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Possible Bases for Liability: Negligence Under State Law

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

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Possible Bases for Liability: Negligence Under State Law

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  1. 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

  2. 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?

  3. 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?

  4. 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?

  5. 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?)

  6. 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)?

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