Prison counselor makes highest hazard pay, gets raped & sues. State claims occ hazard

Great Debates
1

Per the story laid out below, does the state have any legal traction in claiming that if you are going to accept the highest levels of hazard pay in a hazardous job, that you have no right to sue the state for preventing harm to you if the anticipated hazard risk for which you are being compensated, actually occurs?
State files to dismiss suit by counselor abducted in prison—

Back stories

Hostage Victim’s Lawyers File Lawsuit Against Governor Minner, DOC
Hostage Victim Speaks Out Against Prison System

What’s Minner’s lofty legal principle? ‘These things happen’

2

Did I miss where it says she knew the hazardous duty could include kidnap and rape? Like, did she sign something that acknowledged those possibilities?

3

Per your question I think that’s sort of the hub of the State’s apparent position in this thing, in that even if they don’t specify a laundry list of all the terrible things that can happen to you in a hazardous situation where you are receiving the highest levels of hazard pay (per the story), you are (in effect) agreeing to the risk inherent in a high hazard position where almost anything of a violent nature (ie being attacked, killed etc) can conceivably happen.

4

Just because the employer made someone sign a contract saying a situation was unsafe, it cannot defray their responsibility.

Look at it in any other general terms, an employer knows that a particular situation, task, or substance is harmful, and makes it known to the employee.
The employee offers higher pay to reflect this aspect of risk, is the employer off the hook ?

Nope, not a chance, the employer knew of the inherant danger, this was acknowledged in the pay.

What this means is that the employer had a legal responsibility to control the risk, an absolute responsibility, and they should have known it, higher pay does nothing to reduce risk, in fact it actually entices people to put themselves into harms way.

The employer could have provided alarms, could have provided constant third party supervision, either by cameras, or another person actually in the room.

The employer could have ensured that anyone considered vulnerable should not be placed alone with the prisoner, the employer should have carried out some risk assessment to determine just how great a risk the rapist was, and this scum was already in prison for rape and abduction, so its reasonable to say there is a pretty obvious warning.

Employers here have acknowledged that females are at particular risk, so the question is, was there such an emergency that is so grave and utterley overriding that it was absolutely necessary to put this person at such high risk, and were there reasonable measures that could have been taken to prevent it ?

The state will lose unless there is some specific legislation which forbids lawsuits or provides immunity, I’d doubt that this is the case.

5

To turn your question around–is it even conceivable that she never considered that she’d be in regular contact with kidnappers and rapists? Of course she did. I’m sure her case hinges more on whether commonsense security precautions were taken, a whole different argument.

6

Speaking as a woman who once held a job that put me into contact with convicted felons on a daily basis (although no, I did not work in a prison) you have to be pretty effing stupid to NOT realize that being in contact with such people carries certain inherent risks.

It does not absolve the employer of the responsibility of taking reasonable precautions, however, not all things are in the control of the employer

You can control risk, you can not eliminate it

It is also seen as compensation for the inherently higher risk.

Is there proof that the employer did NOT provide these things?

Such precautions are wise with violent offenders, but even those precautions can not prevent all violence. People who play nice and follow the rules are not the ones found in prison. I mean, really - so you’re watching the bad guy - this is going to prevent violence how? Do you think someone serving hard time is going to care if he’s watched if the impulse to violence hits?

So what you’re saying is that women should never be permitted to work in the prison system, since they’re inherently at greater risk than a man?

Believe or not, sometimes the courts acknowledge that crap happens.

The question is - did the employer take reasonable precautions?

A second question - did the victim follow security/safety procedures? Because, harsh as it sounds, if she did not then yes, she does bear a measure of responsibility for her predicament. That doesn’t make the abduction and rape OK - certainly not - but if she chose to increase her risk over the levels her employer deemed acceptable that is not the employer’s fault.

7

Well we will see as the case comes to court.

Not all prisoners present an obvious and clear risk to women, in fact its a fairly small minority, but this particular case is really a no brainer, his main offence is a huge indicator.

We do risk assessments on prisoners all the time, I have seen them denied work in kitchens due to the presence of large knives, I have seen others who cannot be held on the same cell as a person of another race, and I have seen those who must never be left with women.

