Shepherd v. Washington County

• Decision Date: 19 February 1998
• Docket Number: No. 97-530,97-530
• Citation: 331 Ark. 480,962 S.W.2d 779
• Parties: Peggy Sue SHEPHERD, Personally and as Administratrix of the Estate of George Shepherd, Deceased, Appellant, v. WASHINGTON COUNTY, Arkansas, Sheriff Kenneth McKee, personally and in his official capacity, and Deputy John Doe, personally and in his official capacity, Appellees,
• Court: Arkansas Supreme Court

Page 779

962 S.W.2d 779

331 Ark. 480

Peggy Sue SHEPHERD, Personally and as Administratrix of the Estate of George Shepherd, Deceased, Appellant, v. WASHINGTON COUNTY, Arkansas, Sheriff Kenneth McKee,

personally and in his official capacity, and

Deputy John Doe, personally and in his

official capacity, Appellees,

No. 97-530.

Supreme Court of Arkansas.

Feb. 19, 1998.

Chris Lisle, Springdale, for appellant.

Robert A. Russell, Jr., Little Rock, for appellee.

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)(16). 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 civilrights 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. at 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...