We impose negligence when there is a precaution we want people to take



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Intra-family immunity

  1. Can’t sue members of the nuclear family absent some exception. Parent/child suits:

    1. Foundation case: Hewlett v. George, 9 So. 885 (Miss. 1891). Child couldn’t sue parents after they committed her to an asylum for “loose and immoral practices” in Chicago

    2. But see Dunlap v. Dunlap, 150 A. 905 (N.H. 1930). Infant employee allowed to sue father employer after he had purchased liability insurance in an action arising out of the terms of employment

      1. Retreated from, somewhat, in Levesque v. Levesque, 106 A.2d 563 (N.H. 1954). Gave reasons for the immunity:

        1. Preservation of parental authority and family harmony

        2. Depletion of the family exchequer

        3. Danger of fraud and collusion

    3. General rule in modern times is that blanket form of parental immunity is indefensible, though some disagreement as to what should remove the immunity. Goller v. White, 122 N.W.2d 193 (Wis. 1963)

    4. New York abolished parental immunity for parental negligence in Gelbman v. Gelbman, 245 N.E.2d 192 (N.Y. 1969). Adopted in Restatement (Second) § 895 G

  2. Third party suits. Can a parent be sued for contribution?

    1. Nolechek v. Gesuale, 385 n.E.2d 1268 (N.Y. 1978). Minor was killed when he rode his motorcycle into a steel cable, negligently suspended close to road. D sought contribution from parents who had let their kid ride the bike though he was blind in one eye and did not have a license.

      1. Court allowed contribution by distinguishing between “negligent supervision” and “negligent entrustment”

  3. Husband and wife

    1. Historically, they couldn’t sue each other b/c H and W were considered one person at common law. Also, the doctrine was based on concerns that suits would be made to defraud insurance companies

    2. This rule has been reduced over time

      1. McCullough v. Drake, 24 P.3d 1162 (Wyo. 2001). Claim allowed in “outrageous” cases

Charitable Immunity

  1. Charities were historically immune at common law

    1. Feofees of Hrriot’s Hospital v. Ross, 8 Eng. Rep. 1508

    2. Though overruled in England 20 years later, it was adopted in the U.S. in McDonald v. Massachusetts General Hospital, 120 Mass. 432 (1876)

    3. Abolished in its entirety. Darling v. Charlestown Hospital, 211 N.E.2d 253 (Ill. 1965)

Municipal Corporations

Tort immunity for municipal corps emerged in 18th Century UK for unincorporated townships out of concerns that liability would devolve to individual citizens. The immunity was adopted in the U.S. though the rationale does not really apply.



  1. Rationale for public immunity

    1. Prevent diversion of public assets towards private gain, since municipalities receive no profits from discharging their public duties, so too they should be insulated from economic loss

    2. But three further justifications:

      1. Municipal corporations were not full and complete legal persons (unlike states)

      2. Municipal bodies are not fully voluntary actors since they were under public duties to provide a range of services

      3. Removing tort immunity would embroil the municipalities in endless wrangling which would inhibit their abilities to do their public duties

  2. Exception: Municipal immunity generally only extends to “governmental” functions. Bailey v. City of New York, 3 Hill 531 (N.Y. 1842). Municipalities are treated like private corporations for their “proprietary” functions

    1. e.g., Gretkowski v. City of Burlington, 50 F. Supp. 2d 292 (D Vt. 1998). Maintenance of a park is a “governmental” function and not a “proprietary” function

    2. However, other jurisdictions rely on a “discretionary”/ “operational” distinction. Thus, immunity only extends to municipalities in terms of how they exercise their “discretion”, not in the manner in which they actually operate

      1. Japan Airlines Co. Ltd. v. Port Authority of New York and New Jersey, 178 F.3d 103 (2d Cir. 1999).

        1. Passenger plane was damaged while landing in ice and snow. Claim for negligence rested on runway hazards that had not been cleared away by the Port Authority

        2. Court allowed recovery on the basis that this was a “discretionary” function by the Port Authority; also noted that a “special relationship” existed as b/t the Port Authority and the airline by virtue of the airlines assurances to the airline

          1. “To the extent New York case law immunizes governmental bodies from tort liability for acts of executive discretion, that same case law does not extend such immunity to proprietary functions such as the maintenance of highways and other public facilities.”

