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Gomez v. Pueblo County:
So here's an unusual prisoner lawsuit. Facts: Inmate escapes from jail, is caught, and is returned to jail. Inmate then tries to escape from jail again and falls 40 feet while scaling down the wall of the jail, sustaining injuries. Legal claim (drafted by an attorney, not the inmate): The people running the jail and the county are liable because their negligence caused the injury. They should have known the inmate would try to escape again and would injure himself, and they didn't exercise their duty of care to make sufficiently sure he couldn't escape.

  There are other claims in the complaint alleging police brutality, and I don't mean to make light of those claims if true. But the negligence argument is just precious. Maybe the answer is for prisons to be designed without walls, so inmates won't hurt themselves falling from them during escapes? Or at least the prison could put up a bunch of signs saying, "CAUTION: Do Not Scale Down Prison Wall. Injuries May Result." Thanks to Howard for the link.
Dave N (mail):
Sort of taking the doctrine of assumption of risk to an extreme, isn't it?
1.13.2008 4:03pm
Richard A. Schafer (mail):
Are you sure this complaint, filed in the "UNTIED STATES DISTRICT COURT" is for real?
1.13.2008 4:18pm
Took a second:
It took a second for me to see what's wrong with "UNTIED STATES DISTRICT COURT."

It's a bad sign when you have a typo in the first line.
1.13.2008 4:25pm
FantasiaWHT:
Would that even work if it were an escape from the tort of false imprisonment instead of legal imprisonment? I thought that any harm incurred while escaping through a dangerous route would not make the false imprisoner liable for those injuries if the captivity itself was without risk of harm?
1.13.2008 4:26pm
advisory opinion:
Ex turpi causa non oritur actio.
1.13.2008 4:29pm
FantasiaWHT:

It took a second for me to see what's wrong with "UNTIED STATES DISTRICT COURT."

It's a bad sign when you have a typo in the first line.


Gotta set that auto-spellcheck to not ignore words in all caps
1.13.2008 4:31pm
Bill Poser (mail) (www):
I agree that the negligence claim is specious when taken on its own, but suppose that the argument is that through their tortious conduct, namely repeatedly assaulting and harassing the plaintiff, they caused the defendant to attempt to escape? Assuming his claims to be true, would this not mean that he did not voluntarily assume the risk of escape and therefore the defendants should be liable?
1.13.2008 4:59pm
Skyler (mail) (www):
1. The lawyer is right that there is an obligation to ensure that this escape prone inmate does not escape.

2. The problem is that the injured party is not the inmate but the people of the State. The jailors should be required to refund a portion of their paychecks back to the people of the state.

3. Spell check is for sissies.
1.13.2008 5:14pm
common sense (www):
Yeah, but untied isn't misspelled, so no automatic spell check would catch it.
1.13.2008 5:15pm
tvk:
Orin,

I agree this suit has zero chance of success, and I agree that it is funny. But I wouldn't write it off the same way you do. The common law of occupier's liability had the lowest duty of care to trespassers, but not no duty of care to trespassers.
1.13.2008 5:36pm
Alan Gunn (mail):
Why not? California has held a school district liable for injuries suffered by a hooky-playing student in a traffic accident, on the grounds that if they'd used reasonable care to keep the kid imprisoned, he wouldn't have been hurt. The Ninth Circuit has held the Federal government liable to a thief who fell while stealing wire from power lines which, to the thief's surprise, were live. Nothing about this claim seems particularly surprising.
1.13.2008 5:36pm
NI:
As an academic matter, is there a point at which mistreatment becomes so severe that escape is a right? Suppose, for example, that guards were deliberately placing a vulnerable inmate where they knew he would be repeatedly raped, and the administration turned a deaf ear to any pleas from the inmate. Does the law really expect him to just serve out his sentence under those circumstances? If so, then I agree with Dickens that the law is an ass.
1.13.2008 5:43pm
OrinKerr:
tvk,

What cases or authorities hold that a prison inmate is a trespasser?
1.13.2008 5:53pm
OrinKerr:
NI,

On the criminal law side, there is indeed authority for a necessity defense if a prison inmate escapes and is charged with the escape, and he can show that he was threatened with rape or murder and that escaping was the only plausible way of avoiding that.
1.13.2008 5:55pm
NickM (mail) (www):
When an inmate hurts himself severly while trying to escape, it's a good thing.

