Probation Officer Liability and the Public Duty Doctrine

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A recent court of appeals case, Blaylock v. N.C. Department of Correction-Division of Community Corrections, has spurred to write about something I’ve been meaning to write about for a while: probation officer liability when a supervised offender hurts someone.

In Blaylock, a probation officer was supervising a mentally ill probationer named James Oakes who had been identified as a “sexual offender.” When Mr. Oakes didn’t have a proper place to the live the officer made some calls to help him find accommodations. She called and eventually visited a pair of Oakes’s relatives, a married couple with four children, to see if he could live with them. Despite seeing children in the home, the officer did not inform the couple of Oakes’s history as a sexual offender. Two days after the couple agreed to let him move in, Oakes sexually assaulted two of their children.

The couple sued the Division of Community Corrections (DCC) before the Industrial Commission (that’s where you sue state agencies – which would otherwise be immune – under the State Tort Claims Act). They alleged that DCC’s agent, the officer, failed to exercise reasonable care in placing Mr. Oakes in the couple’s home.

DCC raised the public duty doctrine as a defense. Under the public duty doctrine, individual citizens generally have no claim that government officers are obliged to protect them from harm caused by third parties. For example, you typically can’t succeed in a lawsuit against the police department when you’re the victim of a crime – the police have a duty to protect the public at large, but that duty cannot be said to extend to any specific individual. Braswell v. Braswell, 98 N.C. App. 231 (1991). The rule recognizes the limited resources of law enforcement and a refusal to “judicially impose an overwhelming burden of liability for failure to prevent every criminal act.” Id. The doctrine was first extended to North Carolina probation officers in Humphries v. Department of Correction, 124 N.C. App. 545 (1996), where it barred a claim against a probation officer who failed to take action when an offender’s electronic leg band broke, and the offender went on to kill a woman.

The Full Commission disagreed with DCC’s argument and denied its motion for summary judgment, concluding that even if the public duty doctrine applied, this situation might fall within the special relationship exception to the doctrine. On interlocutory appeal, the court of appeals affirmed the Commission’s denial of summary judgment, holding that the public duty doctrine applied, but there was a genuine issue of material fact as to whether the special relationship exception was applicable.

The special relationship exception is one of two generally accepted exceptions to the public duty doctrine (I’ll talk about the other one in a moment). The exception exists when, as you might have guessed, there is a special relationship between public authorities and a person who gets injured, such that the authorities can be said to owe a specific duty to the individual. The most frequently cited example is the relationship between the police and a witness or informant: if the witness is harmed as a result of law enforcement’s negligent failure to protect him or her from retaliation, the public duty doctrine will not bar the witness’s tort claim against the police.

The other exception is the special duty exception, which applies when authorities fail to make good on a specific promise of protection to an individual. General promises of protection or assurances of safety won’t do; they must be specific and detrimentally relied-upon by the victim. For example in McKendall v. Webster, __ N.C. App. __, 672 S.E.2d 768 (2009), the court of appeals said a sheriff’s failure to deliver on a promise to seize a husband’s weapons before the husband killed his wife fell within the exception.

Back to Blaylock, the court of appeals said the probation officer might owe a duty to the assaulted children under the special relationship exception to the public duty doctrine. The officer directly called Mr. Oakes’s relatives and followed up with a visit to talk to them about Oakes moving in. She gave them her card and told them to call her with any questions. The officer’s actions, the court said, placed the children “at a greater risk of being sexually assaulted than they would have been had Mr. Oakes not been placed in their home.” Considered together, these facts might give rise to a special relationship between the officer and the children such that the officer’s negligence in failing to warn about Oakes’s criminal history might be said to breach a duty owed to them as individuals. The case will now go back to the trial court to sort that out.

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