          2. RPD: Very consistent with the idea that the more government functions look like private sector functions, the more you should expect to see liability affixed

  3. Constitutional Immunity

    1. 42 U.S.C. § 1983. Imposes Federal liability on anyone who deprives another of their Constitutional rights

    2. Important cases for municipal immunity is Monell v. Department of Social Services of New York City, 436 U.S. 658 (1978). Municipality was a person for purposes of a suit under 42 § 1983.

      1. However, has been subsequently read that the Monell does not extend to hold the state itself liable for the conduct of its officials acting under color of state law. Will v. Michigan Dep’t of St. Police, 491 U.S. 58 (1989)

      2. But, private parties are not entitled to any immunity under § 1983. Wyatt v .Cole, 504 U.S. 158 (1992).

Sovereign Immunity

Nixon v. Fitzgerald, 457 U.S. 731 (1982): denial of absolute presidential immunity from civil proceeding for damages; Mitchell v. Forsyth, 472 U.S. 511, 524-30: denial of qualified immunity asserted by a public official where the issue appealed was whether certain facts constituted a violation of clearly established law.

  1. Traditionally, the “king could do no wrong” – i.e., you couldn’t sue the sovereign w/out the consent of the sovereign

    1. Kawananakoa v. Polyblank, 205 U.S. 349 (1907) (Holmes, J.)

      1. “A sovereign is exempt from suit . . . on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.”

      2. P.S.: Holmes is bad-ass.

  2. Statutorily modified by the Federal Tort Claims Act, 28 U.S.C. §§ 2671 – 2680 in 1946

    1. 28 U.S.C. § 2674: U.S. can be liable “in the same manner and to the same extent as a private individual under like circumstances” but will not be liable for pre-judgment interest

    2. 28 U.S.C. § 2680. Exceptions:

      1. Any claim based on act or omission of a gov’t employee exercising due care in the execution of a statute or regulation (whether or not such statute or regulation be vlaid)

      2. Any claim arising out of transmission of postal/letters

      3. Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, interference with contract rights

  3. The upshot of modern Federal liability is that cases will be reviewed on a case by case basis to determine whether or not they fall within the “discretionary” category and, hence, fall within Federal immunity. Berkovitz v. United States, 486 U.S. 531 (1988)

    1. P contracted polio from a vaccine approved by the government. Court adopted a 3-fold analysis to determine whether or not tort liability for the government was appropriate:

      1. Nature of the conduct (rather than the status of the actor)

      2. Whether the action is a matter of choice for the acting employee (conduct cannot be discretionary unless it retains an element of choice)

      3. Whether that judgment is of the kind that the discretionary function exception was designed to shield (to prevent judicial second guessing of government decisions)

    2. A discretionary function of the Bureau of Biologics (in which it was privileged but not required to inspect vaccines) barred tort liability. Though, there could be liability if the acts complained of do not fall within the exercise of policy discretion

    3. Because the Bureau had adopted a policy of blanket testing of vaccines, there was no discretion to be exercised by the Bureau. Thus, they could be held liable in tort when their testing was deficient.

    4. But lower courts have struggled to develop a consistent definition

      1. Lindgren v. U.S., 665 F.2d 978 (9th Cir. 1982).

        1. P was injured when waterskiing on a river. Claimed gov’t was negligent when it lowered the water level and failed to notify

        2. Court held that this fell within the “discretionary” function of the gov’t

      2. But see Gotha v. U.S., 115 F.3d 176 (3d Cir. 1997)

        1. P slipped and fell on a steep pathway to a Navy facility

        2. Not a discretionary function b/c it involved “a mundane, administrative, garden variety, housekeeping problem that is about as far removed from the policies applicable”

    5. Inspections and screening

      1. C.R..S. v. U.S., 11 F.3d 791 (8th Cir. 1993). P contracted AIDS from transfusion while in National Guard, later passed to his wife and one child. Court held that screening process at time of transfusion and later decision not to notify P that he was at risk fell w/in the discretionary function

      2. Tippett v. U.S., 108 F.3d 1194 (10th Cir. 1997). Gov’t not liable when Yellowstone Ranger directed snowmobilers around moose and a snowmobiler was injured

  4. Misrepresentation

    1. A possible application of the Tort Claims Act is to cases in which Ps rely on government statements to their financial detriment

      1. U.S. v. Neustadt, 366 U.S. 696 (1961). P had no cause of action when he relied on an appraisal made by FHA in order to purchase a house for more than it was worth

      2. Limited by Block v. Neal, 460 U.S. 289 (1983). P did have a cause of action when Farmers Home Administration helped construct Ps house.

