, and willful and
wanton conduct. The trial court dismissed the complaint pursuant
to ARCP Rule 12(b)(6) for failure to state a cause of action under
Arkansas law. Appellant raises six points for reversal, which
necessarily involve questions on the law of torts; hence, our
jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(15). We affirm
the dismissal of the claim for tortious outrage, but reverse and
remand as to the claim of willful and wanton conduct and the civil-
rights claim.
The facts that support Appellant's complaint are undeniably
tragic. On November 7, 1995, John Manning, an inmate of the
Washington County Jail, was transported by Washington County Deputy
Pete Williamson to a private medical clinic in Fayetteville for
purposes of receiving medical treatment. At the clinic, Manning
disarmed Deputy Williamson and, in the process of escaping from
custody, shot and killed Deputy Williamson with the officer's gun.
While trying to flee the clinic, Manning attempted to take
Appellant Sue Shepherd hostage. Appellant broke her foot in her
haste to flee from Manning. Appellant's husband George Shepherd
intervened on her behalf and was also shot and killed by Manning.
Manning then stole the Shepherd's truck and wrecked the vehicle
while attempting to flee from officers of the Fayetteville Police
Department, who had responded to the 911 call. Manning then lay
down on the truck's floorboard and turned the gun on himself,
committing suicide.
After receiving briefs and hearing argument from all parties,
the trial court granted Appellees' motion to dismiss pursuant to
Rule 12(b)(6). The trial court ruled that Appellees had no duty to
protect the Shepherds, such that any failure to protect them would
rise to the level of a constitutional violation. Even assuming
that Appellees had a duty to protect the Shepherds, the trial court
reasoned, the complaint still fell short of establishing that the
Appellees were deliberately indifferent to their safety; rather,
the trial court found that the complaint amounted to no more than
an allegation of negligence. The trial court ruled further that
the injuries to Appellant and the death of George Shepherd were the
result of the intervening criminal actions of inmate Manning.
Additionally, the trial court ruled that the facts alleged in the
complaint did not state claims for either tortious outrage or
willful and wanton conduct on the part of Appellees.
We recently set out the test for determining whether a case
was correctly dismissed under Rule 12(b)(6) in Brown v. Tucker, 330
Ark. 435, 954 S.W.2d 262 (1997):
In reviewing the denial of a dismissal granted
pursuant to Rule 12(b)(6), we treat the facts alleged in
the complaint as true and view them in the light most
favorable to the party who filed the complaint. Malone
v. Trans-States Lines, Inc., 325 Ark. 383, 926 S.W.2d 659
(1996). When the trial court decides Rule 12(b)(6)
motions, it must look only to the complaint. Id. This
court has summarized the requirements for pleading facts
as follows:
Arkansas has adopted a clear
standard to require fact pleading:
"a pleading which sets forth a claim
for relief . . . shall contain (1) a
statement in ordinary and concise
language of facts showing that the
pleader is entitled to relief . . ."
ARCP Rule 8(a)(1). Rule 12(b)(6)
provides for the dismissal of a
complaint for "failure to state
facts upon which relief can be
granted." This court has stated
that these two rules must be read
together in testing the sufficiency
of the complaint; facts, not mere
conclusions, must be alleged.
Rabalaias v. Barnett, 284 Ark. 527,
683 S.W.2d 919 (1985). In testing
the sufficiency of the complaint on
a motion to dismiss, all reasonable
inferences must be resolved in favor
of the complaint, and pleadings are
to be liberally construed. Id.;
ARCP Rule 8(f).
Id. at 437-38, 954 S.W.2d at 264 (quoting Malone, 325 Ark. 385, 926 S.W.2d 659 (quoting Hollingsworth v. First Nat'l Bank & Trust Co.,
311 Ark. 637, 846 S.W.2d 176 (1993))). With that standard of
review in mind, we first address Appellant's arguments pertaining
to her civil-rights claim.
I. Civil-Rights Action
Appellant's first four points for reversal concern the trial
court's dismissal of her claim under the Arkansas Civil Rights Act.
Appellant argues that the trial court erred in dismissing her
civil-rights claim by: (1) failing to find a duty owed by
Appellees to protect the Shepherds; (2) finding that the actions of
Manning were an intervening cause of the Shepherds' injuries; (3)
adopting the standard of care of "deliberate indifference"; and (4)
finding that the complaint did not demonstrate that Appellees had
acted with deliberate indifference.
The record reflects that Appellant alleged in her complaint
that separate Appellees, Sheriff McKee and Washington County, had
a duty under the Arkansas Civil Rights Act and the Arkansas
Constitution to maintain control of Manning and to protect the
Shepherds and other members of the public from Manning while he was
in custody and being treated at a private medical clinic.
Appellant alleged that Appellees breached this duty on November 7,
1995, by affirmatively placing the Shepherds in a special position
of danger and creating a substantial, excessive risk of serious and
immediate harm to them and other patients of private medical
facilities where violent inmates are taken. Appellant alleged that
Appellees knew of the substantial risk to patients at the medical
clinic where Manning was taken and were deliberately indifferent to
that risk.
