Duty: Governmental Liability | Samantha Bates | January 18, 2016


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Duty: Governmental Liability

Original Creator: Jonathan Zittrain Current Version: Samantha Bates Show/Hide

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 king’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 the courts’ intrusion into budgeting and planning by the executive and legislative branches may be the touchstone.


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  1. 1 Show/Hide More Riss v. City of New York--"The Lye in the Face Case"
    Original Creator: Jonathan Zittrain Current Version: Samantha Bates
    Should the government pay for a failure to protect an individual citizen from harm?
    For six months, a rejected suitor threatened to kill or maim the plaintiff if she did not give herself to him. Plaintiff pleaded with the police for protection, to no avail. After plaintiff became engaged to another man, she received a phone call warning her that it was her ‘last chance.’ The plaintiff begged the police for help once more, but was refused. The next day, a hired thug threw lye in the plaintiff’s face, blinding one eye, partially blinding her in the other eye, and permanently scarring her face.
  2. 2 Show/Hide More Schuster v. City of New York-- "The Death of the Police Informant"
    Original Creator: Jonathan Zittrain Current Version: Samantha Bates
    Should the government have a duty to protect citizens who are endangered by their assistance of the police?
    Plaintiff’s son died soon after being threatened for supplying information that lead to the arrest of a wanted criminal. Prior to his death, the plaintiff’s son had requested protection from the police department but had been refused. The plaintiff sued the police department for negligence, on the theory that the police’s failure to provide protection lead to his son’s death.
  3. 3 Show/Hide More Weiner v. Metro. Transit Authority--"The Unmanned Train Station"
    Original Creator: Jonathan Zittrain Current Version: Samantha Bates
    Should non-police, government agencies—such as transit authorities—have a duty to protect the individuals they service?
    Defendant transit authority was aware of a history of armed robberies and assaults at a particular subway station, many of which occurred during time periods where the station was unmanned by transit police or employees. The plaintiff suffered a knife wound when a robber slashed through the strap of her handbag. At the time of her robbery, no transit police or employees were scheduled to be present at the station.
  4. 4 Show/Hide More Garcia v. Superior Court of Santa Clara County--"The Fatally Wrong Parole Officer"
    Original Creator: Jonathan Zittrain Current Version: Samantha Bates
    Should the government compensate individuals who rely upon the statements of government officials and are subsequently injured?
    While on parole, Napoleon Johnson—a convicted murderer—began a relationship and cohabiting with Grace Morales. After Morales moved out, the ex-convict repeatedly threatened her, attempted to stab her, sexually assaulted her at knife-point, and falsely imprisoned her. While Johnson was undergoing psychiatric treatment for threatening behavior, Johnson’s parole officer tried calling Morales to reconcile the relationship between the two. During the phone call, the parole officer insisted that Morales should not be worried about Johnson finding and hurting her. Soon after, Johnson kidnapped and killed Morales. Morales’ children sue on the theory that Morales would have taken safety measures to protect herself if it wasn’t for the statements of the parole officer.
  5. 5 Show/Hide More Florence v. Goldberg--"The Police-Manned Crosswalk"
    Original Creator: Jonathan Zittrain Current Version: Samantha Bates
    Should government agencies pay when a plaintiff is injured by the agency’s failure to provide services to a specific group of citizens?
    The plaintiff is a six-year-old child who was struck by a taxicab while crossing the street near his school. The infant’s mother had allowed him to walk to and from school without an escort because she had previously observed the daily presence of a crossing guard. However, on the day of the incident, the regularly assigned crossing guard was ill. Furthermore, the police department failed to follow their standard operating procedure when crossing guards are unavailable; the department neither assigned a substitute patrolman nor notified the school principal of of the absence of a crossing guard.

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January 18, 2016

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Samantha Bates

Research Associate

Harvard Law School, Berkman Center

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