Seventh Circuit Recognizes Reckless Driving by Police Can Violate Fourteenth Amendment and Reinstates Failure-to-Train Monell Claim

May 21, 2021

by: Colin E. Flora

     Today, we focus primarily on an opinion handed down last week by the Seventh Circuit in Flores v. City of South Bend, which provided tremendous insight into the question of when may a police department be held liable for the utterly reckless conduct of an officer who causes an automobile wreck by unnecessarily driving at break-neck speeds down urban streets. But, before we take a deep dive into Flores, because it has been a bit since our last post, we pause to acknowledge some other recent decisions of note from both Indiana state and federal courts.   

I. Other Notable Recent Decisions

     Before we dive into this week’s primary case, we pause to acknowledge some notable decisions that have been handed down since our last post. First up is Logansport/Cass County Airport Authority v. Kochenower. Confronted by a split in authority, the Indiana Court of Appeals concluded “that, to successfully allege a meritorious claim or defense pursuant to Rule 60(B), a party seeking relief from a default judgment must state a factual basis for his purported meritorious claim or defense, but at this initial stage such a showing is not governed by the rules of evidence.”

     A second notable decision, Arrendale v. American Imaging & MRI, LLC, built on the Indiana Supreme Court’s 1999 decision in Sword v. NKC Hospitals. Inc. As we have discussedtwiceSword established a rebuttable presumption that the medical personnel who attend to a patient in the hospital setting, even if acting as independent contractors, are the apparent agents of the hospital unless specific steps have been taken to inform the patient that the personnel are not employees of the hospital. In Arrendale, the Indiana Court of Appeals was asked whether the principles announced in Sword are confined to the hospital setting. Given that Sword is premised on Restatement (Second) of Torts § 429, which is not even confined to the healthcare context, it should come as no surprise that the court of appeals concluded the principles of Sword are not so confined: “In short, just as it is reasonable for a hospital patient to believe that the doctors providing care in a hospital are employees or agents of the hospital, it is reasonable for a patient of a diagnostic imaging center to believe that the radiologists interpreting images for the center are employees or agents of the center, unless the center informs the patient to the contrary. We therefore hold Sword applies to diagnostic imaging centers.”

     In a similar vein to ArrendaleLake Imaging, LLC v. Franciscan Alliance, Inc. touched on Sword. Although the primary focus of the decision was on the question of whether the Indiana Medical Malpractice Act applies to a claim for indemnification between two healthcare providers, in defending the conclusion that not only does the Act apply to the indemnification action but in doing so left only two weeks to assert a claim for indemnification, the court observed: 

But if [the hospital] did not want to be placed in that position [of having only two weeks to file], it could have protected itself.

In Sword v. NKC Hospitals, Inc., our Supreme Court held a hospital generally can avoid vicarious liability for negligence of an independent contractor by providing meaningful written notice to the patient, acknowledged at the time of admission, “that it is not the provider of care and that the care is provided by a physician who is an independent contractor and not subject to the control and supervision of the hospital.” Here, it is undisputed [the hospital] did not give [ ] notice that [an independent contractor] would be providing radiology services. If it had, and the [plaintiffs] later sought to hold it vicariously liable for negligence by [the contractor], [the hospital] would have had a defense under Sword. By failing to give the notice, [the hospital] gave up the benefit of the Sword defense and put itself in the position in which it found itself: facing vicarious liability for negligence by [the contractor] but with only two weeks to bring [the contractor] into the case. If that was not enough time for [the hospital] to “scour” the records of [the patient]’s treatment, it has only itself to blame.

That passage provides strong support for use of Sword and reminds that a healthcare provider has the burden to inform the patient that it is using contractors.

     As to the court’s conclusion on the scope of the Medical Malpractice Act, it merits note that it may well have applied the most expansive scope any Indiana court has yet found. It is slightly reminiscent of the Texas Supreme Court’s extremely expansive view taken in Texas West Oaks Hospital, LP v. Williams, which applied the Texas Medical Liability Act to a healthcare provider’s worker’s compensation claim. That said, the Indiana Supreme Court’s forthcoming decision in the certified question from the Seventh Circuit in Cutchin v. Robertson will likely place a more definitive stamp on whose claims are properly drawn within the Act.

     The hotly contested action in NCAA v. Finnerty provided a few important insights. First, the opinion stands as an important reminder of the deemed-denied provision of Indiana Appellate Rule 14(B)(1)(e), which dictates that a motion to certify an order for interlocutory appeal is deemed denied if not ruled upon or set for a hearing within thirty days of filing or, if a hearing was held, is not ruled upon within thirty days after the hearing. Second, a motion that merely parrots a prior motion—i.e. a repetitive motion—does not afford an opportunity to pursue the issue that should have been timely appealed following the ruling on the initial motion. Finally, in dicta, the majority appears to reject the apex-deposition doctrine.

