Recent Seventh Circuit Case Permits Respondeat Superior Liability for Municipality
Author: Crivello Carlson
Pardon me while I dust the cobwebs out of here and shoo away the crickets. Yes, it’s been a while since we’ve last posted. But there have not been many noteworthy–and published– decisions from Wisconsin courts on which to report.
Lest you fear that we’ve thrown in the blogging towel, I am here to assure you that we are ever vigilant for interesting and significant cases. One such case is Petkus v. Richland County, Wisconsin, — F.3d —, 2014 WL 4073075 (7th Cir 2014).
Petkus operated an animal sanctuary in Richland County in rural southwestern Wisconsin. In 2009, Petkus was arrested after an investigation by the ASPCA related to animal cruelty claims under Wis. Stat. § 173.10. The ASPCA investigation included a search of Petkus’s property and resulted in removal of over 300 animals and prosecution for animal neglect. She was convicted and sentenced to three years of probation. Petkus then sued the County and several of its deputy sheriffs, alleging negligence and violation of 42 U.S.C. § 1983. Petkus argued that the County and deputy sheriffs were liable for the negligence of the ASPCA volunteers who conducted the search under the doctrine of respondeat superior for causing extensive physical damage to her house, barn, and other property and causing emotional distress. She also alleged that the search was unreasonable within the meaning of the Fourth Amendment. A jury found in favor of Petkus, though the judge reduced the damages awarded to her. Both sides appealed.
While normally respondeat superior does not apply to municipalities, the County did not challenge its applicability. Thus, the Court took up the County’s argument that it was not responsible for the damage “because the sheriff’s deputies did not supervise the animal-rights activists who conducted the search and who therefore inflicted the damage.” The Court rejected that argument, explaining rather colorfully,
Police cannot hire the Hell’s Angels to conduct highway patrol and, though failing to train or supervise them, shuck off responsibility when one of the Angels beats a speeder into a bloody pulp with a tire iron.
p. 4. Also on appeal, the County argued that even if it violated federal and state law, it was absolutely immune from liability under Wis. Stat. § 893.80(4). The Court also rejected this argument, because again the County did not pursue it in a timely fashion:
[A]lthough the County invoked the statute in its answer to the complaint, that was the last mention of it, so the defense has been forfeited. The County argues that the immunity can’t be forfeited; Wisconsin’s supreme court has held that it can be.
p. 4, citing Anderson v. City of Milwaukee, 208 Wis.2d 18, 559 N.W.2d 563, 570 (1997). Likewise, the County failed to benefit from the damages cap in Wis. Stat. § 893.80(3), but not because the County “failed to mention it at trial or ask that it be included in the instructions to the jury.” The cap “cannot be waived by omission to plead it–even after judgment.” p. 5. But this did not save the County, because the damages awarded were indivisible and the cap does not apply to Fourth Amendment claims.
[T]he indivisible consequence of the violation of the Fourth Amendment and the violation of state law. Had there been no violation of state law but only of the Fourth Amendment, the damage to Petkus would have been the same, and likewise had there been a violation only of state law.
p. 5. The jury awarded Petkus damages of $193,480, of which $133,480 was for the negligent conduct of the search and the other $60,000 for the violation of the Fourth Amendment. “The district judge entered judgment for only $133,480 ($193,480–$60,000), however, explaining that although there had been two violations there had been only one injury and the higher of the jury’s two valuations of the injury was $133,480.” The Seventh Circuit agreed that the “judge was right to disallow the $60,000 component of the verdict. Petkus had established two separate violations, but the damage caused by the searchers’ negligence was the same damage caused by the search’s having violated the Fourth Amendment.”
It seems entirely possible that the County could have prevailed on a dispositive motion had it challenged the applicability of respondeat superior under the well-established principles of Monell v. Department of Social Services, 436 U.S. 658, 690–91, 98 S.Ct. 2018 (1978). In reviewing the record of the district court, it appears that the County never filed any such motion. This omission was a costly one.