Torts II

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.