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)?