Immunity Claims in Tort Law

May 22, 2023

Immunity Claims in Tort Law

An immunity is special protection offered by the law to a specific class of persons or entities from the liability of their actions or omissions. There are various classes of people who may claim to have a special protection from the law and can raise this defence.[1] When such a claim is raised, the person is excused from liability arising from an act or omission that gives rise to the liability. Since tort law is the branch of law that concerns itself with liability arising from civil wrongs, immunity claims in tort law will excuse private actors from liability arising out of their private engagements. Immunities thus act as excuses for wrongful conduct. This paper aims to assess the concept of immunity claims in tort law. It shall narrow down on the problematic areas and concepts. It shall highlight the various types of claims stating their salient features and requirements.

Before delving into the various classes of immunity claims in tort law, it is first important to highlight the concept of immunity under tort law. As argued at the introduction to this paper, the law of tort seeks to provide compensation for the injuries its actions or omissions cause. Central to the discourse on immunity is the interplay between duty of care and risk attached with the failure to meet one’s duty. As such a person may seek to be excused from liability for failing to meet his/her duty with regards to a particular subject. In terms of risk, the defendant should possess knowledge of a dangerous situation occasioned by the action or omissions as was held in Lakeside Condominium Association v Frediani Developers Incorporation.[2] Immunity therefore balances the harmful risks associated with non-compliance to duty and the obligation to fulfil one’s duty. If the court assesses a claim for immunity, the person will be absolved from the liability. This means he/she does not have a duty to compensate for the losses.

 The first class of immunity claim is spousal immunity. Spousal immunity is an albeit old kind of immunity. In practice it barred a wife was barred from filing a law suit against her husband for personal injuries.[3] The basis for this concept was drawn from developments in jurisprudence and sociology. For starters, in the early 1960’s it was perceived married people as one legal person.[4] This draws from the position in Abbott v Abbot where it was held that through marriage, the husband and the wife had essentially merged their legal identity.[5] Also, spousal immunity was buttressed by the society’s need to safeguard the concept of family. For instance, in Schultz v Christopher the court held that allowing a husband to sue his wife for communicating a venereal virus to her would be seen as harmful to the union between husband and wife.[6] As was further stated in Johnson v Ottomeier[7] terms of marriage, the common law placed the husband and wife on equal footing.[8]

In recent years however, courts have refused to uphold the claim of spousal immunity. A key case in this regard is the case of Freehe v Freehe.[9]Here the plaintiff sought compensation for personal injuries he had sustained due to the defendant’s negligence. The defendant had failed to maintain the tractor leading to a car accident and subsequent loss and injury to the plaintiff who was using it at the time. The court in this case held that interspousal immunity cannot be applied to immunise the defendant where he has acted in a negligent manner. The developments in the common law indicate that spouses are now seen as separate legal persons regardless of their marital status.

A substantial development in this regard was seen in the case of Goode  v Martinis.[10] In this case, the plaintiff filed a law suit to recover $25,000 worth of damages from her wife for an alleged assault. The Court here rejected the wife’s claim of spousal immunity and held that any married person can sue and be sued as though he/she were still unmarried. This holding has been reinforced in subsequent cases such as Lois Henry v Harold Henry [11] where there was a similar issue of tort.[12] It no longer applies as an excuse from liability and spouses are free to bring law suits against the other spouses. This can be seen from the fact that cases of battery, assault and false imprisonment can still be brought before courts.[13]

The second type of immunity, closely connected to the first is the immunity of a parent against law suits from his/her child. Parent-child immunity has a similar basis to that of spousal immunity. This was evident in the case of Hewlette v George,[14] where the court held that the parent child relationship was analogous to the husband-wife relationship. Therefore, each relationship embodied similar underpinning principles. Both seek to ensure that the family stays intact. In McKelvey v McKelvey[15] a son sought to sue his father for cruel treatment. The court accepted the defendants’ claim of parent-child immunity and excused them from liability. The basis of this ruling was that to rule in the child’s favor would be against the values of family. Also, if damages are paid to the child, the law presumes that the damages would still revert back to the parent.

This was held in the case of Klein v Klein [16]where the court assessed the feasibility of awarding tortious damages to a wife who would then reinvest it into the matrimonial property. Based on this assumption, the court could not award damages and excused the husband from liability from the damages. The assumption has also been the basis of the court’s finding in Self v Self[17] where the court held that the situation is only sustainable where the plaintiff was unmarried to the spouse. The assumption made by the courts is that the spouses share the marital property and matrimonial home. The spouses cannot approach the court to enforce a right which would simply mean that the matrimonial property leaves one pocket and enters the other.

