05/02/2012 06:07 pm ET Updated Jun 30, 2012

'Deliberate Indifference' May Impose Liability

On Monday, April 30 the U.S. Supreme Court declined to review a Ninth Circuit decision that allowed an inmate to sue the Los Angeles County Sheriff for injuries received while confined, under a theory of "deliberate indifference." While technically not establishing a precedent, Supreme Court watchers tend to infer the Court's attitude on an issue when it declines to review the decision of a lower court. However, one must proceed carefully in ascribing weight to a failure to review.

The Ninth Circuit in a 2:1 2011 decision allowed this inmate's civil rights lawsuit to proceed (Starr v. Baca). The Court's opinion contained an extended discussion of the pleading requirements to sue. The broader implication of the decision was the statement that "a claim of unconstitutional conditions of confinement, unlike a claim of unconstitutional discrimination, may be based upon a theory of deliberate indifference... Thus, when a supervisor is found liable based on deliberate indifference, the supervisor is being held liable for his or her own culpable action or inaction, not held vicariously liable for the culpable action of his or her subordinates."

While this decision strictly applies only to governmental officials, it is another reminder to private sector executives that a deliberately indifferent failure to act is also a type of action. In the context of a workplace death, the U.S. Attorney's Criminal Resource Manual standards state: "Indifference to general safety or to a specific hazard can also be evidence of intentional disregard of or plain indifference to the requirements of the law." Consequently, an executive cannot expect to defend against litigation based upon the assertion that she or he did not personally cause the injury. Deliberate indifference to legal requirements or to a subordinate's actions may impose liability.