2d Circuit reinstates rape victim's award against Erie County

One of the most contentious issues in tort liability of public entities under 42 USC 1983  arises from the Supreme Court’s error in refusing to recognize vicarious liability of municipalities for rights violations by employees.  A plaintiff must prove directly an intentional tort - such as a policy level decision.  Key to this is notice of the risk - which must be knowingly ignored. “Deliberate indifference” is the key word.

In Cash v. Gallivan the U.S. Court of Appeals for the Second Circuit yesterday reinstated a jury verdict awarding $500,000 to a woman who was raped by a corrections officer at the Erie County jail.

The majority opinion by Judge Reena Raggi, joined by District Judge Jed Rakoff (sitting by designation), ruled that a prior incident of alleged sexual impropriety at the jail, coupled with a general awareness of sexual assaults in jails, was sufficient to put the county on notice.

Chief Judge Dennis Jacobs, who has grown very hostile to tort claims dissented.  The ruling, he declared with characteristic hyperbole, would be read to "impose strict liability on municipalities and policymakers for any incidents that arise in a prison."

Cash arose from a 2002 incident at the Erie County Holding Center, where Vikki Cash, who was being held in pretrial confinement, was raped by sheriff's deputy, Marchon Hamilton. Mr. Hamilton was charged with first-degree rape and pleaded guilty to third-degree rape.