This class of immunity will not apply in a few exceptional circumstances. Firstly, the immunity cannot excuse conduct where the parent has engaged in conduct that is seen as wanton or wilful. This includes intentional infliction of pain or harm that is not in any way connected to the furtherance of family unity. Secondly, where the action leads to the death of the child, there can be no reasonable ground for raising the claim of parent-child immunity. The claim can only be raised by a parent and not a stand-in parent or caretaker. The key overriding factor in these exceptions is that the court will not excuse conduct that is not connected to the overall purpose of fostering family unity or that will offend public interest.[18]

The next type of immunity claim is qualified immunity. This claim seeks to protect government officials from personal liability for torts. In Brosseau v Haugen,[19] the court defined qualified immunity as protection of an official against liability that as a result of decisions made that are constitutionally deficient. The tort claim against the defendant must relate to a clearly established right. It also relates to torts committed by government officials in their private capacity and not to those committed as a result of official capacity. For instance, in Malley v Briggs[20] the court refused to uphold a claim of qualified privilege where the defendant had arrested the plaintiff subject to a faulty arrest warrant.

This claim seeks to balance two somewhat conflicting notions. On the one hand is the need to hold officials accountable for their actions and on the other is the need to protect officials from any distractions that may hamper their conduct of official duties. It seeks to sort of  

 According to Hope v Pelzer[21] and O’Connor v Donaldson,[22] the terms constitutionally deficient and a misapprehension of the law will be determined based on the facts of each individual case. For example, in Trent Taylor v Robert Riojas[23]the constitutionally deficient decision was related to Taylor’s transfer to an unsanitary cell. In Wood v Strickland,[24] the decision in question related to displinary penalties It generally related to the scope of authority and the exercise of the official’s power.[25] Therefore, as was prescribed in Saucier v Katz,[26] the court held that two key elements must be proved accepting the claim of immunity. First, the court must identify the constitutional rights that are violated. This was stressed in the case of Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics.[27] Second, the court must look at whether the plaintiff clearly established that right at the time of the alleged infringement.  

This test was subsequently upheld by the Supreme Court in Pearson v Callahan. In this case, the plaintiff sought to sue the respondents who had conducted an arrest without procuring a valid arrest warrant. The court held that the officers in the case were entitled to raise the claim of qualified immunity because their actions did not violate rights in any clearly established law. The same rationale formed the basis for the court’s finding in the case of Safford Unified School District v Reading[28]where the court stressed the need for the right to be set out in a clearly established law.

Additionally, from the analysis above, specific classes of people who can raise the claim for qualified immunity. Police officers and law enforcement officials could seek to raise immunity from torts that are committed in the conduct of their investigations.[29] In Pierson v Ray,[30] the court gave a broad interpretation to the qualified immunity allowing it to include cases of false arrest. The court in City of Los Angeles v Lyons[31]found that thebasis for this interpretation was to ensure that the police force was able to efficiently carry out its functions without pressures for negating their constitutional duties.

Another group that enjoys immunity are the emergency service providers. For example, in the United Kingdom this immunity applies where emergency service providers cause an injury whilst carrying out their duties as seen in Capital Counties v Hampshire County Council and Others.[32] In Jo Ann Abruzzo v The City of Park Ridge,[33] the plaintiff sought damages after the city’s emergency medical officers who failed to provide medical assistance for his ailing son. The medical officers sought to argue a claim of immunity pursuant to the Tort Immunity Act. The court however stated that their action was wanton and wilful misconduct.

To claim immunity the emergency service providers must establish such immunity. This was expounded by the court in Mary DeSMET v The County of Rock Islands[34]in this case, the plaintiff sought compensation after the defendants had acted negligently in treating the plaintiff’s client. Similarly, the defendants here raised the claim of immunity. The court, while citing the case of Van Meter v Darien Park District[35] held that the governmental entities have the burden to prove such immunity existed. The court also relied the case of Doe v. Calumet City[36] in finding that the immunity cannot amount in a situation where the defendant acted in a manner that was wilful and intentional. This would go against the basis of the immunity claim which is to excuse the wrongful conduct.