  5. Assault and Battery

    1. Sheridan v. U.S., 487 U.S. 392 (1988)

      1. Assault and battery exception barred liability when drunken off duty serviceman fired several shots which injured Ps in their cars

      2. However, government was still liable for the fact that Navy seamen found the drunken guy b/f he went on the spree

        1. “If the Government has a duty to prevent a foreseeably dangerous individual form wandering about unattended, it would be odd to assume that Congress intended a breach of that duty to give rise to liability when the dangerous human instrument was merely negligent but not when he or she was malicious.”

        2. Liability was therefore applied regardless of the scope of employment defense

  6. Injuries attendant to military service

    1. Note: Federal government cannot be liable for injuries sustained in combat related activities. 28 U.S.C. § 2680(j)

    2. Feres v. U.S., 340 U.S. 135 (1950). Recovery denied when P, a soldier, died in a barracks fire as a result of a defective heating unit. Based on:

      1. Statute would make the obligations of a soldier turn on where he was stationed; military law requires uniform rules

      2. Threat of liability would undermine discipline

      3. Comprehensive benefits system for benefits precluded tort liability

    3. Stencel Aero Engineering Corp. v. U.S., 431 U.S. 666 (1977)

      1. Manufacturer sued by a national guard officer could not maintain an action for indemnity or contribution from U.S.

      2. Court applied Feres.

    4. Medical injuries under Feres.

      1. Genesis test: Neither the serviceman nor his dependents can recover for injuries whose origins are in active military service.

      2. Minns v. U.S., 155 F.3d 445 (4th Cir. 1998). Court refused to allow claims for birth defects allegedly arose out of negligent exposure to toxic pesticides or from negligent vaccination incident to the 1991 Persian Gulf War

Official Immunity

  1. Clinton v. Jones, 520 U.S. 681 (1997)

    1. Clinton had sought a postponement of Jones’ sexual harassment claim until he was out of office

    2. Court noted that Presidents are entitled to absolute immunity from damages liability predicated on his official acts. Nixon v. Fitzgerald, 457 U.S. at 749.

    3. However: President can be liable for acts committed out of office. Why?

      1. Immunity only extends to official capacity

      2. Immunity should only extend to particular functions of office. “Petitioner’s effort to construct an immunity from suit for unofficial acts grounded purely in the identity of his office is unsupported by precedent.”

        1. RPD: Interesting, since the court had noted that only 2 other sitting presidents had been the victim of a tort suit. So where is the fucking precedent either way?

      3. Liability in this case will not curtail the power of the Executive Branch

        1. “it is settled law that the separation-of-powers doctrine does not bar every exercise of jurisdiction over the President of the United States” citing Fitzgerald, 457 U.S. at 753-54.

  2. Absolute v. qualified immunity for public officials

    1. Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949) (Hand, J.). Actoin for false arrest brought against U.S. att’y general by a Frenchman who had been detained as a German alien during WWII

      1. Court though it better “to leave underdressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.”

    2. But see Butz v. Economou, 438 U.S. (1978). Defendant must demonstrate subjective good faith in order to win on summary judgment

      1. Hence, D, a cabinet official could be liable for allegedly instituting an investigation against P in retaliation for his criticism of the Dep’t of Agriculture

      2. Note: Such immunities will generally fall under Collateral Order Doctrine

  3. Official immunity for common law torts has also been undermined by Butz.

    1. E.g., Westfall v. Erwin, 484 U.S. 292 (1988): Court held Federal employees could claim immunity only for conduct that was:

      1. Discretionary

      2. Within the scope of their employment

      3. Net effect was to make it difficult for government employees to get summary judgment


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