Specifically, Appellant asserts that Appellees acted
recklessly and in conscious disregard to the inherent and obvious
dangers of: (1) adopting a custom and practice of transporting
prisoners in ways which violated the standard taught by the
Arkansas Law Enforcement Training Academy (the Academy); (2)
adopting a custom and practice of transporting prisoners without
having budgeted for or actually having any belly chains available
for use in prisoner transport; (3) adopting a custom and practice
of allowing deputies to transport prisoners in violation of the
standard required for securing and transporting prisoners by the
Academy; (4) continuing a policy where deputies are not allowed to
wear approved security holsters; (5) not having security holsters
for the deputies and not budgeting for such holsters; (6) having a
custom and practice of allowing improperly and undertrained
officers to transport prisoners, wherein "green" officers were
allowed to transport mean inmates, often times alone with improper
equipment; (7) not abiding by the Criminal Detention Facility
Review Commission's (the Commission) mandated requirement for
having a written policy on restraining and dealing with
medical/psychiatric-type patients like Manning; (8) having a custom
and practice which ignored the Commission's requirement to keep the
public away from inmates while at a detention center; (9) not
safeguarding other patients at medical clinics where dangerous
medical/psychiatric-type inmates are being transported; (10)
disregarding the warnings from its own deputies that Manning was a
serious threat and should not be transported alone, and by not
taking adequate measures to secure Manning during transport despite
their knowledge that Manning had attacked other deputies, had tried
to escape while at the jail, had disarmed another officer while in
California, and was suffering from serious mental disorders; (11)
not having a written policy for its officers to do a risk-
assessment analysis prior to transportation of inmates to a medical
clinic; (12) transporting Manning to the medical clinic, and thus
putting the medical clinic's patients in increased danger of an
assault by an inmate; (13) by placing Appellant in unsafe and close
proximity with an inmate who was a known escape risk, and who
defendants knew was violent, aggressive, and mentally disturbed;
(14) by the Sheriff's reckless failure to adequately train or
supervise Deputy John Doe and Deputy Williamson; (15) by Deputy
John Doe's choosing and sending an inexperienced lone deputy to
transport a known psychotic escape risk to a private medical
facility, despite the fact that there were other officers to go
with him or in lieu of him; and (16) by sending a lone rookie
deputy to escort Manning when they knew that such an assignment
required a minimum of two experienced officers. Appellant also
alleged that Appellee Deputy John Doe knew of the substantial risk
of harm to the patients at the clinic and was deliberately
indifferent to that risk in personally assigning an inexperienced
lone deputy to transport Manning that day.
The complaint also reflected past experiences with inmate
Manning that demonstrated his dangerous and violent tendencies.
Particularly, on the day before the shooting, Manning had fought
with another inmate, resulting in an injury to Manning for which he
was taken to the hospital emergency room by Deputy Williamson.
While at the emergency room, Deputy Williamson was relieved by
another deputy, who then witnessed Manning make a move for the door
in an attempt to escape custody. Afterwards, Manning talked about
committing suicide by shooting himself. Upon their return to the
jail, the escorting deputy informed his superiors about Manning's
erratic behavior and warned that Manning posed a risk and should
not be escorted alone.
It was also stated in the complaint that Manning was violent
toward the other inmates and the jailers during his stay at the
Washington County Jail, engaging in the following conduct: (1)
trying to commit suicide, by hanging himself with his bed sheet;
(2) trying to escape, by climbing over the yard wall; (3)
physically attacking jailers on two occasions; and (4) cutting his
own tongue with razor blades on two occasions, for which he
receives stitches. Manning was injured numerous times during
fights with other inmates at the jail, requiring him to receive
medical attention outside the jail, twice at the hospital emergency
room. Manning had been diagnosed in the past with having various
psychological disorders, had been treated for such mental
disorders, and was on prescription narcotics, including Haldol, for
such disorders while he was an inmate in the Washington County
Jail. Approximately four months before the shooting, Manning had
reported to the jail nurse that the Japanese had been putting
images of molesters inside his head; he indicated that he wanted
help because he was scared of what he would do. Manning also spoke
about the Bible in babbling, psychotic ways and had twice tried to
burn out his eyes with cigarettes because he said that the Bible
stated that "if the eyes deceiveth thee then pluck them out." One
month prior to the shooting, Manning had to be escorted by two
jailers whenever he would leave his cell to go to the showers.
Additionally, one jailer reported trying to calm Manning by singing
"Amazing Grace" to the inmate.
The issue that we must resolve is whether the foregoing facts
sufficiently state a cause of action under the Arkansas Civil
Rights Act. This issue is one of first impression. We must first
determine whether Appellees owed a duty of care to the Shepherds to
protect them from harm by a third person. Once a duty of care is
found to exist, we must then determine what standard of conduct to
apply to defendants in such circumstances. As this court has not
had the opportunity to review the substance of a complaint brought
under section 16-123-105, we turn to decisions interpreting the
federal Civil Rights Act of 1871, 42 U.S.C. 1983, for guidance on
this issue. See section 16-123-105(c).
A. Duty of Care
In Martinez v. California, 444 U.S. 277 (1980), the Supreme
Court reviewed a 1983 claim that arose out of the murder of a
fifteen-year-old girl by a parolee five months after the parolee
had been released from prison. The appellants asserted that the
state officials' actions in releasing the parolee subjected
appellants' decedent to a deprivation of her life without due
process of law. Relying upon Baker v. McCollan, 443 U.S. 137
(1979), the Court observed that the first inquiry in any suit
brought under section 1983 is whether the plaintiff has been
deprived by the state of a right secured by the laws and the
Constitution of the United States. In holding that the decedent
had not been so deprived, the Court stated:
[T]he Fourteenth Amendment protected her only from
deprivation by the "State . . . of life . . . without due
process of law." Although the decision to release [the
parolee] from prison was action by the State, the action
of [the parolee] five months later cannot be fairly
characterized as state action. Regardless of whether, as
a matter of state tort law, the parole board could be
said either to have had a "duty" to avoid harm to his
victim or to have proximately caused her death, we hold
that, taking these particular allegations as true,
appellees did not "deprive" appellants' decedent of life
within the meaning of the Fourteenth Amendment.
