Crawford v. State, Division of Parole & Community Services

Wright, J.,

dissenting. As a former trial judge I am well aware of the difficult and facially unpopular executive decision to set up a “halfway house” plan for long-term prisoners. This re-entry system, however, is an absolute necessity for reducing the *191 high rate of recidivism common to this type of felon. Corrections experts believe that this methodology cuts the return to crime by half — surely a worthwhile goal. Today the majority has done grave damage to Ohio’s prisoner furlough program by perpetuating and enlarging our mistaken decision in Reynolds v. State (1984), 14 Ohio St. 3d 68 , 14 OBR 506, 471 N.E. 2d 776 . As night follows day, our next decision will hold the state liable for the criminal acts of someone who simply walks away from a halfway house or some other low security institution. Incredibly, we have made the state an insurer for every manner of criminal conduct. This cannot represent a valid public policy.

In Reynolds , this court erroneously held that a violation of the duty to confine furloughed prisoners pursuant to R.C. 2967.26 constituted negligence per se and consequently imposed liability on the state for injuries caused by the criminal acts of an escaped prisoner. The holding in Reynolds , sovereign immunity aside, incorrectly applied the legal doctrine of negligence per se, found a legal duty insupportable at law, and distorted the principle of proximate causation. In its efforts to follow Reynolds , the majority has dismissed without comment the trial court’s finding of no proximate cause and has substituted its view of the reasonableness of the state’s conduct for the view of the trial court under the misguided veil of negligence per se.

I

Negligence per se is a legal doctrine that presumes negligence where a statute that provides a standard of care to protect a class of persons from a particular risk is violated. But the presumption arises only when the violation results in the type of injury that the statute was designed to protect against. Prosser & Keeton, Law of Torts (5 Ed. 1984) 223-227, Section 36. Application of the doctrine to the mandate of R.C. 2967.26 ignores the essential requirements of the doctrine.

Negligence per se is appropriate only for statutes that impose a standard of care the breach of which may fairly be presumed to be negligent. For example, a traffic statute that forbids crossing a double yellow line is ripe for negligence per se analysis. R.C. 2967.26, however, imposes a duty without providing a standard of care. Prisoner escapes from the furlough program are quite likely to occur absent negligence in the state’s efforts to confine, while people are not likely to cross double yellow lines absent negligence. By applying negligence per se analysis to this statute, the majority would hold the state negligent for failing to head off all possible modes of escape that the active mind of an idle prisoner can conjure up. Such is not negligence per se; rather, it is strict liability. See, generally, Prosser & Keeton, supra.

II

Negligence per se also requires that the statute be intended to protect a class of persons from a particular risk. 8 Prosser & Keeton, supra, at 224-225. The majority has ignored these requirements by holding that the duty to confine imposed by R.C. 2967.26 is intended to protect individual members of the public from the criminal acts of prisoners. The majority’s reasoning has two fatal flaws: *192 the duty to confine pursuant to R.C. 2967.26 is owed only to the general public and not to individuals, and is not intended to protect the public from the criminal acts of furloughed prisoners.

Any duty the state owes under R.C. 2967.26 is. owed generally to the public and not specifically to any individual or class of individuals. Breach of such duties cannot form the basis of tort liability: “When a duty which the law imposes upon a public official is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, is generally a public and not an individual injury.” Sawicki v. Ottawa Hills (1988), 37 Ohio St. 3d 222 , 525 N.E. 2d 468 , paragraph two of the syllabus. Accord Commerce & Industry Ins. Co. v. Toledo (1989), 45 Ohio St. 3d 96 , 543 N.E. 2d 1188 . Numerous other jurisdictions have held that the duty to confine prisoners is owed only to the general public and, therefore, individual persons injured by escaped prisoners have no cause of action against the state for a negligent effort to confine. See, e.g., Massey v. Grant (W.D. Mich. 1988), 679 F. Supp. 711 (applying Michigan law); Cady v. State (App. 1981), 129 Ariz. 258 , 630 P. 2d 554 ; Williams v. State (1955), 308 N.Y. 548 , 127 N.E. 2d 545 . Caught up in the seriousness of the facts of this case, this court has erred today by ignoring this salutary principle of basic tort law.

Society incarcerates criminals for a variety of reasons. These include the primary considerations of punishment, deterrence, correction and rehabilitation, as well as the protection of society from dangerous persons. 9 The furlough program is designed for prisoners whom the state has determined to be trustworthy. R.C. 2967.26(A). See Reynolds, supra, at 70 , 14 OBR at 508, 471 N.E. 2d at 778 (the state has immunity from suit in deciding whether a prisoner is eligible for furlough and, by implication, whether the prisoner is trustworthy). Further, the furlough program utilizes unsupervised release of prisoners for work and other programs. Because the unsupervised release of trustworthy prisoners has nothing to do with the goal of protecting society from dangerous criminals, manifestly, the purpose behind the duty to confine furloughed prisoners is not to protect society, but rather to further the goal of rehabilitation by preparing these individuals to re-enter society. 10 This was a judgment call made by the General Assembly and the executive branch. Therefore, the R.C. 2967.26 duty to confine does not create a duty owed by the state to protect individual members of society from the criminal acts of furloughed prisoners.

