Possible Bases for Liability: Negligence Under State Law

• Cause of action? Failure to exercise degree of care that reasonable/prudent person would exercise under similar conditions

• Duty? • Breached duty; injury; • Causation (actual and proximate)

• Defenses?• Liability?

• Suit v. government• Suit v. individual

Suits v. Government

• Basic theory: respondeat superior• Defenses against respondeat superior

claim– Was employee acting with scope of

employment?– Was employee an “employee” or independent

contractor?– Is there governmental immunity?– Is employee/official acting as agent for state?

Governmental Immunity: state torts

• Extension of state’s sovereign immunity if providing governmental services (absent waiver) but not if acting in proprietary role

• Agent of the sovereign (state) for general welfare; Discretionary, political, legislative?

• OR acting in corporate capacity? Re property?

• Tests• Who traditionally performs function?• Is fee charged for service?• Who is primary beneficiary?• Public policy considerations?

Examples: Govt. v. Proprietary

• Operation of street lighting?

• Public hospital: transfusion reaction?

• Parks and playgrounds (injury on equip.)?

• Security in courthouse?

• Inspection of meat processing plant?

• Response to 911 calls?

• Neighborhood police/living response?

Alternative approaches

• Tests for governmental immunity?– Discretionary v. ministerial– Planning v. operational

• “Public duty rule”: if a public duty, no duty– Special duty? Or assumed duty?– When applicable? (only police?)

• Operating on behalf of state?• Waiver by purchase of insurance? (up to

level of insurance; what’s insurance?)

Suits v. individuals

• What capacity: official? Or individual?– If injunctive relief, official capacity– If suit for damages:

• Absolute immunity? Legislative (if acting legislatively); Judicial (includes prosecutors?)

• Qualified immunity? (if good faith, discretionary judgments, not corruption, w/in scope of authority)

– If “public official” (legislatively created, oath of office, legally imposed public duties, discretion) (notaries, school principals, chief building inspector, elected)

• Statutory immunity for individuals (police as individuals where taking someone who is drunk to shelter)?