Governmental Immunity “A sovereign is exempt from suit … on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.” Oliver Wendell Holmes Jr. American Public School Law

American Public School Law Sovereign Immunity Common law asserts that government is inherently immune unless the legislature specifically abrogates the privilege. American Public School Law

Discretionary Functions Judicial and legislative functions of state government are typically immune from liability. State educational agencies and local school districts do not necessarily retain immunity for all their acts and omissions. Immunity for Discretionary Acts American Public School Law

Insurance Waiver of Immunity Many states have waived immunity, by statute or case law, if the school district purchases liability insurance. If the school district does not purchase insurance, then the immunity remains in effect. American Public School Law

Proprietary Functions Things not normally required by law or things not governmental in nature. If a school district performs proprietary activities, then it must answer in damages when guilty in tort for injuries resulting from such functions. American Public School Law

American Public School Law Licensee and Invitee A licensee is one who steps beyond the limits of invitation, entering and using the premises by permission or by operation of law but without expressed or implied invitation. An invitee is a person who enters the premises upon the invitation of the owner. American Public School Law

American Public School Law Nuisance To constitute a nuisance there must have arisen a condition, the natural tendency of which is to create danger or inflict injury upon person or property…. There must be more than an act or failure to act on the part of the defendant… The danger created must have been a continuing one. American Public School Law

American Public School Law Nuisance A dangerous condition must be created by the school district for nuisance to exist. To constitute nuisance there must be a continuing hazard and there must be more than a mere failure to act on the part of the defendant. American Public School Law

Eleventh Amendment Immunity The 11th Amendment to the U.S. Constitution bars a private party from recovery of funds from a state treasury for a liability judgment against the state. American Public School Law

American Public School Law IDEA Section 1403 “Abrogation of State Sovereign Immunity” A State shall not be immune … for a violation of this act. Remedies … are available … to the same extent as … are available … in the suit against any public entity other than a State. American Public School Law