In Doe, the plaintiff and her two children were victims of a violent home invasion. Neighbours had alerted the police and other emergency safety officers who arrived at the scene of the crime. An officer at the scene found Doe outside her apartment and was informed that the children were still inside the house. He was urged to break down the door but refused to do so. As a result of the delay, the children were subjected to sexual and physical assault.  The court here noted that the defendant could not raise a claim of immunity as his actions were clearly wilful and wanton refusal to perform his duties.[37]

The case of Doe and DeSMET draw to mind a particularly interesting issue. In both cases, the public officials sought to excuse their failure to act by claiming that immunity had excluded them from liability arising out of injury in the course of their duties. However, in Doe for instance, the act (or in this case omission) the officer was blamed for was not within the scope of his obligations. In such cases, courts tend to conjure the doctrine of special duty. This was clearly seen in the case of Huey v Town of Cicero[38] where the municipal council had a statutory duty to provide governmental services to the resident of the town of Cicero. The court gave applied the special duty doctrine and held that the municipal council had a duty to meet the incidental needs of the public at large and not just those within its primary duty under statute. The same rationale was applied by the court in Leone v City of Chicago,[39] Gebhardt v Village of LaGrange.[40]

The special duty doctrine raises an issue in as far as this class of immunity is concerned is the issue of the special duty doctrine. The court in Zimmermann v Village of Skokie[41] held that the special duty doctrine is a judicially created concept that mandates government official or public official to exception to public duty rule and was not intended to fulfil the duty of care to the society in general even it does not fall within its obligations under the law. It imposes a somewhat general duty on public officials and officers. The court in Calloway v Kinkelaar[42] further found that the special duty doctrine requires that; the public official is aware of the risk the plaintiff is exposed to, the public officials act in wilful manner and their actions lead to the alleged injury.

The special duty doctrine seeks to ensure that public officials do not raise the immunity clause as a means of escaping liability for wanton neglect of duty. In Fitzpatrick v City of Chicago[43] the court held that the doctrine allows for wide interpretation of a myriad of considerations. It requires that the defendant will be held liable for failing to meet his/her overall duty to society as a whole. The defendant cannot raise the claim of immunity for wilful neglect of obligations. Thus, fewer officials will raise the immunity as a means of excusing negligent and careless misconduct.

As such, the court in American National Bank and Trust Co. v The City of Chicago[44] the plaintiffs were administrators of the victim who had passed on as a result of the defendant’s failure to respond to a call for help by the plaintiff. The defendant’s emergency medical services claimed immunity pursuant to the Emergency Medical Services Systems Act. In the present case, the court held that the claim of immunity cannot be successful where the defendant deliberately refuses to honour the duty of care. Furthermore, the court held that the law only immunises conduct where the municipal council lacks the funds or resources to carry out their duty. The court while citing, Bowden v Cary Fire Protection District, [45] Gleason v Village of Peotria Heights [46]and Brock v Anderson Road Association[47] held that the immunity clam cannot be successful where the defendant acts in a negligent manner.

However, in some cases, the defendant can still claim the immunity from liability where the injury arises out of an action that was within its statutory powers. For instance, in the case of Swaw v Ortell,[48] where the court held that the defendants were not under a statutory to maintain and enforce building codes. This duty neither fell on their statutory power or could be reasonably implied to fall within their special duty. In Huey v Cicero,[49] the plaintiffs sought compensation for compensation for his son’s wrongful death. The death was caused by battery by thugs who had done so owing to the defendant’s negligence in ensuring security. The defendants claimed immunity pursuant to Section 4-102 of the Local Government Act. The court upheld the claim for immunity finding that the police force was independent from the town council of Cicero. The defendant’s had np statutory duty to ensure the police force supplied enough officers to patrol the streets.

Notably, another problematic issue concerns the defendant’s control over the tortfeasor. Control here arises from a special relationship between the defendant and the tortfeasor. In the case of Long v Soderquist[50] such a relationship can be said to arise in an employment contract. In the case of Bell v The Village of Midlothian[51] the court held that immunity will not be justiciable where the tortfeasor does not act within the scope of his authority and goes outside the control of the defendant. Control forms an essential part of immunity for public officials and workers. In Burdinie v The Village of Glendale Heights[52] the plaintiff brought suit against the defendant’s after sustaining injuries on one of their swimming pools. The defendants raised the defence of immunity pursuant to the Governmental Employees Act. Of importance to the court when determining the case was whether the plaintiff was under the control and supervision of the municipal council when the incident took place.

The issue of control also applies to questions of the special duty doctrine. For instance, in Jackson v Chicago Firefighters Union[53] the court held that the special duty doctrine would only apply to firefighters who were under the immediate control. It (the defendant) was immune to liability for the destruction of property by firefighters who were not acting under their instruction. The same was held in Galuszynski v The City of Chicago[54] where emergency medical service providers delayed in responding to a distress call, the court held that the defendant was not liable for those actions as they had acted in a manner that was not within the council’s control. As such, the council could excuse liability on their part by raising the claim of tort immunity.

