The tort system provides three valuable services to this country. The first valuable service is a means by which victims of someone else's wrongdoing may seek a remedy. The second valuable service is related to the first: if the victim is able to recover a fund representing her past and future losses caused by another, it is less likely that she will need public assistance to pay for those costs. The third valuable service is deterrence: history has shown that certain corporations and governmental entities will not do the right thing by taking exploding Pintos off the road, or removing predator cops from their payrolls, simply because it is the right thing to do. The threat of liability steps into the void where a conscience otherwise would be.
These valuable services are subject to the limitations of sovereign immunity, where the wrongdoer (evildoer?) is a governmental entity. Because the king can do no wrong, even a catastrophically-injured victim of governmental wrongdoing may sue the government only under causes of action that the government will allow. Those causes of action are defined by elimination: the Federal Tort Claims Act, and state and political subdivisions tort claims acts modeled after the FTCA, list causes of action that are immune from liability. Even causes of action that are not immune are often subject to damages caps - - despite that policies of insurance cover liability claims against governmental entities.
About a month ago, the United States Supreme Court issued Castle Rock v. Gonzales, a civil rights action implicating the failure of a police department to respond to repeated pleas for help from a woman whose husband had kidnapped their children. The husband murdered the children while the police dismissed the woman's calls. The Court noted that although it was eviscerating the hope for a remedy for such a plaintiff under the civil rights statutes, the plaintiff could still seek a remedy in tort law: "Although the framers of the Fourteenth Amendment and the Civil Rights Act of 1871, 17 Stat. 13 (the original source of §1983), did not create a system by which police departments are generally held financially accountable for crimes that better policing might have prevented, the people of Colorado are free to craft such a system under state law."
So, are the Supremes correct, in musing that a plaintiff still has a remedy in the state courts?
Yesterday, the Nebraska Supreme Court issued its decision in Johnson v. State, a tort claim arising out of the rape of a female prison inmate by a correctional officer. The state tort claims act, like the FTCA, bars claims for assault: thanks to that legislation, there is no liability for the fact of the rape itself. But Johnson's cause of action was based on allegations of negligent failure of the prison to supervise its correctional officers according to DOC policy and procedure, and the prison's decision to retain the officer on its payroll despite its knowledge that the officer had a history of assaults.
The Johnson court held that claims for negligent supervision and negligent retention are, in fact, the same thing as a claim for the assault itself. In so doing, the court immunized the State from another cause of action that the legislature had not exempted from immunity. It shut off any hope for any remedy for the plaintiff (who, by the way, had also seen her 1983 case dismissed by a federal judge); and it eliminated an important incentive for prisons and law enforcement agencies to remove predatory officers from their payrolls. Certainly the Johnson decision contravenes the suggestion in Castle Rock that a remedy should be available, even if the Supremes prefer it to not come from federal law.
It could be said that this is a way for the Court to hint to legislatures that they should revise state and political subdivisions tort claims acts, to provide a remedy for victims of state misconduct and negligence, and to provide a common-sense measure of accountability to deter government from keeping batterers and rapists on the payroll. But the legislatures just aren't likely to do that - - particularly in the climate that, this week, spawned House passage of federally-mandated medical malpractice caps and immunity for firearms manufacturers.
So in the face of Castle Rock and state court decisions like Johnson, the tort system fails. Victims of governmental misconduct have no remedy. The state may well pick up the cost of the victim's past and future medical and counseling assistance, where a governmental liability insurance policy might otherwise have covered those costs.
And, there is one fewer incentive for government to cull its rolls of predators. Apparently the threat of liability wasn't enough of a reason for the Nebraska Department of Correctional Services to properly supervise its officers and enforce its own policies. Now that threat is gone. Someone, please remind me how governmental immunity from liability makes things better for citizens.