Torts Ii

Front 1

Immunities

Back 1

Being free from liability. Why would be free someone from liability? Demurer- the legal equivalent to “so what” that law protects me, immunity is similar. The law protects from spousal immunity for policy reasons. Don’t get caught up on the facts. Focus on why we shut down the cause of action, or why don’t we recognize this as an immunity anymore.

Front 2

Immunities:

Families- Interspousal

Back 2

 Theory of Neg brought by the husband against the wife.
 The Attorney of the wife says she has spousal immunity.
 Insurance money involved so she may not personally upset because he can sue her and they both can collect
 The insurance company says she is not liable and we do not have to pay
 P’s counsel said it should not be dismissed because the reason for spousal immunity at common law are no longer valid. Interspousal in personl injury has been abandoned.

Front 3

Immunities:

Parent-child

Back 3

 A child is suing her mother. How does the mom respond to the lawsuit? She wants it dismissed under parent child immunity. We know that it exists in this jurisdiction.
 There are two exceptions: malicious behavior, business partners
 The court states that parent child immunity exists and it is more prevelant than spousal immunity
 Notes: pg 621 3- Partial Abrogation, most states developed one or more exceptions to the general rule when they believed that the policies supporting it were inapplicable or were outweighted by the benefit of allowing a tort claim

Front 4

Charitable immunity

Back 4

why would be we want to protect the charitable immunity? Because they are providing a valuable service and for a good public policy to promote giving to others and if you don’t protect them that would not be good. You want to encourage them to provide those services. They are doing the work that somebody else does not want to do. If we stop that it would cause those nice services to fall away. This would mean that the people they serve would no longer need service.

Front 5

Charitable immunity:

Example

Back 5

Abernathy v. Sisters of St. Mary’s
 Why should we sue? They are big business and they could handle an lawsuit, insurance, ect.
 It makes the accountable this is the big one. Knowing that you won’t be held liable encourages certain kind of conducts. The chartable immunities. We can do what ever we want to whom ever we want. Now we have swayed it and it has gone the other way. It has been abolished in all circumstances and is no longer recognized.

Front 6

Government immunity

Ayala v. Philly

Back 6

 This deals with governmental immunity. Why would we want to protect the government from liabilities? Because they provide so many services that there would be no end to their liability.
 Some jurisdictions have done away with all governmental immunities. Because now they can purchase insurance. To find out how responsible our government is going to be.

Front 7

Government Immunity:

No Duty Protection

Back 7

 She files a suit against the police for failing to act reasonably under the circumstance. Is there any discussion of immunity?
 They claim that they don’t have the resources and that they have no duty.
 This is a No Duty Protection- what the state could also raise that they were immune in addition to the fact that there was no duty.
 There was no duty owed to her because it would be impossible to provide resources to everyone else, they never assumed the responsibility.
 We need to remove the protection that had previously been given to them. What duty rule can we articulate to provide protection in this case? The ideas were all shot down, and the courts determined that there was not duty at all

Front 8

Government Immunity:

Duty to protect

Back 8

Delong v. Erie
 They created a relationship with her when she made the call.
 It was the collection of the 911 call and the representation that we will be right there created a duty where by they would be held liable. Weather or not they acted reasonably is now up to the jury because the courts concluded that there was now a duty that was to be owed.
 The difference between Riss and Delong is that there was a duty in Delong. There was not a duty established in Riss
 Duty is an independent aspect of Neg. It is a question of law largely influenced by policy concerns. The court is saying that they did have a duty to act on that responsibility.

Front 9

The United states Immunity:

Deuser v. Vecera

Back 9

 Why was he taken into custody? He was drunk and peeing in public.
 He wasn’t arrested and let go and he was killed.
 The survivors were suing the govt. What was the wrong? The thought is they were negligent in letting him go while he was intoxicated.
 The Govt says that they were immune from the lawsuit because it was a discretionary decision.
 Why would legislatures go from total protection to not allowing themselves to be sued.
 Assuming that there was a wrong and the employee was working within the scope of employment under the federal tort claims act.
 We need to be aware of the exception to liability and the difference between non ministerial and ministerial acts. Discretionary acts are non ministerial The govt is saying that we are going to recognize a certain amount of protection. When the govt has performed an act even tho it was discretionary if they had the right to make a choice there is immunity for a non ministerial act.
 The allegation is that you should have kept me in custody. The govt says the decision to let you go was a discretionary choice.
 When someone argues for a discretionary immunity the court first looks at the act to see if in fact it was discrectionary. The next Q is, focuses on society that is this an issue that we want to consider discretionary. The officers should not be required to take everyone into custody that they think should be in custody. This is too expensive and involves a great deal of time.
 There is no liability under the Federal Torts claims act because it falls under a discretionary act.

Front 10

What are the two types of Government Immunities?

Back 10

Two Types of Govt Immunity
 Absolute- as long as the conduct is within the scope of employment. The high ranking federal officials, president, congressman, even high ranking state officials. It is given and extended by the state.
 Qualified- it is limited and qualified and you are going to be immune if the act was discretionary i.e. a non-ministerial act. This is also given by the state.