In the interesting case of Marvin v Chicago Transit Authority[55] the transit authority (defendants) was not liable for the injuries suffered by plaintiff. The plaintiff who was attacked whilst in the company of a police officer, sued the defendant for the policeman’s failure to act. Although the policeman has a duty to act in this case based on the special duty doctrine, the defendants had no control over the policeman and could hence raise the defence of immunity. Since the police officer was not an employee of the defendant’s the plaintiff could not sue them for the actions of a person, they had no reasonable or legal control over.

Another class of immunity is employer’s immunity. It relates to the employer’s liability for work related injuries. The basis of the immunity of this kind is based on the duty of the employer to exercise reasonable care in providing a safe working condition for the employees. The employer’s liability is greatly limited based on the concept of contributory negligence. In Boggs v Blue Diamond Coal Co.[56] the court stressed that the employer was immunised from liability where the employee where the employee is equally negligent. For example, in Mundy v State Department of Health and Human Resources[57] the plaintiff in this case was stabbed in a hospital elevator. She had been a few minutes late. When the incident took place, she was yet to start her shift. She claimed that the employer had a duty to protect her. The employer argued that they are immune from liability. The court held that the that the plaintiff did not owe a duty to protect the employee while outside the scope of employment.

In conclusion the immunities are in place to enable a person to carry out his/her functions without the threat of public criticism. The key issues arising from immunities is the fact that the wilful or careless actions of the defendant will not immunize the defendant from a tort claim. Immunities depend on a myriad of factors which depend on whether there is a balance between the risk of harm from injury and the defendant’s duty. The

[1] Curtis et. al. v County of Cook 109 Ill. App.3d 405 (1982).

[2] 482 N.E. 2d. 665 (1985).

[3] Moulton v. Moulton, 309 A.2d 224 (1973).

[4] Diane MacDonald v Theodore MacDonald 412 A.2d 71 (1980)

[5] 67 Me. 304 (1877).

[6] 65 Wash. 496, 118 P. 629 (1911).

[7] 275 P.2d 723 (1954).

[8] Ibid.

[9] 500 P. 2d 771 (1972).

[10] 361 P.2d 941 (1961).

[11] 534 N.W.2d 844 (1995).

[12] See also Plankel v. Plankel, 841 P.2d 1309 (1992).

[13] Beaudette v. Frana, 173 N.W.2d 416 (1969).

[14] 68 Miss. 703 (1882).

[15] 111 Tenn. 389 (1903).

[16] 58 Cal. 2d. 683 (1962).

[17] 58 Cal. 2d. 692 (1962).

[18] Bird v Black 5 La. Ann 190 (1850).

[19] 543 U.S. 194, 197 (2004).

[20] 475 U.S. 335 (1986).

[21] 536 U.S. 731,740 (2002).

[22] 422 U.S. 570 (1975)

[23] 592 U.S. (2020).

[24] 420 U. S. 308 (1975).

[25] Scheuer v Rhodes 416 U.S. 233 (1974).

[26] 533 U.S. 194 (2001).

[27] 403 U.S. 389 (1975).

[28] 129 Sup. Ct. 2634 (2009).

[29] Butz v Economou 438 U.S. 505 (1977).

[30] 386 U.S 548 (1967).

[31] 471 U.S. 95. (1983).

[32] [1999] 1 All ER 552.

[33] 898 N.E. 2d (2008).

[34] 848 N.E. 2d 1030 (2006).

[35] 278 Ill. 2d. 366. (2003).

[36] 204 Ill.2d 388

[37] Ibid at 498.

[38] 41 Ill. 2d 362 (1968).

[39] 619 N.E. 2d 119 (1993).

[40] 188 N.E. 373 (1933)

[41] 183 Ill. 2d. 30 (1998).

[42] 168 Ill. 2d 315, 323 (1995).

[43] 112 Ill 2d. 212 (1986).

[44] 735 N.E. 2d 552 (2000).

[45] 304 Ill. App 3d 275 (1999).

[46] 565 N.E. 2d 683 (1993).

[47] 677 N.E. 2d 985 (1997).

[48] 137 Ill. App. 65 (1984).

[49] 243 N.E. 2d 215 (1968).

[50] 125 Ill. App. 3d 1058 (1984).

[51] 90 Ill App 3d 967 (1980).

[52] 565 N.E. 2d 654 (1990).

[53] 160 Ill. App. 3d 982 (1987).

[54] 131 Ill. App.3d 508 (1985).

[55] 113 Ill. App. 3d 737 (1983).

[56] 590 F.2D 658 (1979).

[57] 593 2d. 347 (1992).

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