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Exercise Waiver Liability Claim - PowerPoint

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					    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
     • Duty?
     • Breached duty; injury;
     • Causation (actual and proximate)
• Defenses?
• Liability?
     • Suit v. government
     • Suit v. individual
        Suits v. Government
• Basic theory: respondeat superior
• Defenses against respondeat superior
  claim
  – Was employee acting with scope of
    employment?
  – Was employee an “employee” or independent
    contractor?
  – 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?
• Tests
      •   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?
      Alternative approaches
• 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)?

				
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