1L TORTS: IMMUNITIES SPRING 2011

(1) Family based

• (a)
• Spousal

(b) Parental

(2) Charitable

(3) Governmental

recover from spouse.

G.R.—parents are immune in tort to their children who are minors or unemancipated

• I)
• Exceptions—
• If child is under 18… can sue parent for:

(1) Negligent operation of a motor vehicle

(a) Motor vehicle includes cars, boats, motorcycles, and ATVs.

(2) Intentional, malicious conduct (IE sexual abuse)

(3) Interference with property rights of child

II) Once 18 or emancipated, a child can sue parent and the parent is no longer immune.

GR: charitable organization NOT immune; charitable immunity abolished in NC

III)Volunteers of a charitable organization are immune if acting in good faith and under the guide of organization unless:

• (1)
• Volunteers
• are not paid employees. Instead they typically do not receive compensation for
• their services.

• (2)
• Exceptions:

(a) Negligent operation of motor vehicle

(b) Any intentional torts/wrongdoing

(c) Gross negligence

• (d) Pro Bono/Professional
• services (pro bono--atty)

• Public Duty Rule—a municipality is not liable for
• the failure to provide police protection to SPECIFIC individuals but only the
• public at large, UNLESS:

• (i)
• A special
• relationship between the police and victim

• 1.
• Special
• Relationship between police and victim—informers, undercover agents, persons
• under court orders of protection, school children with municipality providing a
• crossing guard.

• (ii)
• Special duty created between police and victim by promise

• 1.
• Actual
• promise by police to protect a particular person

• 2.
• Victim
• reasonably relied upon the promise

• 3.
• Fails to protect individual

• 4.
• Reliance was
• causally related to the injury suffered by victim

• 1.
• Governmental function—activities
• for the public at large, ordinarily carried out by gov’t, act is discretionary= immunity

• 2.
• Proprietary—gov’t
• acting in a private capacity for profit; activities a private corporation could
• do. Tends to be for profit, à no immunity something not sanctioned by the legislature, and
• something someone else could do just as well. Ex—coliseum, public housing, golf course.

• G.R.—the mere act of purchasing liability insurance operates as a waiver to
• governmental immunity effective up to the level of coverage.
• When there is liability insurance, the
• governmental and proprietary distinction no longer matters.

• Under
• the NC Tort Claims Act, the state government entities is NOT liable and
• immune for tort actions UNLESS based on NEGLIGENCE.

• (i)
• Waiver is for
• negligence only. Immune from intentional torts

• (ii)
• All
• negligence defenses apply.

• 1.
• Claim must negligence based—cannot be intentional

a. P can only sue the agency, not the employee under this Act…

b. 2 avenues to show negligence of the state:

• i. Respondent superior—negligent act by the state employee: employee was within scope of
• employeeà negligence is imputed upon the state

• ii. Dangerous condition that was negligently addressed—(ie NCU failing to fire professor
• committing sexual harassment)

• 2. Employee within scope of employment?--> respondent superior concept so negligence
• is imputed in the state//State aware of dangerous condition?

• (iv)
• Procedure:

• 1.
• Industrial
• Commission--Claim is heard by
• 1 officer—then can appeal to full commission and then appeal to Court
• of Appeals. Must identify the agency in the complaint.

• (v)
• Damages:

• 1.
• Entity
• itself pays first $150,000…
• then the state pays the rest… but there is a cap of 1 million for judgment
• no matter how many P there are

• 2.
• No
• punitive damages

• Under the Federal Tort Claims Act the federal
• government is liable in tort except to the extent it has retained immunity.

• (i)
• Retain immunity for:

• 1.
• Transmission
• of mail; failure to deliver mail

• 2.
• Taxes and
• fiscal operation of the Treasury

• 3.
• Claims
• arising out of Intentional Torts

• 4.
• Military

• 5.
• Discretionary Functions—
• a.
• Employee acting w/i scope of employment.

• b.
• 1- Actions taken must be discretionary; a matter
• of choice?

• c.
• Conduct was grounded in political, social, &
• economic goals and not the kind
• designed to be shielded

• (b)
• Procedural
• requirements:

• (i)
• Must be a
• Federal claim

• (ii)
• Employee
• acting w/i scope of employment

• (iii)
• Person
• seeking recovery must first exhaust agency remedies by presenting claim to the “proper federal agency”

• (iv)
• Claim must be filed in US District court where P resides or where cause of action
• arose

• (v)
• Tried by a judge

• (vi)
• Attorney’s
• contingent fee is subject to express regulation

• (c)
• No
• punitive damages awarded

Individuals are provided immunity depending on the level of status held in the government

• (a)
• ABSOLUTE: Legislatures, executive officials, and
• judicial officials: judges,
• members of Congress, President, and governor=qualified à Absolute—immune for acts done within the scope of employment.

• (b) QUALIFIED:
• Public officials who are

(i) Engaged in discretionary acts AND

• (ii) Acting within the scope of employment
• (not intentional/malicious)

NO IMMUNITY: Mere employee

• (a)
• Officials=Immune.
• (i)
• Have discretionary
• power.

• (ii)
• Has to take
• an oath
• of office.

• (iii)
• Position
• created by statute.