VIRGINIA L. GIBBONS, Plaintiff,
v.
and ROES 1 through 10, inclusive,
Defendants.
High Court of
Trial Division
CA No. 128-93
[1] The doctrine of governmental immunity, which at
common law shielded the king from imputation of wrongdoing, has been supplanted
in American Samoa by the Government Tort Liability Act, A.S.C.A. § 43.1203.
[2] Under A.S.C.A. § 43.1203, the American
Samoa Government has voluntarily waived immunity for most tortious acts of
misfeasance and nonfeasance, and retains its common law shield against
liability only in certain particular circumstances.
[3] Governmental immunity for any claim based upon the
exercise or performance of, or the failure to exercise or perform, a
discretionary function or duty of an officer or employee is retained under
A.S.C.A. § 43.1203(b)(2).
[4] As to discretionary functions under A.S.C.A. § 43.1203(b)
(2), a distinction is made between activity that occurs at the executive or
planning level and that which occurs at the operational level; the former is
immune under the discretionary function exception, while the latter is subject
to potential tort liability.
[5] Day-to-day decisions involved with running a
prison are not necessarily operational in nature such that they would lose
their cloak of governmental immunity; some are discretionary.
[6] Although decisions such as whether to move a
prisoner to a lower-security unit, how often to conduct bed checks, and how
many lights and guards will be posted and where occur at the operational level,
such decisions are discretionary.
[7] Although prison officials are free under A.S.C.A.
§ 43.1203(b)(2) to use their judgment as to most daily decisions regarding
facility [3ASR3d136] administration,
there is no discretion involved pertaining to basic security measures.
[8] Such things as not closing off a hole in a cell wall large enough
for an inmate to escape through, a failure to secure a perimeter gate, and
generally maintaining a prison in such a sorry state that the warden refers to
security as “a joke,” are not shielded from immunity as the product of
governmental discretion; unlike decisions involving judgment, such basic acts
and omissions require none, and so are not exempt from liability under the discretionary
function exception to the Government Tort Liability Act.
[9] The
American Samoa Government has a legal obligation to protect fellow inmates and
members of the general public from those whom it has taken within its custody,
and may be held liable for harm done by an inmate negligently permitted to
escape.
[10] A
failure to secure the walls and fencing of a prison is unreasonable, and
constitutes a breach of duty of owed by the American Samoa Government to a
party living near the prison.
[11] A
prison custodian’s duty to third parties is to take reasonable precautions to
keep criminals confined so that they may not commit further crimes.
[12]
Where an escapee proceeds within hours to attack a party living next to the
prison, especially where such attack is exactly the type of crime in the same
area for which he had been convicted, it is clearly foreseeable that the breach
of the prison custodian’s duty of care–by neglecting to cover huge holes in the
prison’s walls, by leaving perimeter gates unsecured, by negligently allowing
alcohol into the compound, and by generally failing to provide reasonable
security measures–could result in such a crime and the injuries to the person
attacked.
[13] The American Samoa Government, receiving pecuniary benefit as a
landlord of a government housing complex, acts in a proprietary manner, and
therefore may not hide behind the cloak of governmental tort immunity when so
acting.
[14] Without the benefit of sovereign immunity, the
American Samoa Government’s responsibility to its tenants is the same as that
of any other landlord; and the guiding principle is that landlords have no duty
to protect tenants from criminal attack.
[15] The forseeabilty exception to the principle that landlords have no
duty to protect tenants from criminal attack is not present where only one
significant criminal act occurred at a government housing complex three [3ASR3d137] years prior to the attack
on the plaintiff; and it is mere speculation that a prison’s proximity to the
government housing complex makes the latter significantly more prone to violent
crime.
Before KRUSE, Chief Justice, TUA`OLO, Chief Associate
Judge, AFUOLA, Associate Judge.
Counsel: For Plaintiff, Aumoeualogo S. Salanoa,
William H. Reardon
For Defendants, Fiti A. Sunia, Assistant
Attorney General
OPINION AND ORDER
Introduction
On February 16, 1992, plaintiff Virginia Gibbons (“Gibbons”), was
sexually assaulted by Maosi Fuala`au (“Fuala`au”) after he escaped from the
American Samoa Government Correctional Facility in Tafuna (“Correctional Facility”) where he was serving
a prison sentence for the earlier sexual assault of another Government Housing
tenant. Gibbons brought suit for tort damages under two theories of liability.
