Some of the factors a court may consider in determining whether a state official is liable for negligent supervision are:
- Misconduct by a non-policymaking employee that is the result of training or supervision “so reckless or grossly negligent” that misconduct was “almost inevitable” or “substantially certain to result.” Vinson v. Campbell Cty. Fiscal Court, 820 F.2d 194 (6th Cir. 1987).
- The existence of special custodial or other relationships created or assumed by the state in respect of particular persons. A “right/duty” relationship may arise with respect to persons in the state’s custody or subject to its effective control and whom the state knows to be a specific risk of harm to themselves or others. Additionally, state officials may be liable to the extent that their conduct creates a danger from which they fail to adequately protect the public. See Withers v. Levine, 615 F.2d 158 (4th Cir.), cert. denied, 449 U.S. 849 (1980) (prison inmates under known risk of harm from homosexual assaults by other inmates); Davis v. Zahradnick, 600 F.2d 458 (4th Cir. 1979) (inmate observed attacking another inmate); Woodhous v. Virginia, 487 F.2d 889 (4th Cir. 1973); cf. Orpiano v. Johnson, 632 F.2d 1096, 1101-03 (4th Cir. 1980), cert. denied, 450 U.S. 929 (1981) (no right where no pervasive risk of harm and specific risk unknown); Hertog v. City of Seattle, 979 P.2d 400 (Wash. 1998) (city probation officers have a duty to third persons, such as the rape victim, to control the conduct of probationers to protect them from reasonably foreseeable harm; whether officers violated their duty was subject to a factual dispute.)
- The foreseeability of an offender’s actions and the harm those actions may create. Even in the absence of a special relationship with the victim, state officials may be liable under the “state created danger” theory of liability when that danger is foreseeable and direct. See Green v. City of Philadelphia, 92 Fed. Appx. 873 (3rd Cir. 2004). The state-created danger exception to the general rule that the state is not required to protect the life, liberty, and property of its citizens against invasion by private actors is met if: (1) the harm ultimately caused was foreseeable and fairly direct; (2) the state actor acted in willful disregard for the safety of the plaintiff; (3) there existed some relationship between the state and the plaintiff; (4) the state actors used their authority to create an opportunity that otherwise would not have existed for the third party's crime to occur.
- Negligent hiring and supervision in cases where the employer’s direct negligence in hiring or retaining an incompetent employee whom the employer knows, or by the exercise of reasonable care should have known, was incompetent or unfit, thereby creating an unreasonable risk of harm to others. See, Wise v. Complete Staffing Serv., Inc., 56 S.W.3d 900, 902 (Tex. Ct. App. 2001). Liability may be found where supervisors have shown a deliberate indifference or disregard to the known failings of an employee.
The obligation of state officials to fulfill ministerial acts, which are not open to discretion, generally gives rise to liability. For example, an officer can be held liable for failing to execute the arrest of a probationer or parolee when there is no question that such an act should be done. See Taylor v. Garwood, 98 F. Supp. 2d 672 (E.D. Pa. 2000).