Nick
1.13.2008 6:05pm
Sean M:
NI,

Adding on what to Orin said, the leading case in the federal jurisdiction is U.S. v. Bailey, 444 U.S. 394 (1980). While the Court was willing to accept that necessity may be a defense to the actual escape, the problem that defendants have is that they are required to show that they only absented themselves from custody long enough to avoid the coercive conditions. In most cases, defendants will remain on the lam for a while, which would preclude presenting the necessity defense to the jury.

(How's that for mileage out of my first year Crim Law class I just finished?)
1.13.2008 6:05pm
WHOI Jacket:
"Prisoner's got a right to escape, don't he?"

- Ned Land
1.13.2008 6:13pm
Bill Poser (mail) (www):

In most cases, defendants will remain on the lam for a while, which would preclude presenting the necessity defense to the jury.

If I were a prisoner being abused, I would think carefully about what to do once I escaped. It wouldn't do turn myself in only to be returned to the same jail in the same conditions. I'd want to get to another jurisdiction or find authorities, perhaps federal, who would offer a reasonable chance of protection. Expecting a prisoner who escapes in order to avoid abuse to turn himself in to the next police officer he encounters is unreasonable.
1.13.2008 6:30pm
Sean M:
You would think so, Bill Poser, but the Supreme Court has disagreed. In fact, this very concern was present in Bailey, but it did not seem to matter.
1.13.2008 6:35pm
tvk:
Orin,

Of course a prison inmate is not a trespasser. My point, however, is that just because one party breaks their legal obligations in a rather severe way does not excuse another party from completely disregarding safety. It is entirely foreseeable that someone will try and escape a prison, just as it is foreseeable that there will be trespassers, even though both the escaping inmate and the trespasser is doing something that is legally prohibited.

The cuteness of the story lies entirely in the point that the prisoner is trying to sue for harm incurred during escaping when, of course, he is not supposed to be escaping. My point is that there are times when the law allows this precise type of disingenuous suit.
1.13.2008 6:44pm
SupremacyClaus (mail) (www):
The Eighth Claim points to a duty. A duty comes from foreseeability. Repeated escapes increase foreseeability. Jury question. Speaking of property doctrines, a forty foot wall may be an attractive nuisance to a habitual escaper.

The Eighth claim points to a violation of procedure. If some policy mandated checks every 15 minutes, then negligence per se applies.

This claim is ridiculous, and a national disgrace, but no more than most tort claims.

The defense will come from uncertain, speculative, policy argument. Is escape a crime? If it is, then a civil settlement should not reward a crime.

If the defense will cost more than a small settlement and attorney fees, the prison may settle. Then, the plaintiff land pirate has done well. That is all that counts.
1.13.2008 7:00pm
OrinKerr:
TVK writes:
My point, however, is that just because one party breaks their legal obligations in a rather severe way does not excuse another party from completely disregarding safety. It is entirely foreseeable that someone will try and escape a prison, just as it is foreseeable that there will be trespassers, even though both the escaping inmate and the trespasser is doing something that is legally prohibited.
Stated at that level of generality, I absolutely agree.
The cuteness of the story lies entirely in the point that the prisoner is trying to sue for harm incurred during escaping when, of course, he is not supposed to be escaping. My point is that there are times when the law allows this precise type of disingenuous suit.
I suppose I disagree with you as to where the 'cuteness' entirely lies. What makes the story 'cute,' at least to me, is that his claim is that he was severely injured because the prison made it too easy to escape -- and yet he was severely injured by one of the things that was keeping him from escaping. The prison walls are high to prevent escape; the point of them is to deter escape because a prisoner will think, "I can't try to break out of here because I'll be severely injured by the fall." I think it's pretty rich for a prisoner to ignore that deterrent, become severely injured, and then say after nearly killing himself, that it's the prison's fault because there was insufficient deterrence to stop him from escaping. I'm not aware of any analogous cases to that, although this isn't my area.
1.13.2008 7:01pm
alias:
That razor wire on the fence is just an attractive nuisance, as well. What were they thinking? Some poor escaping inmate might try to escape and cut himself on the wire.
1.13.2008 7:13pm
alias:
and now I see that Prof. Kerr has already made my point, though much more articulately.
1.13.2008 7:14pm
David Chesler (mail) (www):
(drafted by an attorney, not the inmate)

Isn't that always the case? Or are you making it explicit that the prison did have representation?