Her life was taken by the parolee five months after
his release. He was in no sense an agent of the parole
board. Further, the parole board was not aware that
appellants' decedent, as distinguished from the public at
large, faced any special danger. . . . [W]e do hold that
at least under the particular circumstances of this
parole decision, appellants' decedent's death is too
remote a consequence of the parole officers' action to
hold them responsible under the federal civil rights law.
Although a 1983 claim has been described as "a species
of tort liability," it is perfectly clear that not every
injury in which a state official has played some part is
actionable under that statute.
Id. at 284-85 (citations omitted) (footnote omitted) (emphasis
added).
Martinez thus established that where there is no state action
resulting in the deprivation of an individual's civil rights, there
is no liability under section 1983. That the injury to the
individual was remote in time from any state action is an important
consideration in making such a determination. Additionally,
Martinez made clear that in order to establish liability under
section 1983, there must have been a deprivation of a particular
individual's rights, as distinguished from those belonging to the
general public. Thus, in order to sustain a claim under section
1983, a plaintiff must satisfy the following requirements: (1) the
conduct at issue was performed under color of state law; (2) the
conduct caused a deprivation of constitutional rights; and (3) the
deprivation occurred without due process of law. See also Screws
v. United States, 325 U.S. 91 (1945).
Following the Court's decision in Martinez, the Seventh
Circuit Court of Appeals was faced with a similar suit under
section 1983. In Bowers v. DeVito, 686 F.2d 616 (7th Cir. 1982),
the appellant was the administrator of the estate of Marguerite
Anne Bowers, who was murdered by Thomas Vanda in 1977. The
appellant filed suit against officers and physicians of the
Illinois Department of Mental Health and Developmental
Disabilities, alleging that they had violated the decedent's civil
rights by releasing Vanda in April 1976. Although the court
affirmed the lower court's grant of summary judgment to the
appellees on the basis of the Supreme Court's decision in Martinez,
the court warned that if "the state puts a man in a position of
danger from private persons and then fails to protect him, it will
not be heard to say that its role was merely passive; it is as much
an active tortfeasor as if it had thrown him into a snake pit."
Id. at 618. Ultimately, the court concluded that the appellees had
not placed the decedent in a position of danger, but had simply
failed to adequately protect her, "as a member of the public," from
a dangerous individual. Id.
Similarly, in Estate of Gilmore v. Buckley, 787 F.2d 714 (1st
Cir. 1986), Patricia Gilmore's executor alleged that the appellees
had violated Gilmore's civil rights by releasing inmate Bradford
Prendergast from prison for a weekend furlough, during which time
Prendergast murdered Gilmore. Unlike the decedents in Martinez and
Bowers, Gilmore had been the victim of the crime for which
Prendergast had originally been sentenced to prison. The First
Circuit Court of Appeals recognized that the initial question was
whether the failure of the appellees to protect Gilmore from attack
by a private third party is actionable under section 1983.
Although holding that such action was not cognizable under the
facts of that case, the court stated that "in some special
circumstances, where a state has assumed a 'special custodial or
other relationship' in respect of a particular person, the state's
failure to protect that person might implicate the due process
clause." Id. at 720 (citing Fox v. Custis, 712 F.2d 84, 88 (4th
Cir. 1983)) (footnote omitted). The court concluded that in order
for there to have been a special relationship in that case, the
state must have been more directly implicated than it was in the
events causing the victim's death, such as where "the state, by
exercising custody or control over the plaintiff, effectively
strips her of her capacity to defend herself, or affirmatively
places her in a position of danger that she would not otherwise
have been in." Id. at 722 (emphasis added).
In Nishiyama v. Dickson County, Tenn., 814 F.2d 277 (6th Cir.
1987), the Sixth Circuit Court of Appeals reversed the lower
court's dismissal of the appellants' 1983 claim against Dickson
County, Sheriff Doyle Wall, and Deputy Sheriff Carroll Fiser. The
complaint alleged that the sheriff's policy and practice of
entrusting fully equipped, official patrol cars to inmate Charles
Hartman, a convicted felon, deprived their daughter Kathy Nishiyama
of her life without due process of law. The facts alleged
demonstrated that Hartman, a jail trustee, was cruising alone in
the patrol car when he stopped Nishiyama in her vehicle and beat
the girl to death. Additionally, the facts showed that Hartman was
dangerous and had assaulted a young woman in the past. On the
night in question, Hartman had driven Deputy Fiser from the jail to
the deputy's farm. Deputy Fiser then told Hartman to drive the car
back to the jail. Hartman instead began roaming the highways of
three counties, stopping several motorists by using the car's
flashing blue lights. When officials in neighboring Montgomery
County became aware of the fact that a Dickson County patrol car
was stopping motorists in their jurisdiction, they notified the
Dickson County dispatcher, who, in turn, notified Sheriff Wall and
Deputy Fiser. Neither the sheriff nor the deputy took any action.
Subsequent to this notification, Hartman used the patrol car to
pull over Nishiyama's car and murder her.
