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Clarke v. Oregon Health Sciences U

Fact
Brief Fact Summary. An infant suffers brain damage from the negligence of a public university hospital’s employees.
Clarke v. Oregon Health Science U

Issue
Issue. Whether the elimination of negligence liability of individual public body medical employees comports with the Oregon Constitution, and specifically its “remedy clause”, which provides that a legislature may not eliminate a remedy entirely that was available at common law?
Clarke v. Oregon Health Science U

Holding
No, reversing the trial court, as the legislature completely eliminated Plaintiff’s preexisting right to obtain a full recovery for severe injury suffered as a result of the individual tortfeasors’ medical negligence (reducing $12 million in damages to $200,000 in damages only).
Oregon Tort claims Act
The Oregon Tort Claims Act (OTCA) was drafted and revised to eliminate entirely any claim against any officer, employee or agent of a public body for their work-related torts
How does NC Tort Claims Act afffect immunity?
Partially waives state's immunity
Which crt is named in the NC Tort Claims Act?
NC Industrial Commission
Who is this crt authorized to hear claims against?
State Board of Educ
Board of Transportation
All other depts, institutions and agencies of the State. -community colleges and technical colleges included
How does this crt determine negligence?
Was there negligence on the part of an officer, employee, invol. servant or agent of the State while acting w/in scope of office, employment, service, agency or authority that was prox cause of injury
and no contrib negl on part of claimant
How does this crt determine damages?
Amount to be paid, including med and other expenses

cannot exceed amts authorized in G.S. 143-299.2 cumulatively to all claimants on account of injury and dam to any one person arising out a single occurrence.
How much does the State gov't of NC pay per cause of action?
The unit employing the employee at time of cause of action pays the first 150,000 of liability. Any balance owed is paid in accordance with G.S. 143-299.4
How is the state's liability for damages affected by insurance coverage?
If the insurance coverage is at least equal to the limits of the State Tort Claims Act, ins. coverage is in lieu of the state's oblig to pay.
How is the N.C. High School Athletic Assoc. affected by this Act?
They are a state agency for purposes of this article. INDEPENDENT CONTRACTORS of the Assoc. are NOT.
What is the NC High School AThletic Assoc required to do re the State Tort claims Act?
Pay the claims through commercial ins. or otherwise

Reimburse the Dept of Justice for defense costs
How is the State Health Plan for Teachers and State Employees affected by the State Tort Claims Act?
They are included in this Act.
What is the maximum amount that the State may pay cumulatively to all claimants on acct of injury and damage to any one person arising out of any one occurrence?
$1,000,000 , less any commercial liability ins purchased by the State that is applicable to the claims.
What if a claim or claims are brought under more than one Article under the State Tort Claims Act?
The maximum liability of the State does not change.
What is the Federal Tort Claims Act?
Claims may be brought agst the US for tortious acts of its employees, when they are acting w/in the scope of employment.

The fed gov't waives immunity to this law.
What are exceptions to the waiver of immunity by the fed gov't to the tort Claims Act?
1. Fed Gov't not liable for Discretionary functions/choices
(element of judgment or choice in employee's decision)
Exceptions to waiver of immunity by fed gov to Fed Tort Claims Act?
2. Feres doctrine

No waiver for claims arising out of or in course of activity incident to active duty service.
Exceptions to waiver of immunity by feds...
3. Public Officials
a. Gov't officials may be personally liable
i. immune in some circumstances
When does the immunity for public officials attach in NC?
1. official engaged in gov't duty involving exercise of DISCRETION.
2. acting w/in scope of official AUTHORITY.
3. NOT for CORRUPT or malicious purpose.
Is public official immunity separate from sovereign immunity?
Yes
If public official immunity is separate from sovereign immunity, how so?
i. various levels of gov't

