NPH Quick Brief – Personal Liability for Officers working Paid Details

There was some local press coverage recently on a Worcester Superior Court decision issued last month, and as with most media reports these days, the story was picked up and reprinted in several online outlets and newspapers.  Because the press coverage, not surprisingly, only scratched the surface of the case, and because indemnification for lawsuits is often on the minds of police officers, we thought it best to comment on the court’s decision.  The issue in the case is not unusual – a patron allegedly injured in a bar fight sued the bar, the building owners and the police officer working the bar detail.  The part of the ruling that garnered attention was the fact that the court allowed a claim of negligence to proceed against the officer personally.

The question put to us by unions is whether a detail officer will be indemnified by the employer for any judgment that might enter against him or her.  The answer, as usual, is maybe.

First, it is important to note that the decision was not issued by an appellate court, and is not a new rule of law.  It was only a superior court ruling on a summary judgment motion, which is basically a motion to dismiss a civil complaint, filed after the conclusion of depositions, etc.  Such a motion will generally be denied if the case has material facts that are disputed by the parties; in which case, the court will let a jury decide. The plaintiff will eventually have to prove the facts, should the case go to trial.

Here, it appears that the City filed a motion to dismiss the claims against the officer based on the doctrine of sovereign immunity.  In Massachusetts, the tort claims act (GL c. 258) provides an exclusive remedy (against the municipality only) for certain alleged conduct, including negligence. This is the reason that individual officers are rarely sued personally for cruiser accidents, or for other forms of common negligence.

In order to get immunity from liability, the officer needs to be acting within the scope of his or her employment. When that is the case, the only claim available to a plaintiff would be one against the employer.  Immunity is not available where certain intentional conduct is alleged, including assault and battery, excessive force, etc.  This is nothing new – and this is the reason why civil complaints alleging excessive force against individual officers are not dismissed on immunity grounds.  Because the plaintiff in this case alleged assault and battery against the detail officer, the court declined to dismiss the case.  Of course, the plaintiff will now have to prove it before a jury.  This ruling added nothing new to the usual legal analysis.

If the plaintiff proves his case, the question of indemnification is the same as it often is in Massachusetts – the Cities and Towns decide whether to pay the judgment on a case-by-case basis.  However, where an officer is found by the courts to have acted in a willful, wanton or reckless manner (such that it would justify a punitive damage award by the jury), then the employer cannot indemnify.  Again, this has been the law for many years, and this latest case adds nothing new.

There is one note of concern in this case; the Judge declined to dismiss a count of negligence, filed against the officer personally. Usually, complaints alleging negligence by a police officer are dismissed, as discussed above, on grounds of sovereign immunity.  This court declined to do that, and has allowed this particular count to go to a jury based on this open question:  Who was the officer working for – the City or the bar? The court wrote that a jury could believe that the officer was working for the bar, based on certain facts brought out in discovery (i.e. working alone, not supervised by other officers, played a role similar to bouncer, was paid by vendor).  Most officers reading this probably think such a theory is way off base, as no officer in this day and age believes he or she is acting on behalf of the bar, but rather is acting on behalf of the City, in a public safety capacity.

Unfortunately, the court based its decision in part on an old case, decided before the enactment of GL c. 258, which since has granted immunity to public employees for negligence.  The result, of course, may be that certain negligence claims against officers working private details are allowed to get before a jury, which is troubling for two reasons: (1) negligence is easier to prove than an intentional act; and (2) officers determined to be negligent and acting outside the scope of their employment might be on the hook personally, with indemnification remaining uncertain.

Thoughts:  To the extent that someone sues an officer alleging excessive force, there is nothing new; the officer will be sued personally, and indemnification is on a case by case basis (absent contractual language making it mandatory).  On the negligence issue, this is hopefully not a trend.  This is a new decision, but it is an older incident (2005).  Most officers today are not paid directly by vendors, and the rules and procedures are more clear that the officer is not an agent of the nightclub.  The more that the facts bear out that the officer is acting solely in the interest of the public, and not the bar, the less we will see this type of claim allowed.

Word of caution to officers who work a regular private detail at such facilities  – be sure to conform to the Department’s policies regarding paid details, and avoid the pitfall of performing extra duties as the result of familiarity with the vendor. It is natural to want to help out a long-time vendor, but it is a slippery slope. Don’t offer to help carry that heavy keg of beer, or check ID’s where it is not within the Department policy. The more you take on duties of the bar, the more likely you can get tied up in the liability mess. Customer service is very important, but you do not want to risk your family home just to be nice.  As always, in either case, be sure to have your assets properly secured.

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