Satisfied with the district court's conclusion that the
appellees' practice of providing Hartman with a marked, fully
equipped patrol car was action taken under color of state law, the
Sixth Circuit held that the appellees' actions did deprive
Nishiyama of her constitutional interest in life, focusing on the
fact that the appellees had specifically "authorized Hartman to use
and have sole control over the patrol car for his own private
purposes." Id. at 280. The court reasoned further that Hartman
had remained in the custody of the Dickson County Sheriff's
Department before, during, and after the murder, and that at no
time did Hartman attempt to escape that custody. In distinguishing
the facts before it from those present in Martinez, 444 U.S. 277,
where the parolee had been out of police custody for some five
months and, thus, the identity of any potential victims was
difficult to define, the court stated:
Here the radius of harm is more distinct. When Fiser and
Wall allowed Hartman to drive unescorted between the jail
and Fiser's farm, persons in the vicinity were at risk,
particularly motorists who out of respect for and fear of
law enforcement vehicles respond to blue flashing lights.
The identification of potential victims became even
easier once the sheriff's department was notified that
its patrol car was stopping motorists in Montgomery
County. The defendants should have known that Hartman
was stopping unwitting motorists under the aura of law
enforcement represented by the patrol car and that, as a
result, drivers like Kathy Nishiyama in Montgomery and
surrounding counties were in jeopardy.
Id. The court went on to distinguish these facts from those in
Martinez by holding that the death of Nishiyama was not so remote
a consequence of the appellees' actions, through their established
practice of entrusting the patrol car to Hartman. As opposed to
those cases in which the state officers merely possessed
information that circumstances endangering the public existed, the
state actors here took the further step of facilitating the crime
with their actions "by providing the criminal with the necessary
means and the specific opportunity to commit his crime." Id. at
281.
In Wells v. Walker, 852 F.2d 368 (8th Cir. 1988), upon which
Appellant relies, the appellants represented the estate of Laverne
Sanderlin, who ran a small store in Dumas, Arkansas. Sanderlin's
store also served as a bus station and a "commercial transportation
pick-up point" for the Arkansas Department of Correction, where
released prisoners were dropped off to catch buses for their
destinations. Parolee Larry Dean Robertson was dropped off at
Sanderlin's store on April 20, 1987, at approximately 6:50 p.m. and
was scheduled to catch a bus leaving the following day around noon.
Robertson did not catch his bus the following day, and at
approximately 1:30 p.m., he murdered Sanderlin at her store. The
appellants alleged that the state prison officials had violated
Sanderlin's civil rights by releasing Robertson and transporting
him to Sanderlin's store without a warning that he was dangerous.
The Eighth Circuit Court of Appeals observed that the first
issue to be determined was whether Sanderlin possessed a right
arising under the Fourteenth Amendment to be protected by the state
from harm inflicted by a third party, and, if so, whether the state
defendants' conduct had deprived her of such right within the
meaning of the due process clause. The court observed further that
as a general rule, members of the public at large have no
constitutional right to be protected by the state from harm
inflicted by third parties. The court then acknowledged the
various decisions that recognized the two situations in which a
particular individual, as distinguished from the general public, is
entitled to state protection from harm by third parties: (1) when
a special custodial or other relationship created or assumed by the
state exists between the individual and the state, and (2) when the
state affirmatively places the particular individual in a position
of danger in which the individual would not otherwise have been.
Id. (citing Fox, 712 F.2d 84, and Bowers, 686 F.2d 616). The court
explained that "in these situations an affirmative right to
protection by the state may arise in favor of the victim of private
violence." Id. at 371. The court held:
We believe plaintiffs' complaint adequately pleads the
basis of Sanderlin's right of protection. Plaintiffs
allege defendants took action under Arkansas law to
provide postrelease transportation for Robertson and to
utilize Sanderlin's store as "the closest commercial
transportation pick-up point." These actions had the
result of placing Sanderlin, unlike members of the
general public, in a[n] unique, confrontational encounter
with a person whom plaintiffs allege had exhibited
violent propensities. We thus agree with the district
court's assessment that "the allegations of the complaint
* * * when taken as true could support a finding of a
`close relationship' * * * or the existence of a `special
danger' to [Sanderlin]" in the context of a violation of
Sanderlin's due process rights.
Id. (citations omitted) (emphasis added). Notwithstanding that
holding, the court concluded that the defendants' conduct did not
deprive Sanderlin of her constitutional rights, as the complaint
failed to characterize their conduct as anything other than
ordinary negligence.
In Cornelius v. Town of Highland Lake, Alabama, 880 F.2d 348
(11th Cir. 1989), the appellant Harriet Cornelius alleged that the
state and municipal defendants had violated her civil rights by
failing to protect her from two prison inmates who were assigned to
a community work program at the town hall in Highland Lake, where
Cornelius worked as the town clerk. The facts showed that on
November 8, 1985, Cornelius was abducted at knife point by two
work-squad inmates, forced to surrender her car to them, and
accompany them in their flight through three states. During her
abduction, the inmates held Cornelius hostage for three days,
wherein they terrorized her by threatening to sexually and
physically abuse her and kill her. Ultimately, the two inmates
left Cornelius tied to a tree outside Columbus, Georgia. In
discussing the "special relationship" test, the Eleventh Circuit
Court of Appeals stated:
Under the analysis, government officials may be held
liable for the deprivation by a third party of a private
citizen's due process rights when a special relationship
is found to exist between the victim and the third party
or between the victim and the government officials.
Wright v. City of Ozark, 715 F.2d 1513, 1515 (11th Cir.
