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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)?