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Zittrain Torts Playlist Spring 2018

XII. Duty: Governmental Liability

Government entities perform unique functions for, and perhaps accrue responsibilities to, their citizenries. When they are said to bungle them, can they be called to answer in tort for resulting harm? The answer, of course, is complicated. An early posture of sovereign immunity, drawn from a regent’s being above (or at least the source of) the law, meant that without more, suits alleging negligence by government actors might flatly fail. Exceptions to sovereign immunity have been created piecemeal, sometimes by judges acting at common law, and sometimes by statute, whether state or Federal for their respective jurisdictions.

One typical dividing line for liability is whether a government is acting in a “proprietary” capacity – i.e. as a private actor. If I slip on a freshly mopped but unmarked floor in the post office, why should sovereign immunity kick in for the Postal Service when a regular shopkeeper would have to answer for negligence? Another tends to invoke our previous duty analysis of action vs. inaction: police protection may not be proprietary (the existence of private security firms notwithstanding), but a failure to respond to a 911 call may count as “inaction” rather than action. At the very least, we must explore, as a matter of law, the extent of legal duty accepted by a municipality when it undertakes to offer policing services. (Indeed, would a failure to offer any services at all, as compared to offering them poorly, be subject to suit?) Our first cluster of readings examines some of these problems, along with the rationales for shielding some acts or omissions in policing from suit. It may be that act/omission isn’t really the key distinction. Rather, concern about judicial intrusion into budgeting and planning by the executive and legislative branches may be the touchstone.