immunity from liability chapter 9. copyright © 2007 thomson delmar learning objectives describe the...

Immunity from Liability

Chapter 9

Copyright © 2007 Thomson Delmar Learning

Objectives

• Describe the history and current status of sovereign immunity as it applies to the American fire service.

• Explain purpose of tort claims acts.

• Explain statutory immunity and how it differs from sovereign immunity.


• Explain difference between discretionary acts and functionary acts, governmental function and proprietary function, and how the difference impacts immunity.

• Describe whom the Volunteer Protection Act of 1997 applies to, and its immunity protection.

Objectives


• Explain public duty doctrine, special duty exception, and insurance waiver doctrine.

• Explain limitation on immunity protection for acts of gross negligence, recklessness, or intentional acts.

Objectives


Sovereign Immunity

• Common law rule

• All levels of government had absolute immunity from liability

• Eroded through court decisions and legislative action


Tort Claims Acts

• Passed by all states and Congress

• Purpose – To make government more accountable– To be fair to citizens who may be injured by

governmental actions and employees


• Three functions

1. Establish governmental liability

2. Establish a procedure for filing claims

3. Reserve some limited area where immunity protection remains

Tort Claims Acts


• Distinctions– Discretionary acts

• Matters of public policymaking

– Functionary acts• Carrying out established policy

Tort Claims Acts


• Confusion over immunity is related to– Questions about what is a discretionary act– Questions about what is a functionary act

Tort Claims Acts


• Some courts liberally interpret discretion– Driving a police car = discretion = immunity– Closing a jail cell door = discretion = immunity– Placement of fire apparatus = discretion =

immunity– Whether a fire is out or not out = discretion =

immunity

Tort Claims Acts


• Public or governmental function– A function not normally done by a private party

• Police and fire• Public health

– Immunity protection exists in some states only for governmental functions

Tort Claims Acts


• Proprietary Function– Commonly done by private enterprise

• Swimming pool, parking garage, golf course• Driving vehicles

– Some states do not provide immunity when government acts in a proprietary function

Tort Claims Acts


Statutory Immunity

• Statutes that provide immunity to:– Certain professionals and organizations

• Firefighters, fire departments

– Certain activities• People who render aid gratuitously• Good Samaritans

• Laws vary greatly from state to state


Volunteer Protection Act

• 1997 federal legislation

• Provides immunity for people who volunteer for state and local governments, or a charitable organization

• Provides no protection to the organization


Volunteer Fire Companies

• Private nonprofit corporations

• Immunity status is dependent upon state law– National Passenger Railroad Corporation v. Catlett

Volunteer Fire Company, 241 Va. 402, 404 S.E.2d 216 (VA, 1991)


Limitations on Immunity

• Gross negligence, recklessness, or intentional acts

• Insurance waiver

• Special duty exception


Special Duty Exception

• Some states will only find a governmental actor liable if – Government owes a person a “special duty”

• Special duty– Greater than that owed to the general public due to

some action by the government that the person relies upon


• Example – Person calls for ambulance and is assured an

ambulance is dispatched

• Person calls back several times to confirm and is told ambulance is on the way



• In reliance on the statements of the dispatcher– Caller does not transport victim to the hospital



• Many states recognize a flip side to the special duty exception that protects the state and municipalities from tort liability



Public Duty Doctrine

• Absent a special duty to the victim– No liability– Public duty that a governmental actor owes to the

public at large is not enough to create liability


Summary

• Sovereign immunity

• Tort claims acts

• Statutory immunity


• Volunteer protection act

• Limitations on immunity

• Public duty doctrine

Summary

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