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
• Breached duty; injury;
• Causation (actual and proximate)
• Suit v. government
• Suit v. individual
Suits v. Government
• Basic theory: respondeat superior
• Defenses against respondeat superior
– Was employee acting with scope of
– Was employee an “employee” or independent
– Is there governmental immunity?
– Is employee/official acting as agent for state?
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?
• Who traditionally performs function?
• Is fee charged for service?
• Who is primary beneficiary?
• Public policy considerations?
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?
• 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?)
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)?