1. ex. judges, legislators, etc.POI
2. Not for gov't employees
a. BC immunity focuses on nature of the authority - discretionary, judgment
b. NC: police officers, coroners, builidng inspectors, teachers have been held to have POI under certain circumstances.
When would a public official raise the defense of POI?
when sued in his/her individual capacity
how is a suit against an official acting in official capacity treated in NC?
As a claim against the entity that employs the tortfeasor. (ex. State of NC)
What is the extent of POI for the President of the U.S.?
Immune when acting w/in scope of employment.
What is the extent of POI for Pres. Advisers?
Qualified Immunity:
protected from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.
What is the underlying issue of the cases in the Immunities Chapter?
1 Defining whether a duty is owed to the individual P separate from the duty owed to the public
2 If so, what is the scope of the duty?
Facts of Riss v. New York
Atty threatens to maim woman rejecting his advances. She calls police, no help offered. Atty harms her. Police decide she deserves protection after the harm's been done.
Issue of Riss v. New York
What is the liability of a municpality for failure to provide special protection to a member of the public who was repeatedly threatnned w/ personal harm and who suffered due to the lack of protection?
Holding of Riss v. NY
There is no liability, unless the police undertake protection of a particular person(s), fail to carry it out properly, and the threatened harm then results.
Facts of DeLong v. Erie County
Woman calls 911 to report a burglar. She waits for them to arrive and is killed by the burglar. 911 employee wrote down wrong address, did not follow proper identifying procedures during the call, did not follow up properly - call was treated as a fake.
Issue of DeLong case
What is the liability of the city and county when police relied upon a 911 employee's faulty info in protecting this person?
Holding in DeLong case
City and county equally responsible because holding out the 911 no. as a shield of protection constitutes undertaking to provide police protection and due to the failure to properly provide this protection, the threatened harm resulted.
What makes the difference between a general duty to the general duty v a duty to protect a particular person/individual?
Creation of a special relationship to protect waives the immunity. P must still show that reliance on that duty increased the risk of harm/caused the harm.
Freehe v. Freehe

Facts
P injured on tractor owned by wife's business.
Freehe v. Freehe

Issue
Interspousal immunity
Freehe v. Freehe


Holding
There is no longer any compelling rationale for supporting immunity as a defense for torts committed between spouses.
Zellmer v. Zellmer

Facts
3 yr. old drowned in backyard swimming pool while under care of stepfather.
Zellmer v. Zellmer

Issue
Parental Immunity as a defense for a step-parent
Zellmer v Zellmer

Holding
Parental Immunity shields stepparent same as a biological or adoptive parent, so long as the stepparent stands in loco parentis to the child. PI precludes libility for negl supervision but not for wanton or willful failure to supervise.
Braswell v Braswell

Facts
Woman fatally shot by estranged husband who was a deputy sheriff. Estate sued sheriff for negligent failure to provide police protection and for continuning to employ dep sheriff after he threatened wife.
Braswell v Braswell


Issue
Was the sheriff precluded from liability under the public duty doctrine or did he owe the deceased a special duty?
Braswell v Braswell

Holding
No special duty shown on sheriff's part. Prima Facie case not made.
NC Case
Acc to Braswell v Braswell, What should a Prima Facie case for special duty exception to the public duty doctrine against a public official in NC include?
1 Promise: Actual promise made by police to create the duty

2 Breach

3 Reliance: Promise reasonably relied upon by P

4 Injury: That reliance was causally related to the harm ultimately suffered by P.
Childs v Johnson


Facts
NC Case
EMS employee's detour into bank on personal errand led to collision between the employee and motorists. Motorists sued the county and the employee.
Childs v Johnson

Issue
Was the EMS employee defended by governmental immunity when driving county-owned vehicle and on-call 24 hours daily?
Childs v Johnson


Holding
No. The detour did not constitute governmental function, employee was not responding to an emergency call at time of accident, nor performing any particular EMS duties.
Braswell v Braswell

Facts
NC Case
Decedent's estranged husband, deputy sheriff, killed her following decedent's appeal to sheriff dept. for protection.
Braswell v Braswell

Issue
1 Was the sheriff protected by public official immunity or were they under a special duty to protect decedent?

