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October 27, 2016
  Dugard v. United States
Dugard v. United States - Ninth Circuit

Headline: A Ninth Circuit panel references California law in holding that the Federal Tort Claims Act ("FTCA") does not impose a duty on the U.S. government to protect the general public from injuries caused by convicts released on parole.

Areas of Law: Federal Tort Claims Act, Sovereign Immunity

Issue Presented: Whether the United States is liable for negligence under the FTCA for its probation officers' failure to control a dangerous parolee where a private individual would not be liable in like circumstances under California law.

Brief Summary: The Ninth Circuit considered the district court's grant of summary judgment finding that federal parole officers are not liable for the actions of parolees under the FTCA. Appellant Jaycee Dugard ("Dugard"), who was kidnapped and imprisoned for 18 years by parolee Phillip Garrido's ("Garrido"), sued the United States on behalf of herself and her minor children claiming that federal parole officers' failure to report Garrido's parole violations caused them injury. The district court granted summary judgment on the grounds that the United States waived sovereign immunity under the FTCA, 28 U.S.C. § 2674, only in cases where a private individual would be liable in like circumstances under applicable state law. The district court found the parole officers would not have been liable under California law.

The Ninth Circuit affirmed. It relied on the language of the FTCA and LeBarge v. Mariposa City, 798 F.2d 364, 367 (9th Cir. 1986), where the Ninth Circuit found a court's job was to apply the "most reasonable analogy" under state law. The court found that federal parole officers are most analogous to private rehabilitation centers, and because such centers would not be liable in similar circumstances under California law, the United States was not liable under the FTCA for the parole officers' conduct.

Significance: The United States is not liable under the FTCA for the negligence of its parole officers in monitoring parolees where there would not be liability in analogous circumstances under applicable state law.

Extended Summary: Garrido served 11 years of a 50-year prison sentence for the kidnapping and rape of two women in 1976. Medical professionals determined that Garrido's sexual violence was exacerbated by abuse of methamphetamines. When Garrido was released on parole in 1988, his parole terms included mandatory drug testing.

In the first 30 months after his release, Garrido's parole officers failed to report approximately 70 drug-related parole violations. While on parole in 1991, Garrido kidnapped Dugard who was age 11. For the next 18 years, Garrido imprisoned Dugard in his backyard where he repeatedly raped and drugged her. Dugard gave birth to two of Garrido's children without any medical treatment. She and her children remained captive until their discovery in 2009.

In September 2011, Dugard sued the United States under the FTCA on her own behalf and as guardian of her children. She alleged that federal parole officers negligently supervised Garrido, including failure to report his numerous parole violations. She alleged that, but for the parole officers' negligence, Garrido's parole would have been revoked and he would have been unable to kidnap Dugard in 1991.

Following discovery, the United States moved for summary judgment on grounds that the FTCA barred Dugard's claims because there is no liability for private individuals in like circumstances under California law, as required to sustain a FTCA claim under 28 U.S.C. § 2674. The district court found private parties providing criminal rehabilitative services to be the reasonable analogy to parole officers under California law. California law holds that such private parties do not owe a duty of reasonable care to control others generally, but only to a very small group of specifically identifiable and foreseeable victims. Since Dugard did not allege she was a specifically identifiable victim, the United States owed no duty of care to Dugard and her children.

On appeal, the Ninth Circuit affirmed the judgment. The court discussed the FTCA by which the United States has waived sovereign immunity in limited cases. The statute provides the United States is liable "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674. The Court cited LeBarge v. Mariposa City, 798 F.2d 364, 367 (9th Cir. 1986), a Ninth Circuit precedent in which the court held that FTCA claims require courts to adopt a "reasonable analogy" standard when determining if immunity is waived.

The Ninth Circuit panel reasoned that the California cases most analogous to Dugard's situation involved the liability of private criminal rehabilitation facilities. Under California law, such private companies do not owe a duty of care to the public at large for the actions of inmates or parolees under their supervision. Cardenas v. Eggleston Youth Ctr., 238 Cal. Rptr. 251, 252-53 (Ct. App. 1987) (holding that a private rehabilitation facility owes no duty of care to "members of the community in which it is located for the criminal conduct of its residents"); Beauchene v. Synanon Found, Inc., 151 Cal. Rptr. 796, 798-99 (Ct. App. 1979) (holding that a private rehabilitation center owed no duty to the plaintiff to control the behavior of a convict who escaped the facility and shot the plaintiff). Rather, privately owned criminal rehabilitation facilities only owe a duty to individuals who are foreseeable and specifically identifiable victims of their wards' conduct. Vu v. Singer Co., 706 F.2d 1027, 1029 (9th Cir. 1983) (discussing the duty to warn under California law and concluding that it "clearly" requires a "foreseeable and specifically identifiable" victim); Rice v. Ctr. Point, Inc., 65 Cal. Rptr. 3d 312, 316 (Ct. App. 2007) (explaining that a duty exists only where the "injury is foreseeable and the intended victim is identifiable").

The Ninth Circuit panel stated that Dugard neither argued nor submitted facts to suggest that she was a specifically identifiable victim who would have a viable claim against an analogous private party under California law. Because the extent of the federal government's liability under the FTCA is described with reference to state law, when California limited the liability of private rehabilitative institutions, the federal government's liability under the FTCA shrunk as well. The Ninth Circuit panel also noted how limiting liability for officials involved in the release and rehabilitation of criminal offenders is consistent with California's public policies that encourage criminal rehabilitation. To hold otherwise would force the range of goals to shift from rehabilitation to protecting the public, thereby disrupting the ability of probation officers to develop flexible and appropriately tailored approaches suited for each offender. This would be a disservice to both the offenders and society.

To read the full opinion, please visit:

Panel: William E. Smith, Chief District Judge of Rhode Island sitting by designation, and Richard R. Clifton, John B. Owens, Carlos T. Bea, Circuit Judges

Argument Date: January 12, 2016

Date of Issued Opinion: August 26, 2016

Docket Number: 13-17596

Decided: Affirmed

Case Alert Author: Devin Bruen

In No. 13 - 17596: Jonathan P. Steinsapir (argued), Dale F. Kinsella, Amber Holley Melius, and David W. Swift, Kinsella Weitzman Iser Kump & Aldisert, LLP, Santa Monica, California, for Plaintiff-Appellant

Patrick G. Nemeroff (argued) and Mark B. Stern, Attorneys, Appellate Staff, Civil Division, Department of Justice, Washington, D.C., for Defendant-Appellee

Author of Opinion: Judge Owens

Dissent: Judge Smith

Case Alert Supervisor: Philip L. Merkel

    Posted By: Glenn Koppel @ 10/27/2016 03:35 PM     9th Circuit  

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