     Progressive Southeastern Ins. Co. v. B&T Bulk LLC, in addition to a thorough analysis of the implications of Section 30 of the Motor Carrier Act and whether an MCS-90 endorsement applies to intrastate trucking accidents, provided a useful look at the scope of Indiana Appellate Rule 48’s permission to file supplemental authority:

As [the Indiana Court of Appeals] has explained, Appellate Rule 48 does not mean a party may present an argument that was available but not presented in their appellant’s brief simply by filing a notice of additional authority. This is because an issue not raised in an appellant’s brief may not be raised for the first time in a reply brief. Accordingly, Appellate Rule 48 does not allow “a party who failed to present an issue in his appellant’s brief to bypass the general rule that un-raised issues may not be presented for the first time in a reply brief by filing a citation to additional authority.” Instead, “where a party has properly presented an issue, he may supplement his brief by providing citations to additional authority to support the argument previously raised.”

     Turning to the Indiana Supreme Court, on certified question from the United States District Court for the Northern District of Indiana, in Branscomb v. Wal-Mart Stores E., L.P., the court ruled that a store manager who was not personally delegated control over a store’s premises may not be held personally liable for injuries to a person on the premises occasioned by a condition of the premises. For those wondering why anyone would even seek to hold a store manager liable, the answer is that it would otherwise serve as a basis for naming a defendant who could defeat diversity jurisdiction.

     Finally, we look to the Supreme Court of the United States for its opinion in BP P.L.C. v. Mayor of Baltimore. Avoiding much of the procedural complexity, for our purposes, the important takeaway is that an appeal authorized under 28 U.S.C. § 1447(d) permits the circuit court to review the district court’s entire remand order not just the aspects concerning 28 U.S.C. §§ 1442 & 1443.

II. Section 1983 Liability: Flores v. City of South Bend

     We now return to our primary focus, the Flores decision. Let’s begin with what happened to cause there to be a case. The case stemmed from the death of Erica Flores following a collision with a car operated by a South Bend police officer:

In the early hours of July 20, 2018, five South Bend officers . . . were assigned to an area in the northwest part of the city, which was considered to be a “hot spot.” Two of them . . . patrolled in an unmarked car that was not equipped with sirens or lights. One . . . drove a fully marked police vehicle. The remaining two officers . . . sat in an unmarked car that did have sirens and lights, though they were not in use. The two patrolling officers communicated through a tactical channel whenever they wanted assistance from the other three officers.

The events that led to Erica’s death began when, around 4:30 am, [two officers] radioed over the tactical channel that they had spotted a vehicle speeding in the patrol area and planned to stop it. The remaining three officers promptly acknowledged the report. None of the members of the [ ] team signaled at any point that the routine traffic stop qualified as an emergency. None of them requested assistance from any other officers outside their group, and none pursued the driver.

Enter Officer Gorny. After hearing the exchanges among the [ ] team over the tactical channel and knowing from those exchanges that no one was asking for external assistance, Gorny (then two miles away . . . ) roared through a residential neighborhood at 78 miles per hour, in disregard of the 30 mile-per-hour speed limit. Gorny made infrequent use of his lights or sirens. Still in the residential area, he then turned onto Western Avenue and accelerated up to 98 miles per hour while intermittently activating and deactivating his lights and sirens. Gorny reached the intersection of Kaley and Western Avenues with an obstructed view of Kaley Avenue. Disregarding the red light, Gorny sped through the intersection and crashed into Erica Flores’s car, which was proceeding lawfully on a green light, killing her.

     Erica’s estate brought both state-law tort claims and federal claims arising under 42 U.S.C. § 1983 to vindicate the deprivation of her constitutional rights by a government actor—i.e. Officer Gorny. The district court, finding that the complaint did not adequately state claims under federal law and, in the absence of federal claims, denying to continue to exercise supplemental jurisdiction over her state-law claims, dismissed the case. On appeal, the Seventh Circuit was confronted with two key questions: (1) whether Officer Gorny’s conduct could be found to be sufficiently reckless so as to amount to “subjective knowledge of an unjustifiable risk to human life and conscious disregard of that risk”; and (2) whether the City of South Bend could be held liable under a Monell theory of liability under a failure-to-train theory. Operating under the standard of Federal Rule of Civil Procedure 12(b)(6), the unanimous Seventh Circuit answered both questions in the affirmative.

     As to the first question, following decisions from the Third and Tenth Circuits, the court observed, “An officer who is not responding to an emergency can act so recklessly that a trier of fact would be entitled to find subjective knowledge of an unjustifiable risk to human life and conscious disregard of that risk.” 