She alleges the American Samoa Government (“ASG”) breached its duty of care in
its capacity as prison custodian and breached its duty of care in its capacity
as her landlord.
Gibbons and ASG each brought motions for summary
judgment prior to trial, both of which were denied (on
Facts
At the time
of the attack, Gibbons was a contract specialist hired to work for ASG. She
lived in the Government Housing Tract in Tafuna (“Government Housing”) which is
owned and operated by ASG and which is where ASG houses most of its contract
employees. On
Only hours
before the attack, Fuala`au had escaped from the Correctional Facility where he
was serving a 5-year term for the rape of Phyllis McCullum, another former
Government Housing resident. Officers at the Correctional Facility discovered
Fuala`au missing during [3ASR3d138] a
bed-check at about 1:00 a.m. Officers looked for him at the Correctional
Facility and, at about
Discussion
For each of
Gibbons’ two theories for recovery—ASG as custodian of the Correctional
Facility and as landlord of the Government Housing complex—ASG both denies
liability and claims governmental tort immunity. We will examine each of these
theories in turn, first determining whether the government is immune from tort
liability and then, if necessary, proceeding on to assess whether ASG is in
fact liable for Gibbons’ injuries.
A. ASG as Custodian of the Correctional Facility
1. Governmental
Tort Immunity
[1-3]
Governmental immunity was originally established at common law to shield the
king from the imputation of wrongdoing but, not surprisingly, this concept has
largely been abolished in modern times. In
[4] With only this very basic statutory language to serve as a starting
point, then, it is therefore left to the courts to determine what sorts of
activities properly constitute “discretionary functions” within the meaning of
the statute. Fortunately, this jurisdiction is not without precedent on the
issue. In the seminal case of Savage v.
American Samoa Government, 1 A.S.R.2d 102, 105-06 (Trial Div. 1983),
this court drew a distinction between activity that occurs at the executive or
planning level and that which occurs at the “operational” level, holding that
the former was immune under the discretionary function exception, while the
latter remained subject to potential tort liability. Citing Hansen v. City of
[5] Were we
to confine our discussion to the Savage case and apply the traditional
“planning level” versus “operational level” distinction, the day-to-day
decisions involved with running a prison presumably would be found to be
operational in nature and would therefore lose their cloak of governmental
immunity. However, after reviewing recent developments in this area of the law
in other jurisdictions, we are persuaded to reject the rigidity of the Savage
holding with respect to this issue and instead follow the somewhat more
flexible approach outlined by the United States Supreme Court in United
States v. Gaubert, 499 U.S. 315 (1991).
In
interpreting the discretionary function exception of the Federal Tort Claims
Act—a provision nearly identical to A S.C.A. § 43.1203(b)(2)— the Gaubert court
expressly rejected the notion that activities at the operational level by
definition could never involve discretion:
A discretionary act is one that involves choice or
judgment; there is nothing in that description that refers exclusively to policy-making
or planning functions. Day-to-day management of banking affairs, like the
management of other businesses, regularly requires judgment as to which of a
range of permissible courses is the wisest. Discretionary conduct is not
confined to the policy or planning level.
[6] With this framework in mind, we now turn to the specific facts of this
case regarding the government’s custodianship of the Correctional Facility. As
the ASG correctly points out, certain decisions by prison administrators,
alleged to be negligent by Gibbons, did indeed involve elements of discretion
and are properly immune from tort liability under A.S.C.A. § 43.1203(b)(2).
These include, for example, the critical decision to move Fuala`au to the
lower-security Juvenile Unit, as well as major administrative decisions such as
how often bed checks would be conducted or precisely how many lights and guards
should have been posted in which positions around the prison grounds. Although
they [3ASR3d140] occur at the
“operational level,” these matters involve basic issues of resource allocation
and require close judgment calls which are best left to those trained in the
field of penal administration. Within
reason, prison officials must be given appropriate leeway to run the
Correctional Facility as they deem to be most effective given their available
resources; in short, the court will not seize our inevitable advantage of
perfect hindsight to hold such decisions unreasonable after the fact.
[7-8] However, while prison officials are free under A.S.C.A. §
43.1203(b)(2) to use their judgment on most of the daily decisions regarding
the administration of the Correctional Facility, there is no discretion
involved in ASG’s activities—or non-activities, as the case may be—pertaining
to basic security measures. Most notably, the decision to not close off a hole
in the cell wall large enough for an inmate to escape through does not require
the exercise of discretion; failure to secure the perimeter gate presumably
does not involve a decision at all, much less one requiring any degree of
judgment; and generally maintaining the Correctional Facility in such a sorry
state that even the warden referred to security as “a joke” cannot be shielded
from immunity as the product of governmental discretion. Unlike those decisions
which involve some element of judgment, these most basic acts and omissions
require none, and they therefore are not exempt from liability under the
“discretionary function” exception to the Government Tort Liability Act.