1983). When the duty which arises by virtue of the
special relationship is coupled with some degree of
culpable conduct on the defendant's part, 1983
liability attaches.
Id. at 352-53 (footnote omitted). The court concluded that the
facts alleged in the complaint raised an issue as to whether
Cornelius and the defendants enjoyed a special relationship, such
that the state had assumed responsibility to protect her. The
court emphasized the fact that Cornelius worked for some of the
defendants and that, if she wanted to continue her employment as
town clerk, "she had to work in the environment created by the town
officials; one that included routine exposure to prison inmates
around the town hall." Id. at 355. The court held further:
In this case, the defendants did indeed create the
dangerous situation of the inmates' presence in the
community by establishing the work squad and assigning
the inmates to work around the town hall. Moreover, the
defendants increased Mrs. Cornelius's vulnerability to
harm by regularly exposing her to the work squad inmates
by virtue of her position as Town Clerk. These actions,
coupled with the degree of control the town officials
exercised over Mrs. Cornelius as Town Clerk, lead us to
conclude that there is a genuine issue relevant to the
existence of a special relationship between the town
officials and the plaintiff implicating her due process
rights.
Id. at 356 (footnote omitted). Relying on the Sixth Circuit's
holding in Nishiyama, the court concluded:
[T]he prison officials' established practice of assigning
dangerous prisoners to the community work squads and
entrusting their supervision to town officials with no
training in handling prisoners, as well as the town
officials' actions in assuming custody of the dangerous
prisoners without the proper training, "set in motion the
specific forces that allowed [the inmates] to commit
[their] crime."
Id. at 357 (quoting Nishiyama, 814 F.2d at 281).
From the foregoing decisions, the evolution of civil-rights
claims and liability under section 1983 is apparent. The Court's
decision in Martinez, 444 U.S. 277, established that any claim
pursuant to section 1983 must state facts demonstrating that the
conduct of a state actor deprived a particular individual of his or
her constitutional rights without due process of law. In
determining whether it was state action that resulted in the
deprivation of constitutional rights, the Court considered the fact
that the injury to the individual was remote in time from the state
action. In Bowers, 686 F.2d 616, the court cautioned that even
though the state action was not the direct cause of the deprivation
of the individual's rights, where the state puts an individual in
a position of danger from the acts of a third party, the state may
be liable under section 1983. In Buckley, 787 F.2d 714, the court
recognized two situations in which the state could be held liable
under section 1983 for the deprivation of an individual's civil
rights by a third party: (1) where the state has assumed a
"special custodial or other relationship" with respect to the
individual, or (2) where the state has affirmatively placed an
individual in a position of danger from third parties. In
Nishiyama, 814 F.2d 277, the court held that where the state actors
had, by established practice, facilitated the deprivation of the
individual's constitutional rights by providing the third party
with the specific means and opportunity to commit the crime against
the individual, liability would result under section 1983. The
Nishiyama court also recognized that although an individual may not
be personally known to the state actors, the fact that he or she is
part of an identifiable group of potential victims satisfies the
requirement under the due process clause that there be a
deprivation of a particular individual's rights. Moreover, the
court in Nishiyama considered important the fact that the harmful
action was committed by an inmate who was at all relevant times in
the custody and control of the state defendants.
In Wells, 852 F.2d 368, the court recognized that where the
state actors used an individual's place of business for the purpose
of releasing paroled prisoners, liability attaches under section
1983, as the state actors were said to have affirmatively placed
the individual in an unique confrontational encounter with
potentially dangerous persons. In Cornelius, 880 F.2d 348, the
court held that state actors may be liable upon a showing of a
"special relationship" between the individual victim and the third
party or between the victim and the government actors. The
Cornelius court stated that a "special relationship" exists where
the dangerous environment was created by an established practice of
the state actors, thereby increasing the individual's vulnerability
to harm by others, and where the state actors exercised a
significant degree of control over the individual victim, such that
she was required to expose herself to the dangerous situation in
order to keep her job. The Cornelius court also noted that the
state and municipal actors had established a practice of assigning
dangerous prisoners to the work squads and entrusting their
supervision to persons untrained in the handling of prisoners.
This court has often stated that ordinarily one is not liable
for the acts of another party unless a special relationship exists
between the tortfeasor and the victim. See, e.g., First Commercial
Trust Co. v. Lorcin Eng'g, Inc., 321 Ark. 210, 900 S.W.2d 202
(1995); Bartley v. Sweetser, 319 Ark. 117, 890 S.W.2d 250 (1994);
Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983). In Smith v. Hansen, 323 Ark. 188, 914 S.W.2d 285 (1996),
this court cited with approval that portion of the Restatement
(Second) of Torts dealing with such liability:
There is no duty so to control the conduct of a
third person as to prevent him from causing physical harm
to another unless
(a) a special relation 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.
Id. at 196, 914 S.W.2d at 289 (quoting Restatement (Second) of
Torts 315 (1965)).
Here, Appellant's claim was filed pursuant to the Arkansas
Civil Rights Act, which differs somewhat from section 1983.
Section 16-123-105, included within the Act, provides in pertinent
part:
(a) Every person who, under color of any statute,
ordinance, regulation, custom, or usage of this state or
any of its political subdivisions subjects, or causes to
be subjected, any person within the jurisdiction thereof
to the deprivation of any rights, privileges, or
immunities secured by the Arkansas Constitution shall be
liable to the party injured in an action at law, a suit
in equity, or other proper proceeding for redress.