Ill

In my view, the majority has seized upon and extended the mistaken notion that the state’s inability to confine a prisoner is the proximate cause of that escaped prisoner’s criminal conduct. Criminal behavior is the volitional act of the escapee. While alleged negligence in the confinement of a prisoner may be a “but-for” cause of subsequent harm caused by criminal *193 behavior, it is not the proximate cause of an escapee’s subsequent criminal activities. Collie v. Hutson (1985), 175 Ga. App. 672 , 334 S.E. 2d 13 ; Williams, supra; Moss v. Bowers (1939), 216 N.C. 546 , 5 S.E. 2d 826 . See, also, Marshall v. Winston (Va. 1990), 389 S.E. 2d 902 (acts of assaultive criminal behavior cannot reasonably be foreseen). 11

And yet, the majority has further distorted the law of proximate cause through its flawed application of negligence per se. Maynard escaped from the furlough program while attending an Alcoholics Anonymous (“A.A.”) meeting. R.C. 2967.26 provides specifically that furloughed prisoners may be released to attend educational and other programs. There can be no doubt that A.A. is educational as well as rehabilitative and thus an acceptable program pursuant to R.C. 2967.26. 12 Yet, the majority imposes liability merely because the Director of Rehabilitation and Correction had not specified A.A. as an acceptable program. This sort of circular reasoning escapes me.

Director approval of an R.C. 2967.26 program prior to releasing prisoners for the program is intended to ensure that the program is appropriate for furloughed prisoners and not to protect citizens from the criminal acts of escaped prisoners. Because the requirement of program approval has nothing to do with confinement, let alone the policy of protecting the public, its breach was neither the breach of a duty that was intended to protect the Crawfords from criminal activity nor the proximate cause of Charles Crawford’s death. However, under the majority's reasoning, whether the Director had approved A.A. as an acceptable program — which the Director surely could have — is pivotal in determining whether the state caused Mr. Crawford’s death. This result is absurd.

IV

In reality, the majority appears to *194 have substituted its assessment of the reasonableness of the state’s conduct for that of the trial court instead of applying negligence per se analysis. While claiming to base its decision on a statutory violation, the majority opinion is chock full of facts and analysis that have little to do with the statutory violation on which liability is supposedly based, but rather demonstrate the majority’s belief that the state unreasonably furloughed a dangerous criminal and then unreasonably supervised him. Consequently, under the guise of negligence per se, the majority has undertaken a de novo review of this case in derogation of this court’s traditional respect for the finder of fact.

Y

As stated, the real tragedy arising from the majority’s decision is the potential destruction of furlough programs. By making the state the guarantor of the conduct of furloughed prisoners, the majority has placed an intolerable financial burden on the state. It is difficult to conceive of how the state can afford to continue running furlough programs under the rule of law announced by this court today. I believe today’s decision cries out for a legislative response.

For these reasons, I dissent from the opinion of the majority.

*195 [[Image here]]

These elements of negligence per se analysis provide the requisite duty and scope of duty components required in traditional negligence analysis.

For example, compare society’s interests in weekend incarcerations of drank drivers to society’s interest in executing persons convicted of aggravated murder.

I note further the patent inconsistency in Reynolds, supra, where the state has immunity in choosing to furlough a particular prisoner and therefore in deciding whether a prisoner is trustworthy, then is held strictly liable under the guise of negligence per se for criminal acts the “trustworthy” prisoner commits on escape.

Louisiana, one of the few jurisdictions that imposes liability on the state for damage caused by the criminal acts of an escaped prisoner, imposes liability only under circumstances more suggestive of proximate cause. E.g., Brown v. American Druggists’ Ins. Co. (La. App. 1985), 476 So. 2d 881 , certiorari denied (1985), 479 So. 2d 365 , reconsideration denied (1986), 481 So. 2d 623 . In Brown , the state was held civilly liable for murder upon the theory of negligent confinement. The court specifically found proximate causation because the murder occurred within several hours of escape, within several miles of the place of confinement, while the escapees were seeking transportation in furtherance of escape. See, also, State v. Silva (1970), 86 Nev. 911 , 478 P. 2d 591 .

In stark contrast to Brown , this case involves a complete lack of temporal and geographical proximity between the allegedly negligent conduct and Maynard’s criminal acts and, thus, no proximate causation. Maynard was on the loose for over two months, and killed Mr. Crawford in the Toledo area after having escaped from Columbus.

The majority places great significance on the fact that the reintegration center had its own alcoholism program. However, this is irrelevant in the negligence per se analysis and, as the trial court astutely observed, A.A. had an advantage over the in-house program in that A.A. preserves anonymity in order to promote free discussion and honesty. The majority flippantly dismisses this argument on the grounds that Shoemaker was nagged into sending Maynard to A.A. by Maynard’s wife. While this may or may not be true, nevertheless, the interests of rehabilitation may well be served by providing a furloughed prisoner with the opportunity to discuss personal problems outside the presence of fellow prisoners.