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Shepherd v. Washington County
962 S.W.2d 779, Ark., AR, 02/19/1998
Category Victim v. Third Party 
Topic Government, Correctional Facilities 
Filename Negligence, Permitting Escape 
Crime Homicide; Suicide 
Location Hospital 
Prevailing Party Plaintiff 
Other Parties sheriff 

Statement of Facts: On November 7, 1995, John Manning, an inmate of the Washington County Jail, was transported by a deputy to a private medical clinic in Fayetteville for purposes of receiving medical treatment. The plaintiff, Sue Shepherd, was a patient at the clinic on that date. At the clinic, Manning disarmed the deputy and killed him with the officer's gun. While trying to flee the clinic, Manning attempted to take the plaintiff hostage. The plaintiff was able to escape from Manning, but broke her foot. The plaintiff's husband, George Shepherd, intervened on her behalf and was shot and killed by Manning. Manning then stole the Shepherds' truck and wrecked it while attempting to elude officers of the Fayetteville Police Department, who had responded to the 911 call. Manning turned the gun on himself and committed suicide. The plaintiff sued the county and the sheriff's department, individually and on behalf of her husband's estate, for her own injuries and her husband's death. The plaintiff's complaint alleged tort claims based on tortious outrage, and willful and wanton conduct. The complaint also alleged violations of the Arkansas Civil Rights Act. The trial court granted the defendants' motion to dismiss and the plaintiff appealed. Holding: The Supreme Court of Arkansas affirmed the dismissal of the plaintiff's claim for tortious outrage, but reversed and remanded as to the claim for willful and wanton conduct and the civil rights claim. The Court first addressed the plaintiff's claim under the Arkansas Civil Rights Act, an issue of first impression for the Court, and concluded that the plaintiff's complaint sufficiently stated facts to establish a civil rights claim. The facts demonstrated that the defendants were aware that Manning had violent tendencies, had previously attempted to escape from their custody, had inflicted injury upon himself and others and had a history of mental disorders for which he received medication. These facts support the contention that the defendants affirmatively placed the Shepherds in a position of danger by not taking any precautions to protect potential victims at the clinic from being harmed. When the defendants undertook to transport Manning from the secured confines of the jail to an unsecured environment, they in effect relocated the custodial environment to the private clinic. Thus, the Court concluded that the defendants' actions established a special custodial relationship between the defendants and the Shepherds, such that the defendants owed a duty to protect them from the violent actions committed by Manning. The Court further concluded that even though the Shepherds were not personally known by the defendants to be patients at the clinic on that date, they were part of an identifiable group of potential victims (comprised of other patients and staff) of which the defendants were aware. Having concluded that the defendants owed a duty to the Shepherds, the Court then considered the proper standard of conduct to be imposed on the defendants. The plaintiff argued for a standard of conduct of "gross negligence," which is a less stringent standard of care than that of "deliberate indifference," which has been applied by the federal courts. The Court adopted the standard of "conscious indifference," which requires the plaintiff to demonstrate that the defendants knew or had reason to believe that their conduct would naturally or probably result in injury and that the defendants continued with such conduct in reckless disregard of the consequences from which malice can be inferred. Applying that standard to the instant case, the Court concluded that the plaintiff sufficiently plead facts establishing that the defendants acted with conscious indifference to the probable consequences of their actions or inactions in handling Manning at the clinic. The defendants were aware of the risks involved in transporting inmates, but they disregarded those risks by sending a lone officer, who was neither sufficiently trained nor properly equipped to handle this particular inmate in a public place. Therefore, the Court reversed the trial court's dismissal of the civil rights claim and remanded that issue for further proceedings. Similarly, for the reasons stated concerning "conscious indifference," the Court held that the plaintiff's complaint sufficiently alleged facts to support a claim that the defendants acted willfully or wantonly. Finally, the Court addressed the trial court's dismissal of the plaintiff's claim for tortious outrage. The Court agreed with the trial court and held that the plaintiff's complaint insufficiently alleged facts that would support a finding of the second element required to prove a claim of outrage, that the conduct of the defendants was "extreme and outrageous, beyond all possible bounds of decency," and was "utterly intolerable in a civilized community." 

Damage Award Not tried 
Victim's Counsel     
Plaintiff's Counsel Chris Lisle, Springdale 
Plaintiff's Expert      
Defense Counsel Robert Russell, Jr., Little Rock 
Defense Expert

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