Here, Gorny’s reckless conduct, unjustified by any emergency or even an order to assist in a routine traffic stop that five officers had under control, allows the inference that he subjectively knew about the risk he created and consciously disregarded it. . . . With no justification, Gorny chose to race through a residential area with a posted speed limit of 30 miles per hour at rates of speed between 78 and 98 miles per hour, two-to-three times the limit. It was too late to control the car when he reached the intersection of Kaley Avenue and charged through, despite the obstructed view. The result, as we have said, was that Flores, innocently driving in accordance with the traffic signals, was hit and killed. A jury could find, based on these allegations, that he displayed criminal recklessness (or deliberate indifference) to the known risk.

. . . We have cautioned against “reading [] classifications too rigidly, noting that ‘[d]eliberate indifference, in fact, is merely the manifestation in certain situations of a more general inquiry, which is whether the government conduct at issue shocks the conscience.’” A jury could find that Gorny’s actions meet this standard.

     As important as that portion of the court’s opinion is in holding reckless governmental actors responsible for the mayhem they occasion, the second key issue may be even more important in shaping the landscape of Section 1983 jurisprudence. Unlike matters of tort law in which the doctrine of respondeat superior may impute liability to an employer, claims for constitutional violations under Section 1983 do not lend themselves to that doctrine. Nevertheless, as established by Monell v. Department of Social Services of City of New York, there are circumstances in which the conduct of a governmental entity through its implementation policies or failures to adequately train its employees to avoid harm may be sufficient to directly impart liability.

     Flores’s Estate made such a Monell argument against the City of South Bend for failure to properly train Officer Gorny. “[F]ailure-to-train liability is appropriate only when inadequate training ‘amounts to deliberate indifference to the rights of persons with whom the [employee] come into contact.’ In effect, by failing to train an employee whose conduct the municipality knows to be deliberately indifferent to the public, the municipality itself demonstrates deliberate indifference to that known risk.” Although liability is rarely found under that theory, it is not without precedent.  

     Confined to the allegations of the complaint under on appellate review, the court noted that the alleged facts were:

[T]hat the City failed to train Gorny not to drive recklessly, in the face of actual knowledge that both Gorny himself and South Bend police officers generally had a history of reckless speeding. It also asserts that the City has a de facto policy of encouraging such behavior. South Bend officers working the night shift, Flores contends, frequently drive above 50 miles per hour, well above posted limits. In addition, she alleges that on at least three occasions before Erica Flores’s death, Gorny operated his vehicle at high rates of speed (70 mph, 114 mph, and 60 mph). Yet, despite telling its officers to operate their vehicles only up to a maximum of 50 miles per hour, South Bend never reprimanded anyone for noncompliance with its policies, nor did it require additional training for those who disregarded its guidance.” “Flores’s complaint plausibly allege[d] that the City acted with deliberate indifference by failing to address the known recklessness of its police officers as a group and Gorny in particular. Looking at Gorny first, the complaint asserts that on at least three prior occasions, Gorny drove in the dark of night at extreme speeds (from 60 to 114 mph), well above the posted limits of 30 miles per hour, and even above the alleged 50 mile-per-hour policy limit. The City knew that its officers routinely drove over 50 miles per hour, but it took no steps to prevent this behavior—no training, no discipline, no reprimands.

A municipality can be held liable under a theory of failure to train if it has actual knowledge of a pattern of criminally reckless conduct and there is an obvious need to provide training to avert harm, even if the prior acts have yet to result in tragedy. The City urges us to dismiss Flores’s claim because (fortunately) Gorny never killed anyone before he took Erica Flores’s life. But this is not a “one-free-bite” situation. The law does not require the death or maiming of multiple victims before a city must institute proper training. Driving with deliberate indifference to the consequences of one’s action—in effect, turning oneself into a speeding bullet—can reach the level of criminal recklessness before the worst happens. Flores’s allegations are enough to survive a motion to dismiss.

     While the decision was unanimous, Judge Brennan authored a concurring opinion focusing on this second key issue. Judge Brennan sought to emphasize that such liability should remain rare. In his own words, his concurrence was just “so courts and litigants in the future recall the intricacies of Monell jurisprudence and do not misread precedent in this area.”

     Regardless of whether Judge Brennan is correct that such Monell liability for failure-to-train should be the rare exception, there is no mistaking that Flores stands as an important vindication for the constitutional rights of those harmed by truly reckless and egregious conduct of government actors.

     Join us again next time for further discussion of developments in the law.

Sources

*Disclaimer: The author is licensed to practice in the state of Indiana. The information contained above is provided for informational purposes only and should not be construed as legal advice on any subject matter. Laws vary by state and region. Furthermore, the law is constantly changing. Thus, the information above may no longer be accurate at this time. No reader of this content, client or otherwise, should act or refrain from acting on the basis of any content included herein without seeking appropriate legal or other professional advice on the particular facts and circumstances at issue.

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