1. Immunity from Liability Chapter 9

2. 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.

3. 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

4. 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

5. 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

6. 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

7. 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

8. Copyright © 2007 Thomson Delmar Learning Distinctions –Discretionary acts Matters of public policymaking –Functionary acts Carrying out established policy Tort Claims Acts

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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)

16. Copyright © 2007 Thomson Delmar Learning Limitations on Immunity Gross negligence, recklessness, or intentional acts Insurance waiver Special duty exception

17. 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

18. 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

19. Copyright © 2007 Thomson Delmar Learning In reliance on the statements of the dispatcher –Caller does not transport victim to the hospital Special Duty Exception

20. 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

21. 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

22. Copyright © 2007 Thomson Delmar Learning Summary Sovereign immunity Tort claims acts Statutory immunity

23. Copyright © 2007 Thomson Delmar Learning Volunteer protection act Limitations on immunity Public duty doctrine Summary