2 Was the sheriff's dept negligent for continuing to retain the dep sheriff as employee after past incidents and were they liable under respondeat superior?
Braswell v Braswell

Holding
1 Sheriff's promise to protect decedent to and from work did not create a special duty to protect her at all times.

2 Dept not liable under respondeat superior. Unlike prior exception cases, the behavior at issue occurred outside the workplace and while the offender was off duty.
Explain the Duty of Master to Control Conduct of Servant, Restatement (Second) of Torts Sect. 317
Master is under duty to exercise reasonable care to control servant while acting outside the scope of employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if
a the servant
i is on the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or
ii is using a chattel of the master, and

b the master
i knows or has reason to know he has the ability to control his servant, and
ii knows or should know of the necessity and opportunity for exercising such control
Cockerham-Ellerbee v. Town of Jonesville

Facts
Decedent had taken out Domestic Violence Protective Order against estranged husband. He violated it on numerous occasions. (grave digging case) Officers promised she and her children would no longer have to worry about their safety. Husband seriously injured her after this.
Cockerham-Ellerbee

Issue
Were the police protected by public official immunity?
Cockerham-Ellerbee

Holding
No
What distinguishes Cockerham-Ellerbee from Braswell v Braswell?
Braswell decedent was killed outside the scope of the promise that created the special duty on part of the police.
What is the public duty doctrine in NC?
A doctrine that bars negligence claims by individuals against a municipality or its agents acting in a law enforcement role for failure to provide protection to that person from the criminal acts of a third party.
What is the policy behind the public duty doctrine in NC?
The rule recognizes the limited resources of law enforcement and the duty to protect the general public, not specific individuals. It seeks to prevent an overwhelming judicial burden on the dept.
What is the governmental immunity doctrine in NC?
In the absence of statute subjecting them to liability, the State, its municipalities, and the officers and employees sued in their official capacities, are shielded from tort liability when discharing or performing a governmental function.
What is the focus in NC in determining whether an employee/agency has governmental immunity in negligence cases?
What was the engagement of the employee/agency at the time of the cause of action, not simply whether or not their general duties fall under the doctrine.
FTCA

1st step in presenting a claim?
Must present claim to the appropriate Federal agency before instituting suit.

Failure to exhaust the adminstrative remedy will result in the case being dismissed due to lack of subj mat juris.
FTCA

Time deadlines?
1 Initial claim with admin agency must be w/in 2 yrs of when cause of action accrues

2 Lawsuit must be filed within 6 mos of when the agency mails notice of final denial of claim.
FTCA

When does cause of action accrue?
When claimant learns of his injury and its cause, not when he learns that the conduct was tortious.
Whose SOL applies with the FTCA?
Federal, not state tolling provisions apply.
Where can FTCA lawsuits be filed?
Only in fed crt due to exclusive jurisdiction over the subject matter.

Must be filed in district where P resides or where the cause of harm occurred.
Who tries FTCA lawsuits?
Judge. No juries.
FTCA P Attorney contingency fee limitations
1 max allowed is 25% of any judgment or settlement made after commencement of action and
2 20% of any settlement obtained through administrative procedure before filing suit.
FTCA

Jurisdiction section - what does it say?
Fed district crts have exclusive jurisdiction over torts claims against the U.S. and its employees acting w/in the scope of employment under circumstances in which, if the U.S. gov't were a private individual, that individual would be liable.
FTCA

General liability section - what does it say?
The U.S. is liable in the same manner and to the same extent as a private person under like circumstances, BUT is NOT liable for
interest prior to judgment or
punitive damages
FTCA

What if the case involves death and the law of the place where the tort took place provides only for punitive damages?
Then the U.S. shall be liable for actual or compensatory damages in lieu of punitive damages, measured by the pecuniary injuries resulting from the death.
FTCA

What if state tort law makes a state gov agency liable for failing perform a governmental function but FTCA does not?
FTCA waives fed government's sovereign immunity only where local law makes a private person liable in tort, not where local law makes a state or municipal entity liable.
FTCA

