VICARIOUS or IMPLIED LIABILITY

“The imposition of liability on one person
for the actionable conduct of another,
based solely on a relationship between the two
persons. Indirect or imputed legal responsibility
for acts of another; for example,
the liability of an employer for the acts of
an employee…”

Although there are no “vicarious liability” claims in Federal Court, the eight areas of vicarious liability are referred to, but using other terms. As an example, “negligent training” would be the same as “failure to train.”

The eight areas of vicarious liability will be discussed, followed by federal cases that show the correlation.

A clear understanding of vicarious liability and review of these federal cases will ensure that you and your agency are not negligent in these areas.

NEGLIGENT APPOINTMENT:

Handler:

1) Standards:
A) Pre-entry test:
Mentally and physically stable.
B) Background (history) of handler.

2) Training:
A) Consistent with the industry (Peace Officers Standards and Training).
B) Documented.

3) Testing:
A) Testing or evaluation or certification to the standards.

CANINE:

1) Standards:
A) Pre-entry test:
Mentally and physically stable.
B) Background (history) of canine.
2) Training:
A) Consistent with the industry (Peace Officers Standards and Training).
B) Documented.
C) Applies to both vendor provided or in-house training.

3) Testing:
A) Testing or evaluation or certification to the standards.

NEGLIGENT RETENTION:

Handler and canine:

1) Review of all use of force incidents.

2) Review of physical and mental stability.

3) Re-certification to the standards.

NEGLIGENT ENTRUSTMENT:

Canine to handler:

1) Entrustment of a dog (a potential use of force) to an officer who is not physically or mentally fit.

NEGLIGENT ASSIGNMENT:

Use of canine out-of-scope:

1) “Graham” objective reasonableness standard.

2) Exceeding the dog’s capability:
A) Turning a S.W.A.T./E.R.T. call into a canine call.
B) Using a Police Service Dog in a S.W.A.T. application, where the dog has not received training in this application.
C) Using a Narcotic Detector Dog for Police Service Dog person/evidence searches.

Unavailability / availability of canine:

1) The tool (canine) must be both available and utilized.

NEGLIGENT DIRECTION:

1) On-scene supervision or knowledge of canine deployment.

2) Written standards / policy.

NEGLIGENT TRAINING:

Standards:

1) State (Peace Officers Standards and Training) standards.

2) Written agency standards:
A) Must parallel and meet Peace Officers Standards and Training standards, minimally.
B) If no Peace Officers Standards and Training standards, agency standards must parallel and meet industry standards, i.e. U.S.P.C.A., etc.

Training:

1) Training to the standards.

2) Documentation, applies to both vendor provided or in-house training.

Testing:

1) Testing or evaluation or certification to the standards.

2) Non-interested evaluator.

3) Trained evaluator.

4) Documented.

5) Bi-annual or annual.

Evaluators:

1) Standards:
A) State (Peace Officers Standards and Training) standards.
B) Written agency standards must parallel and meet Peace Officers Standards and Training standards.

2) Training to the standards.

On-going documentation:

1) Training:
A) Weekly or bi-weekly.
B) Problems documented and resolved.

2) Deployment:
A) Every deployment.
B) Bite ratio.
C) Use of force review.

3) Certification/evaluation:
A) To the standards.
B) Non-interested evaluator.
C) Bi-annual or annual.

NEGLIGENT SUPERVISION:

1) Applies to all supervisors; trainer up to the departmental head.

2) Supervision of:
A) Standards.
B) Initial training to the standards, applies to both vendor provided or in-house training.
C) Testing to the standards.
D) Appointment of both handler and canine.
E) Retention of both handler and canine.
F) Entrustment of dog to handler.
G) Evaluator’s standards and training to the standards.
H) Maintenance training.
I) Deployment review.
J) Re-certifications or evaluations.
K) Documentation of all these areas.

NEGLIGENT DISCIPLINE:

Failing to properly track on, or impose discipline on employee’s improper conduct.

Reprimand elements:
1) Preparing to reprimand:
A) Do your homework.
B) Reprimand as soon as possible.
C) Don’t attack personality.
D) Don’t threaten.
E) Don’t reprimand in public.
F) Realize when it’s over, it’s over.

Reprimanding:
1) Tell the person what he/she did.
2) Share your feelings.
3) Pause.
4) Affirm past performance, recreate a picture of desired behavior.

source: canine legal update