City of Jackson liable for rape?
May 2, 2011 Leave a comment
Phillip Thomas has an interesting post this morning about a recent bench trial against the City of Jackson.
The brief facts of the case are that Toice Wilson murdered Tawana Sandifer. Sandifer was a runaway and before her death, two Jackson police officers engaged in sexual acts with her. Toice Wilson had no connection with JPD.
Sandifer’s family sued the City and the officers alleging that they were responsible for Sandifer’s death. The City claimed that Wilson was the sole cause of Sandifer’s death, the officers were acting outside the scope of employment and that liability for the officers’ criminal conduct was excluded by the Tort Claims Act. Judge Kidd found the city and Wilson 50/50 liable and assessed total damages at $1,000,000 ($500,000 to the City).
Like Phillip, I expect this case to be appealed and if I were to wager, I would bet that this case will be reversed and rendered. First, things have been bad at JPD, but can anyone stand up with a straight face and say that rape is within the course and scope of employment at JPD?
Second, Miss Code 11-46-5 (2) provides that the city’s sovereign immunity is not waived in instances where the employee’s conduct constituted “fraud, malice, libel, slander, defamation or any criminal offense other than traffic violations.” Rape is without a doubt a criminal offense. The plaintiff attempts to get around this defense by arguing that other conduct by JPD (failure to investigate and failure to bring Sandifer in off the streets after a runaway report) reached the level of reckless disregard. Common police actions such as performing investigations and whether someone is brought in are typically discretionary functions for which the City is immune. Miss. Code. 11-46-9 (d) provides that a governmental entity shall not be liable “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused.”
This is a sad case for everyone involved, but not likely to be a case where there is a way for the family to recover from the City of Jackson. Only time will tell.