1L TORTS: IMMUNITIES SPRING 2011
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WHAT ARE THE TYPES OF IMMUNITIES:
(1) Family based
spouses are not immune in tort to a spouse; can
recover from spouse.
G.R.—parents are immune in tort to their children who are minors or unemancipated
- 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.
malicious conduct (IE sexual abuse)
(3) Interference with property rights
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:
- are not paid employees. Instead they typically do not receive compensation for
- their services.
(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
- 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:
- A special
- relationship between the police and victim
- Relationship between police and victim—informers, undercover agents, persons
- under court orders of protection, school children with municipality providing a
- crossing guard.
- Special duty created between police and victim by promise
- promise by police to protect a particular person
- reasonably relied upon the promise
- Fails to protect individual
- Reliance was
- causally related to the injury suffered by victim
GR ABOUT LIABLITY
- Governmental function—activities
- for the public at large, ordinarily carried out by gov’t, act is discretionary= immunity
- 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.
STATE IMMUNITY AND PROCEDURE
- the NC Tort Claims Act, the state government entities is NOT liable and
- immune for tort actions UNLESS based on NEGLIGENCE.
- Waiver is for
- negligence only. Immune from intentional torts
- negligence defenses apply.
- 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?
- 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.
- 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
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.
- of mail; failure to deliver mail
- Taxes and
- fiscal operation of the Treasury
- arising out of Intentional Torts
- Discretionary Functions—
- Employee acting w/i scope of employment.
- 1- Actions taken must be discretionary; a matter
- of choice?
- Conduct was grounded in political, social, &
- economic goals and not the kind
- designed to be shielded
- Must be a
- Federal claim
- acting w/i scope of employment
- seeking recovery must first exhaust agency remedies by presenting claim to the “proper federal agency”
- Claim must be filed in US District court where P resides or where cause of action
- contingent fee is subject to express regulation
- punitive damages awarded
PUBLIC OFFICIAL IMMUNITY
Individuals are provided immunity depending on the level of status held in the government
- 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.
(i) Engaged in discretionary acts AND
- (b) QUALIFIED:
- Public officials who are
NO IMMUNITY: Mere employee
- (ii) Acting within the scope of employment
- (not intentional/malicious)
- Have discretionary
- Has to take
- an oath
- of office.
- created by statute.
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