Immunity from Liability
Chapter 9
Objectives
• Describe the history and current status of sovereign
immunity as it applies to the American fire service.
• Explain purpose of tort claims acts.
• Explain statutory immunity and how it differs from
sovereign immunity.
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Objectives
• Explain difference between discretionary acts and
functionary acts, governmental function and
proprietary function, and how the difference impacts
immunity.
• Describe whom the Volunteer Protection Act of 1997
applies to, and its immunity protection.
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Objectives
• Explain public duty doctrine, special duty exception,
and insurance waiver doctrine.
• Explain limitation on immunity protection for acts of
gross negligence, recklessness, or intentional acts.
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Sovereign Immunity
• Common law rule
• All levels of government had absolute immunity from
liability
• Eroded through court decisions and legislative
action
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Tort Claims Acts
• Passed by all states and Congress
• Purpose
– To make government more accountable
– To be fair to citizens who may be injured by
governmental actions and employees
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Tort Claims Acts
• Three functions
1. Establish governmental liability
2. Establish a procedure for filing claims
3. Reserve some limited area where immunity
protection remains
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Tort Claims Acts
• Distinctions
– Discretionary acts
• Matters of public policymaking
– Functionary acts
• Carrying out established policy
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Tort Claims Acts
• Confusion over immunity is related to
– Questions about what is a discretionary act
– Questions about what is a functionary act
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Tort Claims Acts
• Some courts liberally interpret discretion
– Driving a police car = discretion = immunity
– Closing a jail cell door = discretion = immunity
– Placement of fire apparatus = discretion =
immunity
– Whether a fire is out or not out = discretion =
immunity
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Tort Claims Acts
• Public or governmental function
– A function not normally done by a private party
• Police and fire
• Public health
– Immunity protection exists in some states only for
governmental functions
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Tort Claims Acts
• Proprietary Function
– Commonly done by private enterprise
• Swimming pool, parking garage, golf course
• Driving vehicles
– Some states do not provide immunity when
government acts in a proprietary function
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Statutory Immunity
• Statutes that provide immunity to:
– Certain professionals and organizations
• Firefighters, fire departments
– Certain activities
• People who render aid gratuitously
• Good Samaritans
• Laws vary greatly from state to state
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Volunteer Protection Act
• 1997 federal legislation
• Provides immunity for people who volunteer for state
and local governments, or a charitable organization
• Provides no protection to the organization
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Volunteer Fire Companies
• Private nonprofit corporations
• Immunity status is dependent upon state law
– National Passenger Railroad Corporation v. Catlett
Volunteer Fire Company, 241 Va. 402, 404 S.E.2d
216 (VA, 1991)
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Limitations on Immunity
• Gross negligence, recklessness, or intentional acts
• Insurance waiver
• Special duty exception
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Special Duty Exception
• Some states will only find a governmental actor
liable if
– Government owes a person a “special duty”
• Special duty
– Greater than that owed to the general public due to
some action by the government that the person
relies upon
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Special Duty Exception
• Example
– Person calls for ambulance and is assured an
ambulance is dispatched
• Person calls back several times to confirm and is
told ambulance is on the way
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Special Duty Exception
• In reliance on the statements of the dispatcher
– Caller does not transport victim to the hospital
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Special Duty Exception
• Many states recognize a flip side to the special duty
exception that protects the state and municipalities
from tort liability
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Public Duty Doctrine
• Absent a special duty to the victim
– No liability
– Public duty that a governmental actor owes to the
public at large is not enough to create liability
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Summary
• Sovereign immunity
• Tort claims acts
• Statutory immunity
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Summary
• Volunteer protection act
• Limitations on immunity
• Public duty doctrine
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