Is fed gov liable under strict liability for abnormally dangerous activity or for manufacturing a defective product?
No strict or absolute liability allowed agst U.S. gov.
FTCA

Which law determines respondeat superior - state law or fed law?
State law
FTCA


What is the Westfall Act?
A provision of the FTCA that is an exclusive remedy provision - it shields the individual fed employee from liability and makes the US gov liable, even if the FTCA makes the US gov also immune in that situation.
FTCA

Exceptions?
13 specific exceptions:
Examples:
transmission of mail
assessment or collection of customs duties
imposition of quarantines
fiscal operations of Treasury
combatant activities of military and naval force in time of war
FTCA

postal customer trips over mail negligently left on porch by mail carrier. Exception to FTCA Waiver of Immunity?
No
FTCA

3 most imp exceptions to this waiver of immunity - which means that the fed gov/employee would NOT be liable.
1 Any claim based on act or omission of employee of Gov, exercising due care, in the execution of a stat or reg, whether or not such stat or reg be valid, or based upon exercise or performance or failure to EXERCISE OR PERFORM A DISCRETIONARY FUNCTION OR DUTY on the part of a fed agency or any employee of the Gov, whether or not the discretion involved be abused.

2 Claims arising from assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference w/ contract rights.

3. claims arising from combatant activities of the military or naval forces, or the Coast Guard during time of war. (Feres Doctrine)
Public Officers

What may claims against them be based upon?
Common law of torts

special statutes (ex. Civil Rights Act of 1871)

Provision of U.S. Constitution
Public Officers

How might they be shielded from liability?
If their conduct falls w/in the common law official immunity - a doctrine that is separate and apart from governmental immunity.
Freres Doctrine
Does not allow recovery for claims arising out of or in the course of activity incident to any active duty service.

Not stated in the FTCA but implied by Supreme Crt
Freres Doctrine

Most common usuage
For officers run over by gov't vehicles while on varying degrees of leave
Freres Doctrine

Other examples of "incident to service"
Drug experiment by the US on soldiers, without their knowledge

training exercises resulting in injury/death (even though egregious behavior)

birth defects of children related to inoculations and toxic exposure of soldiers

injuries sustained during imprisonment on base
How has Freres Doctrine been extended?
To shield gov agst contribution or indemnity claims brought by manufacturers of products sued by service personnel and

to include injuries caused by non-military agents of the gov but not to include outside contractors providing services to the govt.
What if a claimant is unsuccessful under the FTCA?
May obtain relief by private bill. A difficult procedure requiring full cooperation of a Representative, plus tremendous persistence by an atty.
Public Officers

How may a public official be shielded from liability
1 If the official's conduct comes w/in common law official immunity (a doctrine sep from gov't immunity)
Public Officers

What if the state has not consented to be sued on a matter. May a public official be held personally liable?
Yes, if the conduct of the official does not come w/in the common law official immunity.
Public Officers

What is the basis for common law immunity?
Preserving independence of action, w/out deterrence or intimidation by fear of personal liability and vexatious suits. (Restatement - Second - of Torts)
Public Officers

Examples of those w/ this immunity
Judges, legislators

President

Pres Aides (qualified immunity, more like a "privilege")

State Exec Officers (degree varies by state)
Does public officer immunity apply to negligenct conduct or to intentional conduct?
Both
Public Officer Immunity (Official Immunity)

Is it available to discretionary or ministerial acts?
Only to discretionary
POI

Diff bettween discretionary and ministerial acts?
Discretionary involves element of judgment or choice in carrying out conduct

Ministerial involves decision making, formulating policy
POI


Restatement (Second) of torts. Comment f section 895D sets forth most factors crts look to when classifying conduct as discr v ministerial. What are these?
Book does not state these and I don't have them in my notes. Do we need ot know them?
POI

Vicarious Liability: holding public officials liable for torts of lower echelon employees: is it applicable?
No, at least when the officials in way personally participated in the wrongdoing.