immunity from liability chapter 9. copyright © 2007 thomson delmar learning objectives describe the...
TRANSCRIPT
Copyright © 2007 Thomson Delmar Learning
Objectives
• Describe the history and current status of sovereign immunity as it applies to the American fire service.
• Explain purpose of tort claims acts.
• Explain statutory immunity and how it differs from sovereign immunity.
Copyright © 2007 Thomson Delmar Learning
• Explain difference between discretionary acts and functionary acts, governmental function and proprietary function, and how the difference impacts immunity.
• Describe whom the Volunteer Protection Act of 1997 applies to, and its immunity protection.
Objectives
Copyright © 2007 Thomson Delmar Learning
• Explain public duty doctrine, special duty exception, and insurance waiver doctrine.
• Explain limitation on immunity protection for acts of gross negligence, recklessness, or intentional acts.
Objectives
Copyright © 2007 Thomson Delmar Learning
Sovereign Immunity
• Common law rule
• All levels of government had absolute immunity from liability
• Eroded through court decisions and legislative action
Copyright © 2007 Thomson Delmar Learning
Tort Claims Acts
• Passed by all states and Congress
• Purpose – To make government more accountable– To be fair to citizens who may be injured by
governmental actions and employees
Copyright © 2007 Thomson Delmar Learning
• Three functions
1. Establish governmental liability
2. Establish a procedure for filing claims
3. Reserve some limited area where immunity protection remains
Tort Claims Acts
Copyright © 2007 Thomson Delmar Learning
• Distinctions– Discretionary acts
• Matters of public policymaking
– Functionary acts• Carrying out established policy
Tort Claims Acts
Copyright © 2007 Thomson Delmar Learning
• Confusion over immunity is related to– Questions about what is a discretionary act– Questions about what is a functionary act
Tort Claims Acts
Copyright © 2007 Thomson Delmar Learning
• Some courts liberally interpret discretion– Driving a police car = discretion = immunity– Closing a jail cell door = discretion = immunity– Placement of fire apparatus = discretion =
immunity– Whether a fire is out or not out = discretion =
immunity
Tort Claims Acts
Copyright © 2007 Thomson Delmar Learning
• Public or governmental function– A function not normally done by a private party
• Police and fire• Public health
– Immunity protection exists in some states only for governmental functions
Tort Claims Acts
Copyright © 2007 Thomson Delmar Learning
• Proprietary Function– Commonly done by private enterprise
• Swimming pool, parking garage, golf course• Driving vehicles
– Some states do not provide immunity when government acts in a proprietary function
Tort Claims Acts
Copyright © 2007 Thomson Delmar Learning
Statutory Immunity
• Statutes that provide immunity to:– Certain professionals and organizations
• Firefighters, fire departments
– Certain activities• People who render aid gratuitously• Good Samaritans
• Laws vary greatly from state to state
Copyright © 2007 Thomson Delmar Learning
Volunteer Protection Act
• 1997 federal legislation
• Provides immunity for people who volunteer for state and local governments, or a charitable organization
• Provides no protection to the organization
Copyright © 2007 Thomson Delmar Learning
Volunteer Fire Companies
• Private nonprofit corporations
• Immunity status is dependent upon state law– National Passenger Railroad Corporation v. Catlett
Volunteer Fire Company, 241 Va. 402, 404 S.E.2d 216 (VA, 1991)
Copyright © 2007 Thomson Delmar Learning
Limitations on Immunity
• Gross negligence, recklessness, or intentional acts
• Insurance waiver
• Special duty exception
Copyright © 2007 Thomson Delmar Learning
Special Duty Exception
• Some states will only find a governmental actor liable if – Government owes a person a “special duty”
• Special duty– Greater than that owed to the general public due to
some action by the government that the person relies upon
Copyright © 2007 Thomson Delmar Learning
• Example – Person calls for ambulance and is assured an
ambulance is dispatched
• Person calls back several times to confirm and is told ambulance is on the way
Special Duty Exception
Copyright © 2007 Thomson Delmar Learning
• In reliance on the statements of the dispatcher– Caller does not transport victim to the hospital
Special Duty Exception
Copyright © 2007 Thomson Delmar Learning
• Many states recognize a flip side to the special duty exception that protects the state and municipalities from tort liability
Special Duty Exception
Copyright © 2007 Thomson Delmar Learning
Public Duty Doctrine
• Absent a special duty to the victim– No liability– Public duty that a governmental actor owes to the
public at large is not enough to create liability
Copyright © 2007 Thomson Delmar Learning
Summary
• Sovereign immunity
• Tort claims acts
• Statutory immunity