As a result of this analysis, then, certain ASG decisions held to be
immune may therefore not be considered in the following discussion of liability
(e.g., the decision regarding Fuala`au’s assignment to the Juvenile Unit, bed
check procedures, guard assignments, etc.). Any finding of negligence,
therefore, must be predicated on the remaining facts which involve
non-discretionary activities.
2. Liability
as Prison Custodian
[9] Like any action for negligence, to demonstrate liability in this case
plaintiff must prove the standard elements of duty, breach, and cause. The
first element, duty, is a straightforward question of law on which there is
direct precedent in this jurisdiction. In Rakhshan
v. Tuilefano, 18 A.S.R.2d 46, 48 (Trial Div. 1991), the court
explicitly identified ASG’s legal obligation to “protect fellow inmates and
members of the general public from those whom it has taken within its
custody.” Other courts have come to the
similar conclusion that, under appropriate circumstances, the government may be
held liable for harm done by inmates negligently permitted to escape. See generally 44 A.L.R.3d 899, 901, Liability—Harm by Escaped Prisoner; Webb
v. State, 91 So.2d 156 (La. App. 1956).
[3ASR3d141]
[10] Having established that ASG owed Gibbons a duty, we now turn to the
more difficult and fact-intensive issues which tend to be determinative in
prison escapee cases. As addressed above in the discussion of governmental
immunity, any finding of breach must be the result of those acts which were
non-discretionary in nature. In reviewing that subset of facts, we hold that
ASG was indeed negligent in its operation of the Correctional Facility.
Notwithstanding the fact that the Correctional Facility had been ravaged by
Hurricane Val a few months prior to the escape, we find that the failure to
secure the walls and fencing of the prison was unreasonable even under these
extraordinary circumstances. Moreover, according to the evidence offered by the
warden himself, security had been generally lax even prior to Val’s arrival.
Inmates negligently had obtained access to alcohol, and Fuala`au himself was
intoxicated on the evening in question. Perimeter gates were routinely left
unlocked and unguarded. In short, the Correctional Facility’s security and
escape record historically had been—and continues to be, for that
matter—nothing short of abysmal. Even
without regard to those decisions involving the discretion of prison officials,
ASG breached its duty of care to Gibbons.
[11] Despite
the finding that ASG breached its duty of care, however, recovery may
nevertheless be denied if Gibbons’ injuries are not within the scope of the
duty breached. See Frank v. Pitre, 341
So.2d 1376 (
[12] Unlike Green,
though, the specific facts of this case lean heavily toward finding the ASG
liable, and we do so find. In those
cases which reject finding liability for a prison custodian, the primary reason
cited is often the lack of temporal and geographic proximity between the escape
and the post-escape injuries. See Nelson v. Parish of
Even more importantly, though, upon making his escape Fuala`au
proceeded almost immediately to commit the exact same crime—and in the exact
same general location—of which he had been convicted three years earlier. The
very purpose of his incarceration was to prevent precisely this type of
injury to innocent third persons such as Virginia Gibbons, and it was
clearly foreseeable that the breach of the prison custodian’s duty of care
could result in such a crime. See
Geiger v. State, 242 So.2d 606 (
Although the actual crime was different in Webb v. State, the
court in that case elaborated on the issue of foreseeability:
An escape is almost always foremost in the mind of a
dangerous criminal. It was foreseeable that leaving a dangerous criminal
unchecked for hours at night would give him an immediate opportunity to attempt
his goal. Also, it was foreseeable that leaving dope and whiskey at his
disposal would only increase the probability of an attempted escape.
91 So.2d
156, 162 (
B. ASG as Landlord of the
Government Housing Complex
1. Governmental
Tort Immunity
[13] The issue of sovereign immunity is much simpler with respect to this
claim than that of prison custodian, as we need not even address the issue of
whether this governmental conduct is “discretionary” within the meaning of
A.S.C.A. § 43.1203(b)(2). As a landlord,
ASG receives a pecuniary benefit from its rental housing operation, and is
therefore acting in a proprietary capacity.
