Torts II


Immunity is an exemption from legal action.

There are many forms of immunity.

  • Judicial Proceedings
  • Employer Immunity
    • Due to worker's compensation paying for any work-related injury, even if not the employer's fault.
  • Familial Immunity
    Interspousal Immunity

    Under the common law, spouses could not sue each other for tort claims.

    The majority of states have completely eliminated interspousal immunity for torts.

    Other states have limited it in some way.

    • Most do not provide immunity for intentional torts.
    • Some states allow claims for torts that occurred before the marriage.
    • After a divorce, some states allow suits to be brought for claims that arose during the marriage.
    • Some states only allow claims for automobile accidents.
      • This is the most common type of interspousal suit.
      • This can help for insurance reasons.

    Even in states where suits are allowed, they are not allowed for any harm. It must be an excessive or gross abuse of normal privilege.

    Parental Immunity

    The majority holds that a parent is not liable for ordinary negligence in the performance of parental responsibilities.

    The Restatement is similar, espousing a parental privilege.

    The minority allow children to sue their parents for negligent supervision under a "reasonable parent" standard.

    The overwhelming majority says that children cannot sue for negligent discipline.

    Children can nearly universally sue for intentional or willful or wanton infliction of injury.

    A slight majority gives absolute parental immunity, but usually parents are granted broad discretion for parental authority or supervision.

    Common exceptions made to parental immunity are:

    • Intentional or willful or wanton conduct
    • Death of parent or child
    • Emancipation
    • Automobile accidents

    A step-parent can qualify for parental immunity if he was acting in loco parentis.

    Parental immunity is reciprocal and also prevents parents from suing their children.

    If parent and child are joint tortfeasors, they might not be allowed to sue each other for contribution. However, in comparative negligence states, the jury can compare liability in assessing damages.

    Siblings have no immunity.

  • Charitable Immunity

    Charitable immunity is a doctrine that exempts charitable organizations from tort liability.

    In modern times, charitable immunity has been largely rejected.

    In a substantial majority of states, nongovernmental charitable institutions are liable for their own negligence and for the negligence of its agents and employees acting within the scope of their employment.

    • Virginia is not part of this majority. In Virginia, a charity is immune as long as it exercised due care in hiring and retaining agents.
  • Sovereign Immunity

    State agencies and instrumentalities have sovereign immunity.

    However, all states also have a tort claims act, which limits their sovereign immunity.

    States that waive sovereign immunity still retain it for judicial and legislative functions.

    Even though cities are not sovereign, states usually provide them with sovereign immunity for their governmental functions.

    • Cities do not have sovereign immunity for their proprietary functions.
    • Some jurisdictions do not give sovereign immunity if the city has liability insurance, instead permitting recovery for the amount of the insurance.
    • Some jurisdictions do not give cities any sovereign immunity.

    Governments do not have tort liability for their police failing to protect members of the public unless they have formed a special relationship with a particular person.

    A special relationship is formed when the government voluntarily assumes a duty, a person relies on the government's assurances, and the government is negligent in providing that service.

    Discretionary Act

    Discretionary acts are those where the government is acting to establish policy.

    Many states and the federal government have eliminated immunity for ministerial acts but retained it for discretionary functions.

    Ministerial Act

    Ministerial acts are those where the government is acting to enforce already-established policy.

    Many states and the federal government have eliminated immunity for ministerial acts.

    Federal Tort Claims Act

    The Federal Tort Claims Act allows the federal government to be sued for tortious conduct.

    Before suing under the Federal Tort Claims Act, all administrative remedies must be exhausted first.

    The federal government can only be sued in a district court.

    Strict liability does not apply to the federal government.

    Exceptions to the Federal Tort Claims Act:
    • Discretionary functions
    • Intentional torts
      • Except for law enforcement
      • Only applies to the government itself—the individual agents can still be sued for their intentional torts.
    • Feres Doctrine

      The Feres Doctrine prohibits recovery for claims arising out of or in the course of activity incident to any active duty service.

    • Public officers
      • They are only shielded if their conduct comes within common law official immunity or an exclusive remedy provision.
    • Judges and legislators
      • They have absolute immunity for all acts within the scope of their office, even if done in bad faith.