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Interstate Commission for Adult Offender Supervision | Ensuring Public Safety for the 21st Century

Bench Book - 5.2.2.1 Tort Claims by Offenders

Offenders will sometimes allege that officers were negligent in carrying out their duties under the Compact. For example, in Grayson v. Kansas, No. 06-2375-KHV, 2007 WL 1259990, at *1 (D. Kan. Apr. 30, 2007), a probationer transferred under the Compact from Missouri to Kansas alleged that Kansas officials were negligent in detaining him for more than five months after a preliminary violation hearing without notifying Missouri officials that he was incarcerated. The court concluded that, as a matter of controlling Kansas law, the Kansas officials’ failure to act did not implicate a specific duty necessary to sustain a negligence claim. Id. at *5. The court reached a similar conclusion with respect to officials in the sending state. Id. at *8. None of the officials committed an affirmative act or made a specific promise to the plaintiff that would suffice to create an exception under Kansas’ public duty doctrine, which states that law enforcement officers owe their duty to the public at large and not to any particular individual, absent an affirmative act causing injury or a specific promise to the individual. (The public duty doctrine is discussed in greater detail in section 5.3.7.)

In a later order issued in the same case, the court again noted the lack of an affirmative act sufficient to breach Kansas’ public duty doctrine. Grayson v. Kansas, No. 06-2375-KHV, 2007 WL 2994070, at *1, *10 (D. Kan. Oct. 12, 2007). The court also noted that a special duty can arise under Kansas law for nondiscretionary responsibilities that an officer is required to carry out by law. Such a duty existed in the context of ICAOS Rule 4.109(a), which uses the word “shall” and thus requires a receiving state to notify a sending state of any violation within 30 calendar days of discovery of the violation. In this case, however, there was no dispute that Kansas officials fulfilled that duty, initially sending their violation report to Missouri in a timely fashion. Because no other nondiscretionary rule applied with respect to the offender’s lengthy incarceration subsequent to the initial notification, there was no additional duty, and therefore no actionable negligence. Still, it is important to note the distinction between discretionary and nondiscretionary acts, which can play a role in the defenses available to officers sued in tort. (That distinction is discussed in section 5.3.2.)

Other cases have found that the language of the Compact and related state compact-enabling statutes can give rise to a duty of care supporting tort liability. In Paull v. Park County, 218 P.3d 1198 (Mont. 2009), a Compact probationer was injured when the contract van service hired to transport him from the receiving state (Florida) back to the sending state (Montana) for a violation hearing crashed, killing one of the drivers and injuring the probationer. The probationer sued Montana officials, alleging that the crash and his injuries were caused by the driver’s negligence and that the drivers were agents of the state probation officials who had hired them to do the work. (The facts of the crash were extraordinary. The driver lost control of the van and rolled it as he was swerving, trying to spill plastic containers into which the shackled prisoners had urinated when the drivers would not allow them to make toilet stops.)

The Supreme Court of Montana held that under the language of Montana’s compact-enabling statute, the state had a responsibility for its probationers and a responsibility for returning them to Montana when necessary. The court also held that the transportation of prisoners was an inherently dangerous activity and that, therefore, under Montana law, a governmental unit that contracts to transport prisoners may be held vicariously liable for injuries caused by an independent contractor carrying out the activity.