TORTS II OUTLINE
Spring 2005 Pittman
Chapter 12 IMMUNITY:
(D) State and Local Governments
· There is no duty owed to an individual, but it is owed to the community at large
· For a duty to exist, there must be some sort of undertaking to help the citizen and a reasonable reliance by the citizen.
· 1) Undertaking
· 2) Failure to perform the undertaking increased the risk of harm to the plaintiff.
To sue a state gov’t ask:
· Has the gov’t abrogated immunity
Is there a duty: Was there an undertaking
There is immunity for discretionary functions, but not for ministerial:
· Discretionary Functions: decisions the gov’t makes regarding policy
· Ministerial Functions: those that implement or effectuate the policies
o ex. where to put traffic lights: discretionary
o maintenance of the traffic lights: ministerial
(E) The United States
· The federal gov’t uses the same Ministerial v. Discretionary determination.
o Definition of Discretionary: The conduct must be grounded in social, political, and economic goals.
· 1946: FTCA- Federal Tort Claims Act: Congress abrogated federal government immunity. There are many specific rules
· Must bring it in federal Court, atty fees are limited 25% if a verdict or settlement after commencement of the action, and 20% if there is a settlement before commencement.
· For negligence actions, you must sue under the law in the jurisdiction where the damages occurred and the federal gov’t will be liable as if it was a person, limited to many rules and exception.
· you can sue the federal gov’t for negligence, but not for an intentional tort unless committed by a law enforcement person.
· Also, you cannot sue the federal gov’t under the theory of strict liability
· If you have a claim against an employee under the FTCA, then you must sue the gov’t not the employee. I.E. it makes the employee immune.
· Exceptions to the FTCA waiver of immunity: Discretionary Functions, Intentional Torts except for law enforcement officers, Combatant activities of the military or naval forces, or the Coast Guard, during the time of war (injured soldier cannot sue the army). There are many more such as delivery of mail, assessment or collection of customs duties, imposition of quaran
ule: Employer is responsible for negligence of an employee committed while
employee is acting within scope of employment.
· Generally, to and from work is NOT w/in scope of employment
· Courts have seized upon idea of “control” as the determinative factor in deciding scope of employment
· If there is NO control (or NO right, opportunity or power to control), then action is NOT w/in scope of employment
· An employer CANNOT insulate himself by:
1. imposing safety rules, or
2. instructing employees to be careful
· Control theory: employer liability whenever the act of the employee was committed w/ the implied authority of the employer
· Enterprise Liability theory: employer liability whenever the employee was furthering the interests of the employer.
1. The employer has the power and money to handle liability and/or get insurance
The employer can pass the cost on to the customers.