Immunities

Question 1

Generally, what do immunities do?

Answer 1

Immunities protect certain individuals or entities from liability for certain tortious conduct.

Question 2

What was the common law rule for spouse immunity?

Answer 2

At common law, spousal immunity barred actions between spouses.

Question 3

What are the three traditional justifications for common law spousal immunities?

Answer 3

1. Preservation of domestic tranquility
2. Preclusion of fraudulent claims
3. Legal unity of husband and wife

Question 4

What is the modern treatment of spousal immunity?

Answer 4

Spousal immunity is completely abolished in a majority of states. In other states, there are many exceptions, such as intentional or reckless torts, auto accidents, and termination of marriage.

Question 5

What was the common law rule for parental immunity?

Answer 5

At common law, personal injury actions were barred between children and parents.

Question 6

What were the three traditional justifications for the common law rule of parental immunity?

Answer 6

1. Preserve domestic tranquility
2. Preclude fraudulent claims
3. Permit discipline

Question 7

What is the modern treatment of parental immunity?

Answer 7

Parental immunity is abolished in some states. States that have abolished will apply in the instance of discretionary functions (those that involve the care and upbringing of the child). Other states refuse to apply the immunity in cases involving: intentional or reckless torts, death of the parent or child, business activities, and auto cases with or without insurance.

Question 8

What is the general rule for sibling immunity?

Answer 8

Generally, the doctrine of intrafamily immunity does not apply to suits between siblings.

Question 9

What is the general rule for sovereign and governmental immunity?

Answer 9

Sovereign and governmental immunities shield local, state, and federal government from tort claims. There are two types of decisiosn that governments make: discretionary (dealing with policy) and ministerial (flipping the switch). Generally, discretionary functions are immune from tort liability.

Question 10

What is the general rule for sovereign immunity?

Answer 10

Sovereign immunity applies to the federal and state governments. First, it must be determined whether a state law or federal law cause of action exists. Then, an analysis must be completed as to whether an immunity applies.

Question 11

What does the Federal Tort Claims Act do?

Answer 11

The FTCA permits actions for negligence, but bars actions for intentional torts, including misrepresentation, and disallows punitive damages; jury trials; strict liability actions; and pre-judgment interest.

Question 12

What is the procedure for a Federal Tort Claims Act claim?

Answer 12

First, the plaintiff files an administrative claim with the appropriate agency specifying a sum certain of damages; then, the agency has six months to allow or deny the claim; and if denied, the plaintiff may sue in federal district court under the FTCA.

Question 13

How is the tort liability of the US judged? In reference to what?

Answer 13

The tort liability of the US is judged with reference to the tort law of the relevant state. If, under state law, a private actor would have a duty in negligence, then the US has the same duty for negligence purposes.

Question 14

For FTCA, who must commit the tort?

Answer 14

A federal employee acting within the scope of employment

Question 15

What does the feres doctrine do?

Answer 15

The feres doctrine bars claims by active military against the united states

Question 16

When may exemptions to FTCA arise?

Answer 16

Exemotions may arise based on the conduct or cause of action.

Question 17

What are examples of exemptions to FTCA that may arise based on the nature of the conduct?

Answer 17

• Discretionary function or duty
• Combatant actions of the military
• claims arising in a foreign country

Question 18

What are examples of exemptions to FTCA based on the cause of action? Who can be sued?

Answer 18

The individual, but no the US.
* assault, battery
* false imprisonment, false arrest
* malicious prosecution, abuse of process
* defamation
* misrepresentation, deceit
* interference with contract rights
* strict liability (must be proved with negligence)

Question 19

What does the FTCA say about emotional distress of incarcerated felons?

Answer 19

No person convicted of a felony who is incarcerated while awaiting a sentencing or while serving a sentence may bring a civil action against the US or any agency, officer, or employee of the government, for mental and emotional injury suffered while in custody without a prior showing of physical injury.

Question 20

What is the discretionary function exception under the FTCA? How is it analysed?

Answer 20

The discretionary function exception is governed by the nature of the conduct as opposed to the status of the actor. First, examine whether the decisio was a matter of choice. If not, it is a ministerial act, and the exception does not apply. Second, if a choice exists, examine whether the choice is of the kind the exception was intended to shield, in other words, whether it is a decision based on considerations of public policy.

Question 21

What do 1983 actions provide?

Answer 21

1983 actions provide a constitutional tort for deliberate indifference to a plaintiff’s constitutional rights.

Question 22

What are 3 limitations to 1983 actions?

Answer 22

1. If the defendant reasonably misapphrehends the law, the defendant is immune.
2. It does nto hold a sovereign liable, only those individuals acting on behalf of a sovereign.
3. It does not extend to private parties who are acting on behalf of the sovereign, only to public employees.

Question 23

What are the four general take aways for state immunity?

Answer 23

1. Most states have a tort claims act and damages may be capped
2. States cannot be sued in federal court by US or foreign citizens
3. States (not state officials) are immune from 1983 actions
4. Federal law may pre-empt state tort claims

Question 24

What is governmental immunity?

Answer 24

Governmental immunity applies ot municipalities and local governments. Municipal immunity is less robust than state or federal immunity.

Question 25

What are the two general take aways for municipal immunity?

Answer 25

1. Municipal immunities are largely governed by statute and about half of the states have abolished it. Usually, municipalities will be immune to the same extent the state is, and many state immunities follow federal immunities.
2. Municipalities are liable for 1983 actions from official policy or custom.

Question 26

What is the general rule for official immunities?

Answer 26

Official immunities exist to protect the officials and employees of the government.

Question 27

What are the three take aways for federal official immunities?

Answer 27

1. Absolute immunity for discretionary acts
2. Immunity for other negligence actions that occur within the scope of employment
3. Have only qualified immunity with respect to constitutional torts

Question 28

What are the four take aways for state official immunities?

Answer 28

1. High level officials and employees have absolute immunity for actions related to official duties
2. Lower level officials and employees usually have only qualified immunity for discretionary acts
3. Statutory caps may apply
4. Special immunities to protect teachers and others

Question 29

What is the diff between a qualified immunity and an absolute immunity?

Answer 29

Absolute is absolute. qualified only protects when acting reasonably and in good faith.

Question 30

What was the common law rule of charitable immunities? What was the justification?

Answer 30

At common law, personal injury actions were barred against charitable institutions. To avoid discouraging charitable activities or forcing charities out of business.

Question 31

What is the modern trend for charitable immunities?

Answer 31

Today, charitable immunities are abolished in whole or in party in a majority of states. Some charitable immunities have been legislatively restored in recent years.