Article 2, 2, of the Arkansas Constitution of 1874 provides in
part that "[a]ll men are created equally free and independent, and
have certain inherent and inalienable rights, amongst which are
those of enjoying and defending life and liberty[.]" Article 2,
8, of the Arkansas Constitution guarantees that no person shall
be "deprived of life, liberty or property, without due process of
law," as does the Fourteenth Amendment to the United States
Constitution. It is within these constitutional provisions that
Appellant makes her claim.
Applying the teachings of the foregoing cases to the
circumstances presented in this case, we believe that Appellant's
complaint sufficiently states facts to form the basis of a civil-
rights claim. The facts demonstrate that Appellees were aware that
inmate Manning had violent tendencies, had previously attempted to
escape from their custody, had inflicted injury upon himself and
others, had a history of mental disorders for which he was
receiving medication, and had expressed a desire to commit suicide
by shooting himself the very day before the tragic incident
involving the Shepherds. The facts alleged in the complaint,
demonstrating that Appellees' actions in taking this particular
violent inmate to a private medical clinic where other persons
would be without taking necessary precautions to protect any
potential victims at the clinic from being harmed by the inmate,
support the allegation that the state actors affirmatively placed
the Shepherds in a position of danger.
Additionally, as in Nishiyama, the facts alleged here show
that inmate Manning was at all relevant times in the custody and
control of Appellees. Though we realize that Appellees had an
affirmative obligation to bring Manning to the private clinic to
receive the medical treatment recommended by a physician, we
believe that they also had an obligation to protect the individuals
present at the clinic from any harm that might have resulted from
Manning's known violent tendencies. In this respect, when
Appellees transported Manning from the secured environment of the
jail to the unsecured setting of the medical clinic, they were
effectively transferring the custodial situation from the jail to
the clinic. Accordingly, they had an obligation to secure the
clinic and anyone present from the risk of harm from Manning.
Their alleged failure to do this was particularly critical under
the facts and circumstances of this case, because Appellees were
aware that Manning could barely be controlled by two jailers in the
secured environment of the jail, let alone by one deputy in an
unsecured place such as the medical clinic. As was the case in
Wells, here, the facts pleaded show that Appellees placed the
Shepherds in an unique confrontational encounter with a potentially
dangerous individual. We caution that we do not, by this decision,
attempt to establish the specific procedures to be followed when
transporting a violent inmate from the jail to an unsecured public
place for medical treatment. We hold only that the alleged actions
or inactions taken by Appellees in this case fell short of their
duty to protect potential victims from the harm created by this
inmate.
We thus conclude that Appellant has pleaded facts sufficient
to support a determination that Appellees had a duty to protect her
and her husband from the violence that befell them as the result of
inmate Manning's actions. When Appellees undertook to transport
Manning from the secured confines of the jail to an unsecured
environment, they in effect relocated the custodial environment to
the private clinic. These actions support a finding of a special
custodial relationship between Appellees and the Shepherds, such
that Appellees had a duty to protect them from the violent actions
committed by Manning. We conclude further that even though the
Shepherds were not personally known by Appellees to be patients at
the clinic on that date, they were part of an identifiable group of
potential victims of which Appellees were aware. In sum, we
believe that when viewing the complaint liberally and taking the
facts alleged as true, Appellant sufficiently demonstrated that the
actions or inactions taken by Appellees deprived the Shepherds of
their constitutional rights to life and liberty in violation of
section 16-123-105 and the Arkansas Constitution.
Because we conclude that, under the particular facts alleged
in this case, Appellees owed a duty to protect the Shepherds and
the other patients and staff present at the medical clinic that
date, we must now determine the proper standard of conduct to be
imposed on defendants in such a situation. We need not address the
trial court's determination that the damage to the Shepherds was
caused by the intervening criminal actions of Manning, as our
determination that Appellees had a duty to protect the Shepherds
from harmful actions committed by Manning renders that issue moot.
B. Standard of Conduct
Appellant urges this court to adopt a less-stringent standard
of care than that of "deliberate indifference," which has been
applied by the federal courts. Appellant advocates that we adopt
a standard of conduct of "gross negligence." Appellee, on the
other hand, urges that we adopt the federal standard of "deliberate
indifference." Appellant alternatively contends that the facts set
out in the complaint are sufficient to support a showing that
Appellees acted with deliberate indifference, as defined by the
Supreme Court in Farmer v. Brennan, 511 U.S. 825 (1994). For the
reasons outlined below, we decline to adopt either of the proposed
standards. A review of the federal decisions in this area is
helpful to our determination.
In Daniels v. Williams, 474 U.S. 327 (1986), the Supreme Court
held that an allegation of a civil-rights violation based upon the
negligence of state actors was not sufficient to sustain a suit
under section 1983. The Court concluded that "the Due Process
Clause is simply not implicated by a negligent act of an official
causing unintended loss of or injury to life, liberty, or
property." Id. at 328. The Court reasoned:
Historically, this guarantee of due process has been
applied to deliberate decisions of government officials
to deprive a person of life, liberty, or property. . . .
This history reflects the traditional and common-sense
notion that the Due Process Clause, like its forebear in
the Magna Carta, . . . was "'intended to secure the
individual from the arbitrary exercise of the powers of
government,'" Hurtado v. California, 110 U.S. 516, 527
(1884) (quoting Bank of Columbia v. Okely, 4 Wheat. 235,
244 (1819)). . . . By requiring the government to follow
appropriate procedures when its agents decide to "deprive
any person of life, liberty, or property," the Due
Process Clause promotes fairness in such decisions. And
by barring certain government actions regardless of the
fairness of the procedures used to implement them, . . .
it serves to prevent governmental power from being "used
for purposes of oppression[.]"
