Immunity Exists for Policy Officer Unless The State Has Insurance
A state government in Arkansas, and its employees, are immune from suit unless and only up to the amount of available insurance.
In Jason Harris v. Norman Beth, Supreme Court of Arkansas, 2017 Ark. App. 186 (March 29, 2017) the Supreme Court found that Jason Harris, an officer with the Little Rock Police Department K-9 Unit and was assigned a canine officer named Ammo in October 2012. As part of his duties, Harris was required to house Ammo at his private residence and he and Ammo were required to be available on a twenty-four-hour, on-call basis to assist other officers as needed. In August 2014, Norman Beth, Harris’s neighbor, was doing yard work at his home when he was bitten on the leg by Ammo, who had escaped from Harris’s backyard. Harris was not home at the time of the incident.
In January 2015, Beth filed a complaint against Harris alleging negligence and strict liability for housing an animal known to have dangerous tendencies. Beth sought compensatory and punitive damages for the injuries to his leg. Harris responded by denying the allegations in their entirety and by affirmatively pleading qualified immunity.
THE PUBLIC POLICY OF ARKANSAS
Ark. Code Ann. § 21-9-301(a) provides that it is the public policy of the State of Arkansas that all political subdivisions of the state shall be immune from liability and from suit for damages except to the extent that they may be covered by liability insurance. Harris argued that this immunity is extended to a municipality’s employees for acts of negligence committed in their official capacities and that he was acting in his official capacity for the Little Rock Police Department by maintaining Ammo at his residence and remaining on call twenty-four hours a day.
EXISTENCE OF INSURANCE
Beth asserted that he had never alleged Harris was liable in his official capacity, but even if he had, Harris’s home was covered by a homeowner’s insurance policy, which Beth attached as an exhibit. So Harris would be immune from liability only “to the extent that [he] may be covered by liability insurance.” Harris replied that “the issue of insurance is not that provided to Defendant Harris in his individual capacity but that provided to him through the City of Little Rock in his official capacity,” so the homeowner’s policy was irrelevant.
In its oral ruling, the circuit court found that this was a question of law and that Harris’s argument was compelling. Nonetheless, the court ruled that the statute did not provide immunity in this case, because if it did, “there is absolutely in my mind no way that the Defendant could be liable for whatever that dog did anytime, anywhere. I can’t believe that’s what the statutes were intended to do and, therefore, the Motion for Summary Judgment is denied.”
The Supreme Court, relying on a decision from Georgia, Eshleman v. Key, 774 S.E.2d 96 (Ga. 2015),where the Georgia Supreme Court, in a similar fact situation, reversed the denial of summary judgment on immunity grounds and stated that a police officer and dog handler, “Eshleman is responsible for the care and maintenance of Andor at all times, even when she is not working.” For this reason, the allegation that Eshleman failed to secure the dog outside her home concerns her performance of an official function, and as a result is presumptively entitled to official immunity.
The Supreme Court of Arkansas, agreeing with Georgia, affirmed the circuit court’s decision because Harris failed to establish a prima facie entitlement to summary judgment.
The statute provides immunity to municipal employees for acts committed during the performance of their official duties except to the extent there is liability coverage.
Since Harris failed to plead and prove that the city lacks liability coverage he was not entitled to summary judgment.
A homeowners policy held by a police officer is not the type of insurance called for by the statute since it does not cover the state or the police department. To avoid the immunity set by the statute the plaintiff must prove that there was insurance protecting the police department for bites by police dogs.
This article and all of the blog posts on this site summarize cases published by courts of the various states and the United States. The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.
Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant and expert witness specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 49 years in the insurance business.
Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.
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