The Nebraska Supreme Court Lets Its Probation Department Off the Hook in Bartunek v. State, 266 Neb. 454, 666 N.W.2d 435 (2003): "No Duty" as a Non-Response to Violence Against Women and Identifiable Victims
Because of the negligent supervision of one of its habitually violent intensive supervision probationers, the State of Nebraska allowed DaNell Bartunek to become the victim of a violent, knife-wielding attempted rape by her former boyfriend. This violent sexual assault followed a pattern of abuse and stalking directed at Bartunek, which the State knew about and had the ability to end by adequately controlling its probationer; however, the State did not intervene before the attack. The Nebraska Supreme Court has now decided that the State will not be held accountable for its lack of supervision and that Bartunek must bear the full cost of her preventable and foreseeable injuries. In Bartunek v. State, the Court missed an opportunity to impose a narrowly defined yet workable duty on the state probation system to act with reasonable care while supervising violent felons on intensive supervision probation (“ISP”). This Note argues that the Court’s rejection of any such duty was incorrect. Part II sets forth the factual background of the Bartunek case and summarizes the disposition of the case in the district court and Nebraska Supreme Court. Part III analyzes the Nebraska Supreme Court’s opinion from social and legal perspectives: section III.A discusses the social context in which Bartunek occurred, and section III.B analyzes opportunities for imposing a duty in Bartunek. This Note presents four constructions of a legal duty to Bartunek, two of which the Nebraska Supreme Court rejected and two of which it failed to discuss. The Bartunek court rejected any duty based on a special relationship between the State and its probationer under section 315(a). It also overlooked a section 315(a) “identifiable victim” duty grounded in Tarasoff v. Regents of the University of California and its progeny. In addition, the Bartunek court rejected any duty based on a special relationship between the State and the victim, and in doing so, the court narrowly interpreted detrimental reliance under section 315(b). The court also overlooked a duty grounded in Brandon v. County of Richardson, based on Bartunek’s aid to the State in reporting violations of probation committed against her. In Part IV I suggest that in a case like Bartunek, several sensible options exist for imposing a narrowly defined legal duty. Such a duty would take account of victim safety issues associated with violent offenders on probation who are also perpetrators of intimate partner violence and whose criminal history and behavior while on probation indicate a propensity for further violence. Because no duty was found in Bartunek, probation officers can continue to act negligently as they supervise high-risk probationers. There is no remedy for victims of this negligent conduct, nor any incentive for probation officers to act reasonably. Finding “no duty” denies that the dynamics of domestic violence, sexual assault, and stalking are not only pervasive cultural problems but also crimes and predictable elements of the behavior of certain probationers. The resulting public policy allows for the reckless, unnecessary endangerment of victims of ISP probationers and is contrary to the intent of the Nebraska Legislature in curtailing state immunity.
Gretchen S. Obrist,
The Nebraska Supreme Court Lets Its Probation Department Off the Hook in Bartunek v. State, 266 Neb. 454, 666 N.W.2d 435 (2003): "No Duty" as a Non-Response to Violence Against Women and Identifiable Victims,
83 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol83/iss1/8