Id. at 331-32 (citations omitted) (emphasis added). In a related
case, the Court clarified its holding in Daniels, stating that
"[i]n other words, where a government official is merely negligent
in causing the injury, no procedure for compensation is
constitutionally required." Davidson v. Cannon, 474 U.S. 344, 347
(1986) (emphasis added). The Court explained:
Respondents' lack of due care in this case led to
serious injury, but that lack of care simply does not
approach the sort of abusive government conduct that the
Due Process Clause was designed to prevent. . . . The
guarantee of due process has never been understood to
mean that the State must guarantee due care on the part
of its officials.
Id. at 347-48. Thus, Daniels and Davidson established that an
allegation that state actors negligently deprived an individual of
his civil rights is not sufficient to impose liability under
section 1983; rather, such a deprivation must have been the result
of a deliberate decision by the state actors.
In Farmer, 511 U.S. 825, the Supreme Court defined "deliberate
indifference" within the confines of an action by a prisoner
against state officials under the Eighth Amendment:
We reject petitioner's invitation to adopt an
objective test for deliberate indifference. We hold
instead that a prison official cannot be found liable
under the Eighth Amendment for denying an inmate humane
conditions of confinement unless the official knows of
and disregards an excessive risk to inmate health or
safety; the official must both be aware of facts from
which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the
inference.
Id. at 837 (emphasis added). While the definition announced in
Farmer may work well in analyzing claims of cruel and unusual
punishment within the framework of the Eighth Amendment, we do not
agree that such standard of conduct is appropriate under our
State's civil-rights law. We opt, instead, for the standard of
"conscious indifference," as defined by this court's previous
decisions.
In Freeman v. Anderson, 279 Ark. 282, 651 S.W.2d 450 (1983),
this court held that in order to show that a defendant acted with
conscious indifference, it must appear that he knew or had reason
to believe that his actions were about to inflict injury, and that
he continued in his course with a conscious indifference to the
consequences of his actions, from which malice may be inferred.
Similarly, in National By-Products, Inc. v. Searcy House Moving
Co., Inc., 292 Ark. 491, 731 S.W.2d 194 (1987), this court outlined
the necessary proof to establish that one had acted wantonly and
with a conscious indifference to the consequences:
Wantonness is essentially an attitude of mind and imparts
to an act of misconduct a tortious character, such
conduct as manifests a `disposition of perversity.' Such
a disposition or mental state is shown by a person, when,
notwithstanding his conscious and timely knowledge of an
approach to an unusual danger and of common probability
of injury to others, he proceeds into the presence of
danger, with indifference to consequences and with
absence of all care.
. . .
It is not necessary to prove that the defendant
deliberately intended to injure the plaintiff. It is
enough if it is shown that, indifferent to consequences,
the defendant intentionally acted in such a way that the
natural and probable consequence of his act was injury to
the plaintiff.
Id. at 493-94, 731 S.W.2d at 195-96 (emphasis added) (quoting Ellis
v. Ferguson, 238 Ark. 776, 385 S.W.2d 154 (1964)).
Thus, 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 the 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."
Stein v. Lukas, 308 Ark. 74, 78, 823 S.W.2d 832, 834 (1992)
(quoting Dongary Holstein Leasing, Inc. v. Covington, 293 Ark. 112,
732 S.W.2d 465 (1987), rev'd on other grounds, 299 Ark. 431, 773 S.W.2d 94 (1989), (citing to Arkansas Model Jury Instruction
2217)). "Hence, malice can be inferred either from a conscious
indifference to the consequences of one's actions or from a
reckless disregard of those same consequences." Id.
Applying that standard to the circumstances of this case, we
believe that Appellant has pleaded sufficient facts to support a
showing that Appellees acted with conscious indifference to the
probable consequences of their actions or inactions in handling
inmate Manning at the clinic. Taking the facts alleged in the
complaint as true, as we are required to do, Appellees knew that
Manning had violent tendencies, had previously attempted to escape
custody, had fought with other inmates and jailers, had
intentionally injured himself on two separate occasions, had
attempted to commit suicide in his jail cell, and had talked about
committing suicide by shooting himself the day before the incident
in question occurred. The facts alleged also demonstrate that
Appellees were aware of the risks involved in transporting inmates,
but that they disregarded these risks by sending a lone officer,
who was not sufficiently trained nor properly equipped, to handle
this particular inmate in a public place. The facts alleged thus
support a finding that Appellees were indifferent to the
consequences of their actions in transporting Manning to the clinic
by failing to take the necessary precautions to protect the persons
present from the inmate. We are not persuaded by Appellees'
argument that the complaint failed to allege actual knowledge of
Manning's violent tendencies on the part of the sheriff. We
believe that Appellant has pleaded sufficient facts pertaining to
the sheriff's knowledge for purposes of our review under Rule
12(b)(6).
Accordingly, we reverse the trial court's dismissal of the
civil-rights claim and remand this issue for further proceedings
consistent with this opinion.
II. Willful & Wanton Conduct
For her next point for reversal, Appellant contends that the
trial court erred in dismissing her tort claim against Appellees
for engaging in willful and wanton conduct, which resulted in harm
to the Shepherds. We agree.