It does not stop women working in jails here, why should it ?

I’d love to see how you think I stated this, what I did say was that this individual should have been assessed, just as it is usual practice anyway.

There are those who cannot be allowed out of their cells unless there are at least two escorting officers plus a dog with its handler, they were risk assessed.

Our education staff are mostly women, but, they have personal alarms, there are plenty of alarm pushes, and there are discipline officers detailed to keep their eye on things all day.

You will also see that this particular jail has been sued before with cites in court about inadequate staffing levels.

In the UK what usually happens in a serious incident in prison is that an inquiry is held, and any attempts to sue must wait until the findings of that inquiry, obvious really since the basis for the compensation claim may well rest upon the evidence of the inquiry.

This could be the case here, the claim might have been filed to keep within time limitations, but then will be held over until reports are complete.

It can be a very lengthy process as the crime itself will also need to pass through the criminal courts to deal with the rapists offences.

8

Um…

Which has been construed in Hanz v. Louisiana to also prohibit suits against states by citizens of that state.

In other words, the general principle is that a state may not be sued. Most states have legislation waiving their immunity in specific circumstances, but the right questions is not, “Does the law forbid lawsuits?” but rather “Does the law specifically PERMIT the lawsuit?”

9

Many people here are arguing that the woman should have known that her working conditions were dangerous and acted accordingly.

Why isn’t anyong using the same argument against the prison? They are just as responsible for knowing the working conditions of the people they employ, and they are (or should be, if they aren’t) legally responsible to make sure the conditions are safe.

10

They could probably do that if it weren’t for all them felons in there…

11

I’ve just been reading the internal inquiry report, and it seems this person was intent on murder but his selected victim was not available, so this counsellor was lucky to escape with her life.

Here it is,

When I read the list of action taken since the incident, the various precautions that have been added are worrying, they are worrying because these are very obvious things, such as ensuring certain doors are locked, that staff carry radios, that correctional staff are assigned duty in the counsellors area on a shift basis, they are also to be escorted at all times by correctional staff whenever they are in transit within the prison.

What is extremely worrying here is that a push button intercom was not working, and there was no repair ticket in for this item, and it had not been working for some time, along with an electronic lock door which had been chocked open for the past two years.

Bear in mind that this inmate was regarded as high risk already, such inmates in the UK would be rub down searched whenever they leave their cell, they would also be searched whenever they leave any place of work or study.

In the UK, when high risk inmates are moved, there is a custody book that stays with the person with whom the inmate is placed, and transferred to the next person in custody when that changes.

Basicly you have to sign for them.

The upshot of this, is that the inmate can never ever be out of sight of staff at any time, unlike this particular scrote, and this inmate dissappearing and no-one actually noticing is also a worry.

The list of remedies are very much resource based issues, radios, staff, but some procedural weaknesses are apparent too, such as the assessment criteria for inmates which has been extended.

The counsellors behave in a very similar manner to the ones where I work, in that they tend to escort inmates from one location to another, without radios, and without proper correctional officers escorting.

This is due to counsellors having to get through a certain amount of casework every day and not being able to obtain escorting staff to move the prisoner in reasonable time.

I personally have refused to escort prisoners around, despite it being very inconvenient and it not being in my contract.

It often means that prisoners will miss appointments with probation, sentence plan, drugs workers and the like, but in the end, this case illustrates exactly why I do not take upon myself these duties for which I have not been trained.

I know that many jails in the US are not directly run by the state concerned, but instead are private enterprises, those private enterprise jails in the UK are often run by the same companies, and they tend to deal with prisoners by appeasing them, withhigher pay, or allow ownership of more possessions, and there are fewer staff and a greater reliance on physical security such as electrically operated gates.

This means that assessment of inmates, and collection of staff observations are fewer, and the personal problems of prisoners, such as this particular one had, can get submerged as the staff have plenty more pressing matters to deal with, you really cannot skimp on having numbers of staff.

If this jail is privately run, despite Brickers’s comment, then the complaint may not be made against the state, and the victim may well be able to sue, it does look like this complaint has been addressed in several differant directions, from the state Governor on down the line, probably in the hope that liability will stick somewhere.