Reports of cases will contain phrasing that a party argued something, when it's clear that it was that party's attorney who actually said it. It can be a little jarring until one learns not to take "said" or "argued" literally.
1.13.2008 7:28pm
David Chesler (mail) (www):
s/prison/prisoner/
1.13.2008 7:28pm
Mike G in Corvallis (mail):
Legal claim (drafted by an attorney, not the inmate):

Is the crime of "barratry" on the books in Colorado? I understand it is in some states, including California. Once can hope ...
1.13.2008 7:32pm
Sean M:
David, I think Orin was making the point that an actual attorney wrote this. There are many hair-brained pro se prisoner law suits out there, but to actually get an attorney to draft this complaint is what makes it noteworthy.
1.13.2008 7:44pm
alias:
Reports of cases will contain phrasing that a party argued something, when it's clear that it was that party's attorney who actually said it. It can be a little jarring until one learns not to take "said" or "argued" literally

Mr. Chesler, the link in the post is to a copy of the actual complaint, and as Sean M says, I think Prof. Kerr was making it clear that, unlike the many creative but harebrained bad pro se litigation suits out there, this one (which seems equally harebrained) was filed by a real lawyer.
1.13.2008 7:55pm
CrazyTrain (mail):
Isn't that always the case?

No, it's not always the case at all. The amount of frivolous pro se prisoner lawsuts in federal courts (and possibly state courts as well -- I just don't know) is a real problem that taxes the Courts' resources -- as is the number of frivolous non-prisoner pro se lawsuits (filed often by people who need real mental help). There would be nothing surprising about this lawsuit if it were filed pro se.
1.13.2008 8:12pm
CrazyTrain (mail):
This claim is ridiculous, and a national disgrace

Hyperbolic much? Ridiculous, yes. National disgrace?!?! Of all the things . . .
1.13.2008 8:14pm
OrinKerr:
What SeanM said -- this kind of claim would be very common without an attorney. I think every former federal law clerk has some favorite pro se complaints they saw during their clerkship. (My favorite in my case was a prisoner who sued saying that his rights to practice his religion were violated by a prison rule requiring him to get a haircut. According to him, he needed to have long hair to practice his religion, which was some weird quasi-made up thing he read about in a book. In a deposition, he was asked, "have you ever heard of anyone in your religion having long hair?" His response, "well, no."))
1.13.2008 8:27pm
Peter Wimsey:
The petitioner's primary claim seems to be that he was beaten (assaulted, beaten, tased, and kicked)by guards for no good reason. I assume - I hope - that this is the claim the lawyer is actually interested in pursuing and the falling claim was added at the insistence of the prisoner.

It occurs to me that he should also sue whoever manufactured the sheets and mattress covers, since although the jail may have been poorly designed, its ventilation shaft did in fact convey the petitioner safely to the roof; his injuries were sustained when he tried to use the sheets, etc. to lower himself from the roof to the ground.
1.13.2008 8:34pm
Bill Poser (mail) (www):

It occurs to me that he should also sue whoever manufactured the sheets and mattress covers, since although the jail may have been poorly designed, its ventilation shaft did in fact convey the petitioner safely to the roof; his injuries were sustained when he tried to use the sheets, etc. to lower himself from the roof to the ground.

Wait a sec. We don't know that it was his "rope" that failed. Maybe he should sue the school system for its failure to provide mountaineering training, or McDonalds for his poor physical condition. :)
1.13.2008 10:03pm
Bill Poser (mail) (www):

You would think so, Bill Poser, but the Supreme Court has disagreed. In fact, this very concern was present in Bailey, but it did not seem to matter.


