Government Immunity Flashcards
General Rule Regarding Governmental Agency
Unless an exception applies, a governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function.
General Rule regarding liability of officer, agencys, employees, volunteers of governmental agency
These individuals are immune from tort liability if the injury occurred in the course of employment or service so long as all of the following are met:
(1) The officer, employee, member, or volunteer is acting or reasonably believes he or she is acting within the scope of his or her authority
(2) The governmental agency is engaged in the exercise of discharge of a governmental function.
(3) The officer’s, employee’s, member’s, or volunteer’s conduct does not amount to gross negligence that is the proximate cause of the injury or damage.
Gross Negligence - means conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.
THE TAKEAWAY :)
The government agency is generally immune. The government employee is immune unless the plaintiff can prove gross negligence. This is a high bar and plaintiff usually loses!
Medical Treatment Exception
In general, employees or agents that provide medical care (e.g. a university hospital) are NOT immune
Except medical care or treatment provided to a patient in a hospital owned or operated by the defendant of community health or department of corrections, and except for care provided by an uncompensated search and rescue operation medical assistant or tactical operation medical assistant.
Public Official Exception
A judge, a legislator, and the elective or highest appointive executive official of all levels of government are immune from tort liability for injuries to persons or damages to property if he or she is acting within the scope of his or her judicial, legislative, or executive authority.
Guardian ad Litem Exception
A guardian ad litem is immune from civil liability for an injury to a person or damage to property if he or she is acting within the scope of his or her authority as guardian ad litem.
Special Relationship Doctrine between pltf and officer Exception
Pltf must show
(1) an assumption by the municipalty, through promises or actions, of an affirmative duty to act on behalf of the injured party
(2) knowledge on the part of the municipality’s agent (the police officer) that inaction could lead to harm.
(3) Some form of direct contact between the municipality’s agents and the injured party.
(4) That party’s justifiable reliance on the municipality’s assumption of duty
The “Pothole” exception
aka the Highway exception
highway = any public road
must maintain highway in reasonable repair so that it is reasonably safeand convenient for public travel. A person who sustains an injury due to a highway that is not in reasonable repair may recover damages suffered.
The duty only extends to the improved portion of the highway designed for vehicular travel and does not include sidewalks, trees, utility poles, crosswalks, or any other installation outside the improved portion of the road designed for vehiclur travel.
Crt of appeals held that gravel on highway is not roadway defect. They stated that there is no general duty to keep the roadway safe nor is there a duty to improve or expand safety.
Defects in sidewalk exception
Local municipalities are liable for defects in sidewalk.
The plaintiff must prove that they knew or should have known at least 30 days before the injury, of the existence of the defect in the sidewalk.
(a) Municipalities are presummed to have maintained the sidewalk or (b) a dangerous condition in the sidewalk itself of a particular character other than solely a vertical discontinuity.
Notice and Knowledge
for Defective Highways
Knowledge - not liable unless the government knew of should have known of the defect and had a reasonable time to repair it.
Knowledge of the defect and time to repair is conclusively presumed when the defect existed so as to be readily apparent to an ordinary observant peron of 30d or longer before the injury took place
Notice - serve w/in 120d from the time the injury occured. 180 hr if minor child or disability.
Notice should include (1) the exact location and nature of defect, (2) the injury sustained, (3) the names of the witnesses known at the time by the claimant.
Public Building Defect
Gen Rule - Government agencies have the obligation to repair and maintain public buildings under their control when open for use by members of the public.
must have actual or constructive knowledge of defect and failed to remedy it or take reasonable necessary action within a reasonable time.
knowledge is presummed when the defect is apparent to an ordinary person for a period of 90 days or longer before the injury took place.
injured party must serve notice on the responsible agency within 120d from the injury.
the notice shall speficy the exact location and nature of the defect, the injury sustained and the names of the witnesses known at the time by the claimant.
Government Owned Vehicles
Liability for Negligent Operation
Governmental agencies shall be liable for bodily injury and property damage resulting from the negligent operation by an officer, agent, or employee of the governmental agency, of a motor vehicle of which the governmental agency is owner.
Sewage Disposal Exception
A governmental agency is immune from tort liability for the overflow or backup of a sewage disposal system unless the overflow or backup is a sewage disposal system event. The statute defines “sewage disposal event” as “the overflow or backup of a sewage disposal system onto real property.”