In any situation such as this, there are things that should have been done that were not, but, the failure of acounting for prisoners whereabouts, poor communications, and lack of proper escorting procedures seem to point toward money and staffing levels, and an underlying weakness in management systems.

In the UK, prisons used to have Crown Immunity, but this has been gone for a decade or more, I’m surprised that in litigious America there is still such a thing, we are usually behind by miles on this stuff.

12

How the hell did you find that?

13

Well in reading the whole thread I would say that the prison took certain actions that were very irresponsible, and the incident probably would not have happened if protocal had been followed.

But, the thing is how often do we see successful lawsuits against say, a police department if an officer is killed in the line of duty and some procedural mistake was made (like the gun the officer had been issued that morning was faulty and failed to fire) or for that matter against the armed forces? I was in the Army and I know of not a single case where someone successfully sued the Army, DoD, et cetera because of a family member being killed in the line of duty.

Of course I was wholly ignorant of the Army’s legal matters except for knowing the rules and how they were supposed to be followed. So hard to say.

14

Also in response to an earlier post no, state governments nor the federal government can be sued for anything. For some time this meant the States were practically immune from all forms of lawsuit (save those levied against them by other States) but some USSC decisions (no cite that I can remember) held it valid for someone to sue a particular subdivision of a state (example, Department of Corrections.)

Look at a lot of famous cases, Gideon v. Wainright is no named because Wainright was the Director of the Florida Department of Corrections (or Prisons, or something.)

Then Brown v. Board of Education (Topeka) not Brown v. Kansas, or Gideon v. Florida.

15

The legal matter will probably be settled as legal matters generally are, that is, without much reference to what is moral and right in this instance, but rather what the law says.

I found the Governor’s comment profoundly callous. Paraphrasing: “Hey, it’s OK, she’s just a little person, she should have EXPECTED to get raped. Where do these stupid little unimportant bitches get off suing our big important state government? Doesn’t she know her suffering means next to nothing?”

If I were a professional Pubbie strategist in Delaware, I’d have Minner dead in my sights by now. Recall effort … why not? Even barring a recall, she’ll definitely hear those words a lot in her next election cycle. Stupid bitch.

16

Delaware’s constitution provides for the recall of the Governor? That’s extremely rare in America.

17

Well. that would definitely bar a recall, if there’s no provision for such, or if the requirements are more onerous than California’s, which I understand is the case in those states that do have recall statutes. Point is, that comment is a political stinker. What lobby is it going to appeal to, the rapist lobby?

18

A critical fact from the report cited above is that the counselor had completed a normal group counseling session and was walking alone in a hallway in the *administrative offices * when a prisoner jumped out of a bathroom with a weapon and grabbed her.

In other words, she was not meeting with a prisoner as part of her duties. She was in a place where she should have been safe and was attacked by a prisoner who had escaped confinement and armed himself. It’s hard to believe that she consented to that as part of an employment contract, and it’s hard to believe that the prison administration wasn’t negligent in allowing it to occur. When a prisoner escapes, somebody screwed up. I hope she wins her suit.

19

Or we’re dealing with a highly motivated and skilled felon. But still in this case it does look like a major foul-up on the system’s part.

Doors chocked open… and it had gone on for years???
As for lawsuits against the state or its subdivisions: generally, you have a time limit to file your notice of intent to seek legal action. Many states do allow lawsuits against public agencies, but limit the liability to a fixed amount (e.g. $75K here).
BTW Minner stood for reelection (succesfully) on November 2; this was an issue in the campaign.

20

I concur. Security is Job One where I work. No inmate goes out without being vetted by security, even if they’re a pulseless non-breather on whom active CPR is being performed. They’re strip-searched and put in arm and leg manacles before being loaded onto the ambulance.

Security people have lost their jobs over breaches at my institution. And I can’t imagine that my warden would say that being attacked by an inmate who breached security is just a normal risk of the job.

Not too long ago, one of my people did get punched in the face by an inmate. Not all risks can be eliminated. But 3 seconds after that happened, 3 security officers were actively intervening in the situation.

QtM, Maximum Security Physician!