In the Savage case, supra, the court held that the ASG
could not avail itself of sovereign immunity when acting in a proprietary
capacity, and specifically identified the rental of housing units to its
employees as one such activity. 1
A.S.R.2d 102, 106. See also Baumgardner v.
2. Liability
[14] Without the benefit of sovereign immunity, ASG’s responsibility to its
tenants is the same as that of any other landlord, and the guiding principle in
these cases is that “landlords have no duty to protect tenants from criminal
attack.” Walls v. Oxford Management Co., Inc., 633 A.2d 103, 106. Put
another way, “landlords are not insurers that a tenant will be protected at all
times. . . . To impose liability over the mere possibility of a crime occurring
is folly.” C.S. v. Sophir, 368 N.W.2d 444, 446-7 (
There are important exceptions to this general rule, however. For the
instant case, the most significant of these is the principle that liability may
be triggered when there exists “clear foreseeability,” even if no causal
connection exists with respect to a physical defect of the housing premises. Trentacost
v. Brussel, 412 A.2d 436, 438 (N.J. 1980) (obvious criminal activity in
tenant’s neighborhood created foreseeability of attack). Gibbons argues, inter
alia, that the Government Housing complex’s proximity to the Correctional
Facility, coupled with ASG’s knowledge of the prior rape for which Fuala`au was
originally incarcerated, created the requisite foreseeability sufficient to
impose liability. We disagree.[1] [3ASR3d144]
Those cases which have found foreseeability that a crime would be
committed on rental property have typically identified a pattern of crime which
includes multiple incidents occurring over a relatively short period of time.
In Nallan v. Helmsley-Spear, Inc., for example, foreseeability was
established when 107 crimes had been reported in a single apartment building
(including 10 against persons) over a 21-month period immediately preceding a
shooting there. 407 N.E.2d 451, 519-20 (NY 1980). Similarly, in Kline v.
Massachusetts Avenue Apartment Corp., the court recognized “repeated
criminal assaults and robberies” on the premises sufficient to give the
landlord notice that additional crimes would likely be attempted in the future.
439 F.2d 477, 481 (D.C. Cir. 1970). See also Flood v. Wisconsin Real Estate
Inv. Trust, Inc., 497 F.Supp. 320 (D.Kan. 1980).
[15] In the case at bar, however, Gibbons identified only one significant
criminal act at the Government Housing complex: the rape committed by Fuala`au
three years prior to her own attack. In Sophir, supra, the court was
confronted with a similar fact pattern, although the argument for liability was
actually much stronger there because the prior assault occurred only two months
before the incident at issue in that case. Nevertheless, the court surveyed the
relevant caselaw and reached its conclusion:
No cases were found which impose liability on a
landlord based on a single prior criminal act perpetrated upon a tenant.
. . . Likewise, in the present case there would be no foreseeability, based on
one prior assault, upon which to predicate liability.
368 N.W.2d
444, 447 (
The notion that the Correctional Facility’s proximity to the Government
Housing complex makes the latter significantly more prone to violent crime is
mere speculation; as presented by Gibbons, the evidence itself shows only a
single similar incident which had occurred three years earlier, and we find
such a history insufficient to create foreseeability. Although we therefore
deny liability on this theory under these particular facts, however, ASG is
nevertheless strongly encouraged to take any and all steps to make its rental
housing operation as safe as possible.
Order
For the foregoing reasons, ASG is found liable in its capacity as
custodian of the Correctional Facility, and not liable in its capacity as [3ASR3d145]landlord of the Government
Housing complex. As contemplated by our bifurcation order of February 2, 1998,
trial on the issue of damages will be set upon appropriate motion.
It is so Ordered.
**********
[1] Note that although somewhat related, the two issues
of foreseeability in this case are in fact quite distinct. The first, discussed
supra at pages 10-11 with respect to ASG’s liability as prison
custodian, looks from the unique perspective of the Correctional Facility
officials. In evaluating the issue, we found it to be reasonably foreseeable
that this particular inmate—given his own particular criminal history—would
rape again if given the chance.
In this new inquiry as to foreseeability,
however, we are now called upon to adopt the perspective of ASG as landlord.
For these purposes, we examine a different body of evidence altogether: we look
not at the history of any given inmate, but rather at the overall history of
crime in the Government Housing tract. Foreseeability in this context presents
a more difficult hurdle, as Gibbons must demonstrate foreseeability not only
that any given escapee would commit a violent crime of this nature, but also
that an inmate so inclined would escape in the first place and even be given
the opportunity to do so.