1. Chapter 13: Sovereign Immunity and Government Liability
Nan D. Hunter
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2. Alexander Hamilton, Federalist No. 81:
It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal.
Federalist No. 81 available at:
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3. Sovereign Immunity: Origins
In Chisholm v. Georgia, the Supreme Court allowed a South Carolina man to sue the state of Georgia for debts involving munitions supplied during the Revolutionary War.
In direct response to the decision, the Eleventh Amendment was passed, which states:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another state, or by Citizens or Subjects of any Foreign State.
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4. The Eleventh Amendment
Bars citizens from bringing suits against the state when the the suits seek money damages or an injunction relating to state law and are brought in federal court.
Does not prevent federal courts from issuing injunctions against state officials for violating federal law.
Only applies when the state does not consent to the suit and there is no applicable waiver of sovereign immunity.
Most important waiver: Federal Tort Claims Act, which applies to injuries “caused by the negligent or wrongful act of omission” of a government employee acting within the scope of his office.
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Negligence
Part of tort law, negligence fixes responsibility in the form of money damages for injuries caused unintentionally.
Generally, someone has acted negligently if they failed to behave as a reasonably prudent person would have under the circumstances, or failed to exercise reasonable care.
The touchstone for negligence is reasonableness, which is determined objectively (by reference to the reasonably prudent person), not subjectively.
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Negligence, cont.
Elements of a negligence claim: (i) defendant owed a duty to the injured party; (ii) defendant breached that duty; (iii) injury resulted; (iv) the defendant’s conduct was the proximate cause of the injury.
Duties arise out of everyday interactions, and, as a whole, constitute the responsibility not to harm anyone else.
Duties can also be imposed by statute.
Examples: building code regulations; speed limits and other traffic laws; licensing requirements.
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7. Negligence & Foreseeability
In addition to reasonableness, foreseeability is the other touchstone of negligence law.
It is generally said that we only owe a duty of reasonable care to those individuals who might foreseeably be injured (also known as foreseeable plaintiffs).
With respect to causation, a defendant will only be said to be the proximate (or legal) cause of an injury if the injury was the foreseeable result of his actions.
Think of proximate causation as a matter of fairness -- should the defendant be held liable? -- based in large part on whether or not the consequences of her actions were foreseeable.
More information on these concepts is located in the Teacher’s Manual for this chapter. Briefly then, a few points on foreseeability. Note first that the concept of foreseeability as it relates to duty and to causation can be viewed as indistinguishable. For example, consult the Palsgraf decision located in the Important Terms section (“duty of care”). In that case, a railroad passenger carrying a package was approaching a train; two railroad employees, fearful that the passenger would fall onto the track pushed him to the ground on the platform. Unbeknownst to the employees, the package contained fireworks, which exploded, causing a set of scales to fall on the plaintiff’s head. Future Supreme Court Justice Cardozo famously said that the employees weren’t liable because the plaintiff was not foreseeable -- that is, they could not have foreseen that their actions would injure her specifically -- hence, while the employees had a duty to the passenger and those in his immediate vicinity to act with reasonable care, that duty did not extend to Mrs. Palsgraf. But we can just as easily phrase this as a matter of proximate causation. True, the employees were the factual (or but-for) cause of Mrs. Palsgraf’s injuries: had they not pushed the passenger, the fire-works would not have exploded, and the scales would not have dropped. But the explosion and the scales falling were not a foreseeable consequence of their actions, so that a court could say that they were not the legal cause. Stated this way, proximate causation can be viewed as little more than a matter of fairness under the circumstances, fairness determined in large part by the concept of foreseeability.
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8. The Hand Formula
Defendant should only be found negligent where B < PL.
B = burden of taking precautions
P = probability of the accident occurring
L = gravity of the actual injury suffered.
Image:
Judge Learned Hand
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9. Negligent and Intentional Torts
There are two chief varieties of torts: negligent torts, those that arise from behavior that is unreasonable but not directed at inflicting harm; and intentional torts, where the defendant acted with the purpose of harming someone or something.
The FTCA applies to both negligent and wrongful (intentional) acts.
One category of intentional tort we have seen with respect to government actors is the claim of “active endangerment,” whereby government officials knowingly (as opposed to negligently) place others in greater danger than what is already present.
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10. The Discretionary Function Exception
Under the FTCA, immunity is not waived with respect to any claim based on the “exercise or performance or failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the government, whether or not the discretion involved be abused.”
Two part test when applying the exception:
The action in question must have had some element of judgment or choice; ministerial actions mandated by law will not satisfy the exception.
The judgment or choice must have some policy element inherent in it -- that is, it must be the sort of action for which immunity was originally intended.
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Berkovitz
What does it mean that an action has an element of policy making?
The basis for the discretionary function exception was Congress’ desire to prevent judicial “second- guessing” of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort (292).
When a suit charges an agency with failing to act in accord with a specific mandatory directive, the discretionary function exception does not apply (294).
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