1L TORTS: IMMUNITIES SPRING 2011

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jesdixon
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82960
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1L TORTS: IMMUNITIES SPRING 2011
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2011-08-30 18:06:36
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1L TORTS IMMUNITIES SPRING
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TORTS: IMMUNITIES SPRING 2011
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  1. WHAT ARE THE TYPES OF IMMUNITIES:
    (1) Family based

    • (a)
    • Spousal

    (b) Parental

    (2) Charitable

    (3) Governmental
  2. SPOUSAL IMMUNITY
  3. spouses are not immune in tort to a spouse; can
    recover from spouse.
  4. PARENTAL IMMUNITY
    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.
  5. CHARITABLE IMMUNITY
    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)
  6. MUNICIPALITIES

    PUBLIC DUTY RULE
    • 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
  7. MUNICIPALITIES

    GR ABOUT LIABLITY
    • 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.
  8. STATE IMMUNITY AND PROCEDURE
    • 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
  9. FEDERAL GOV'T IMMUNITY AND PROCEDURE
    • 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
  10. PUBLIC OFFICIAL IMMUNITY
    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.

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