New York Civil Rights & Criminal Defense Lawyers

“Frolic or Detour?”: Rivera’s implications for victims of excessive use of force at the hands of Correctional Officers

By: Brendan Gilmartin

Correctional facilities are stressful environments where tensions often run high. These facilities create situations that often lead to the use of excessive force by correctional officers for myriad reasons. When excessive force is used, correctional officers may violate an inmate’s Eighth Amendment right to be free from “cruel and unusual punishment”. When a correction officer uses excessive force on an inmate, oftentimes the State of New York (State) is also sued for the actions of the correction officer. Holding the State liable for the actions of the correction officers is important because it serves the dual purposes of holding the State accountable and providing an incentive for the State to enact better policies for inmates and correctional officers so that it will not be held liable for excessive use of force in the future.

The primary mechanism by which the State is held liable for the actions of its correctional officers is through a legal doctrine known as respondeat superior, which roughly translates to “let the superior reply”. However, a superior need not reply for every misconduct carried out by an employee. A common litigation defense the State asserts is that the actions of its employees were outside the “scope of employment”. If an employee’s actions fall within the scope of employment, the employer can be held liable by respondeat superior; however, if they do not fall within the scope of employment, the employer is not liable and the only recourse a victim of a tort will have is to pursue a case against the tortfeasor personally.

Where the boundary of “scope of employment” begins and ends can often be fuzzy, but one way the law has attempted to make a distinction is through the legal concepts of frolic and detour. Cronin v. Hertz Corp. 818 F.2d 1064, 1066 (2d Cir. 1987). A frolic is considered a major deviation by an employee from her job duties. Imagine a mailman who diverts from delivering mail to go and “frolic” in a field of flowers, he does so purely for his own benefit and unrelated to his job duties. This is a situation where he is not acting within the scope of employment. A detour can be considered a minor deviation. For example, if the mailman in the aforementioned example diverts from delivering mail briefly to get some lunch so that he is satiated to continue his job, but hits a pedestrian on his way to get lunch, then although the mailman was acting for his own benefit, he was only departing from his duties in a minor way. Thus, the employer is arguably liable for the mailman’s negligent action which injured the pedestrian through respondeat superior.

In prison cases, the use of excessive force in violation of an inmate’s Eight Amendment rights could be within a correction officer’s scope of employment if that force is used to further a goal of their employer’s business (the correctional facility), and not for “wholly personal motives”. Pizzuto v. County of Nassau, 239 F. Supp. 2d 301, 314 (E.D.N.Y. 2003). In Pizzuto, an inmate refused to stop yelling when correctional officers told him to “shut up”. The correctional officers used force for the dual purpose of quieting him down and disciplining him for disobeying orders, both of which were found to be furthering the employer’s interests. Id. As a result, the County of Nassau was held liable.

The case of Rivera v. State involved a correctional officer who taunted an inmate who wore a helmet to protect him from seizures. 34 N.Y.3d 383 (2019). When the inmate told the officer to “F*** off” the officer escorted him out of the mess hall and proceeded to beat him. In a 4-3 decision, the New York Court of Appeals ruled that the correctional officer in Rivera acted outside the scope of employment, and therefore the State could not be held liable for Rivera’s injuries. In other words, the officer’s actions were considered a frolic rather than a detour.

Plaintiff argued that the officer was disciplining the inmate for using vulgar and disrespectful language towards the correctional officer. He enacted this discipline through physical force; albeit excessive physical force. The fact that this altercation began in the mess hall where Rivera disrespected the correction officer in front of many other inmates arguably buttresses the fact that the deployment of force had a disciplinary intent. Categorizing the officer’s actions as a ‘frolic’, where the correction officer carried out the beating merely for his own benefit, disregards the tense environment which demands adherence to rules, norms, and respect in correctional facilities. One might argue a much more apt description would be to consider this action a ‘detour’, while the officer did not conduct the beating in front of other inmates, he did so to discipline Rivera for the use of expletives and to ‘teach’ him to respect correction officers.

This decision further narrows “the scope of employment” in the context of correction officers’ actions. If a severe beat down for the use of an expletive is considered a frolic, it is unclear where excessive use of force on an inmate during a pat and frisk would fall along the frolic/detour spectrum as well. At the very least, when excessive use of force is used for purposes of disciplining an inmate, whether or not a correction officers’ actions are within the scope of employment should be considered a material issue of fact left for the fact finder to decide. Classifying actions taken by the correction officer in Rivera as a frolic that is outside the scope of employment may have the unintended consequences of making it harder for victims of excessive force in prisons to prevail against the State and recover monetary damages. Allowing the State off the hook in terms of liability for its employees is ultimately dangerous because it takes away an incentive to ensure that environments in correctional facilities are safe for those in their custodial care.




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