In a set of consolidated cases, the Sixth Circuit Court of Appeals granted some relief against a county mortuary employee who sexually abused dead bodies at the mortuary over a period of 25 years.
While admittedly under the influence of alcohol and/or drugs, Kenneth Douglas sexually abused "an untold number" of dead bodies at the Hamilton County Morgue in Cincinnati between 1982 and when he was finally caught in 2007. The plaintiffs -- relatives of three of the deceased whose bodies Douglas abused -- sued Douglas as well as Hamilton County.
The case against the county therefore centers around what Douglas' supervisors knew or should have known. How much should they have known? Apparently, a lot. Douglas' supervisor knew or should have known about his alcohol use because Douglas drank at work; he also knew that Douglas had sex with live women at the morgue, "something he apparently did with some frequency."
No State Immunity on State Law Claims
Hamilton County brought up two state statutory immunity claims for claims levied by two of the three plaintiffs. On one theory of immunity found in Ohio Revised Code § 2744.03(A)(3), the county claimed it couldn't be sued because political subdivisions can't be sued for the actions of employees who exercise policymaking discretion. That's not really germane here, said the court, because Douglas's supervisors weren't engaging in policymaking when they made the decision to hire Douglas.
Nor could the county use a separate grant of immunity to avoid liability either. Ohio Revised Code § 2744.03(A)(5) grants immunity to a political subdivision unless it acted recklessly or intentionally. The court was quite persuaded (and aren't you, too?) that the county acted recklessly by continuing to employ Douglas even though his supervisor "knew that Douglas was an alcoholic and knew that he drank and had sex while on duty at the morgue." As to state immunity, it's not necessary that the county acted recklessly with respect to the specific act of having sex with a corpse, but only that it "disregarded a risk that Douglas would harm the bodies in some way."
State Gets Summary Judgment on Due Process Claims
The district court granted summary judgment by way of qualified immunity to the county on a Section 1983 due process claim. Only acts that "shock the conscience" can present cognizable claims for deprivation of a constitutional right; here, for the state to be liable, it must have known about Douglas's acts but did nothing.
Taking into account what the supervisors knew, the court could not say that drinking on the job or having sex with living women on the job would create a substantial risk of necrophilia, which shocks the conscience in a way that merely harming the bodies wouldn't. Consequently, the court affirmed summary judgment for the county on the section 1983 claim.
- Ohio morgue attendant Kenneth Douglas admits to sex with 3 female corpses but total may hit 100 (The Associated Press)
- Ohio AG Just Told SCOTUS That His State's Law is Stupid (FindLaw's U.S. Sixth Circuit Blog)
- Court Denies Qualified Immunity to Prison Nurses (FindLaw's U.S. Eighth Circuit Blog)
- Spend more time practicing and less time advertising. (FindLaw Lawyer Marketing)