I'm not sure that Bailey is on point. First, in Bailey the escapees stayed out for one to three months, which is a fairly long time. Second, the evidence that they produced of their efforts to negotiate surrender was very weak, consisting only of their own testimony, with no corroboration from, e.g., FBI agents they spoke with, and even on their own testimony, it sounds like they did not make much of an effort. Third, the conditions in the DC jail do not seem to have presented as immediate a threat as those in the instant case.

It seems to me that Bailey would allow for a different outcome if, say, the defendant escaped from the Deliverance jail after beatings and threats by Sheriff Hulk, got himself to the large town 50 miles away, and within a few days got a lawyer to negotiate his surrender, and presented evidence of this at trial. Is there case law on situations like this?
1.13.2008 10:21pm
Waldensian (mail):

The Ninth Circuit has held the Federal government liable to a thief who fell while stealing wire from power lines which, to the thief's surprise, were live.

I've got to have a cite for this. We like to one-up each other with Ninth Circuit horror stories around here.
1.13.2008 10:48pm
Anderson (mail):
See, it's this kind of thing that gives frivolous lawsuits a bad name ....
1.13.2008 10:48pm
tvk:
Orin,

I see your point, and you are correct that the complaint as the attorney has drafted it raises the contradiction you point out. Would it be more persuasive to you if the complaint had been drafted in a Tennessee v. Garner style claim, that the prison walls were too high and the likelihood of death or severe injury is disproportionate to the social interest in keeping prisoners in prison? Obviously I am not talking a 4th amendment claim but a tort claim, but with the same type of rationale (and of course accepting the Tennessee v. Garner rationale, a case which I think was wrongly decided myself).
1.13.2008 11:28pm
ReaderY:
Perhaps the warden should give the inmate exactly what he wants and promise to shoot the inmate if he attempts to escape again, thus preventing from injuring himself.
1.14.2008 1:14am
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1.14.2008 5:33am
Huck (mail):
I think it should be mentioned that the German law sees it different.

A prisoner may escape. He may stay in hiding for months or years. There is no additional penalty for doing so. Of course, if he is caught, he will be brought back to serve the rest of his original time. Also of course, if he commits crimes in the way, like threatening a guard with a soap made pistol or stealing a rope, that will be punished.

But it's the governments duty to keep the prisoner in prison. It's not the prisoner's duty to stay there.

Escaping is somehow seen as the exercising of a natural right.

If you can.
1.14.2008 6:24am
markm (mail):
ReaderY: That's what I think, too. If the prison had proper machine gun towers sweeping the top of the walls, they'd have shot him dead before he fell...
1.14.2008 8:52am
Happyshooter:
In Michigan, prisoners have a cause of action against the state for being allowed to kill themselves in a cell--- only if the cell is one designated as anti-suicide (or drunk tank/detox).

The cause arises even if the prisoner is not noted as being prone to suicide.

The best example is the Mich Supreme Court case of Johnson v Detroit, 579 N.W.2d 895. Man is caught stealing, and is placed in a cell with no indication that he is acting up or may commit suidide.

The cell happens to be the squad's suicide-deterrent cell, but the metal mesh is torn. The guy uses his sweatshirt to hang himself.

The SC rules that merely being placed in the suicide-deterrent cell and being able to commit suicide is a tort under the public building exception to tort immunity.

Compare to the Mich case of Hickey v. Zezulka, 439 Mich. 408. A drunk man was arrested by university police (public Unis in Mich have actual police) and was placed in the temp holding cell. He hung himself from heater bolts and the cell was NOT designed for anti-suicide because it was a temp cell. No liability for the death because it was not designated as an anti-suicide or detox cell.
1.14.2008 9:21am
Struthius:
What fhasdg said.
1.14.2008 11:12am
Charlie (Colorado) (mail):
Happens I grew up in Pueblo COuntry. I wouldn't doubt most any tale of malfeasance, idiocy, or cupidity on the part of Pueblo police and sheriff's officers.
1.14.2008 11:45am
A Law Unto Himself:
Perhaps the warden should give the inmate exactly what he wants and promise to shoot the inmate if he attempts to escape again, thus preventing from injuring himself.


I know it's OT, but for some reason this comment reminds me of the Food and Drug Administration's decision not to approve a drug for an (until that time) untreatable fatal illness due to concerns about safety...
1.14.2008 4:44pm