Incorporating all the facts alleged in the civil-rights claim,
Appellant argues that based on the sheriff's experience and
training, he knew just how dangerous prisoner escorts could be and
that such escorts posed a safety risk to the public. Despite this,
he consciously disregarded the risk by sending that particular
inexperienced and under-equipped deputy, with that particular
violent, psychotic inmate, to the private medical clinic at a
particular time when other patients would be present. Appellant
contends further that the fact that the sheriff later admitted that
the problem stemmed from "green" deputies taking care of mean
inmates, and that the public should never be exposed to this
problem, the sheriff demonstrated that he consciously disregarded
a known risk.
To constitute willful or wanton conduct, this court has stated
that there must be a deliberate intention to harm or an utter
indifference to, or conscious disregard of, the safety of others.
Young v. Paxton, 316 Ark. 655, 873 S.W.2d 546 (1994); Daniel
Constr. Co. v. Holden, 266 Ark. 43, 585 S.W.2d 6 (1979). In Croom
v. Younts, 323 Ark. 95, 913 S.W.2d 283 (1996), this court cited
with approval the definition of willful or wanton conduct supplied
in Arkansas Model Jury Instruction 404:
A person acts willfully and wantonly when he knows
or should know in the light of surrounding circumstances
that his conduct will naturally and probably result in
emotional distress [and bodily harm] and continues such
conduct in reckless disregard of the consequences.
Id. at 101, 913 S.W.2d at 286.
Here, the trial court ruled that based upon the facts alleged
in the complaint, reasonable minds could not disagree as to whether
Appellees' conduct was willful and wanton. Whether reasonable
minds could not disagree that Appellees' conduct was or was not
willful and wanton is not the test for reviewing a complaint under
Rule 12(b)(6). Instead, in testing the sufficiency of the
complaint, the pleadings are to be liberally construed, with all
reasonable inferences being resolved in favor of the complaint.
Brown, 330 Ark. 435, 954 S.W.2d 262. Moreover, we treat the facts
alleged in the complaint as true and view them in a light most
favorable to the party who filed the complaint. Id.
For the reasons previously outlined with regard to "conscious
indifference," we are satisfied that the allegations contained in
the complaint, taken as true and construed liberally, state
sufficient facts to support a claim that Appellees acted willfully
or wantonly. Accordingly, we reverse the trial court's order
dismissing the tort claim of willful and wanton conduct, and remand
for further proceedings consistent with this opinion.
III. Outrage
For the last point for reversal, Appellant argues that the
trial court erred in ruling that the complaint failed to state
sufficient facts that would support a claim for tortious outrage.
Incorporating all the facts alleged in the civil-rights claim,
Appellant additionally asserts that the outrage lies in the
following facts alleged in her complaint: (1) the sheriff knew the
dangers posed by prisoner escorts, but ignored that risk; (2) the
sheriff had none of the required written policies for dealing with
medical/psychiatric-type inmates like Manning; (3) the sheriff knew
that inmate Manning was violent, psychotic, a known escape risk,
and that Manning had attacked and attempted to disarm officers in
the past; (4) the sheriff had been warned the night before that two
guards should be sent to escort Manning, and he later admitted that
he should have sent two guards with Manning; (5) the one guard,
Deputy Williamson, sent by the sheriff had only been a jailer for
eight months, had never been to the police academy, was not a
certified law enforcement officer, and had been reprimanded on a
previous escort for failing to keep track of his inmates; (6)
Deputy Williamson did not shackle inmate Manning properly because
there were no belly chains available; (7) the sheriff did not
provide his deputies with security holsters designed to prevent
anyone other than the officer from pulling out the guns; (8) there
were other more experienced guards available for the escort, but
the sheriff sent Deputy Williamson alone because it would be "good
training"; and (9) the sheriff later admitted that the problem was
"green" deputies escorting mean inmates, and that the public should
never be exposed to this. We do not agree that these facts support
a claim that Appellees engaged in outrageous behavior, as defined
by this court's prior decisions.
To establish an outrage claim, the plaintiff must show: (1)
the actor intended to inflict emotional distress or knew or should
have known that emotional distress was the likely result of his
conduct; (2) the conduct was "extreme and outrageous," was "beyond
all possible bounds of decency," and was "utterly intolerable in a
civilized community"; (3) the actions of the defendant were the
cause of the plaintiff's distress; and (4) the emotional distress
sustained by the plaintiff was so severe that no reasonable man
could be expected to endure it. Brown, 330 Ark. 435, 954 S.W.2d 262.
The trial court dismissed the outrage claim, relying in part
on this court's previous holdings that the tort of outrage is not
favored by this court and that clear-cut proof is required to
establish the elements in outrage cases. See, e.g., Croom, 323
Ark. 95, 913 S.W.2d 283; Ross v. Patterson, 307 Ark. 68, 817 S.W.2d 418 (1991); Cordes v. Outdoor Living Ctr., Inc., 301 Ark. 26, 781 S.W.2d 31 (1989); Harris v. Arkansas Book Co., 287 Ark. 353, 700 S.W.2d 41 (1985); Givens v. Hixson, 275 Ark. 370, 631 S.W.2d 263
(1982). We agree with the trial court's ruling on this claim, as
we can see no facts that would support a finding of the second
element required to prove a claim of outrage, that the conduct of
Appellees was "extreme and outrageous," was "beyond all possible
bounds of decency," and was "utterly intolerable in a civilized
community." For this reason, we affirm as to the dismissal of the
outrage claim.
Affirmed in part; reversed and remanded in part.
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