Immunity Claims in Tort Law.

May 22, 2023

Immunity Claims in Tort Law.


An immunity is a 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 special protection from the law and can raise this defense.[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. Central to the discourse on immunity is the interplay between the 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 fulfill 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. This paper seeks aims to assess the concept of immunity claims in tort law. It shall so in three key sections. The first shall highlight the historical background and summarize the types of immunities to create a brief overview of the concept. The second part shall discuss the legal framework for immunities in the US. The third part shall interrogate issues that are relevant to contemporary immunities law.

A brief overview of immunities law

From a general point of view, the concept of immunities owes its birth to the need to exclude certain classes of people from liability. It was based on the understanding that certain people due to the nature of their, background, status, and relationship cannot be held liable for certain acts. Such immunities were also buttressed on social, economic, and political considerations. For example, the onus of safeguarding family unity has always rested on society as families form the basic unit of any community. As such, spousal immunity was meant to safeguard family virtues and unity. Moreover, sovereign immunity, both in civil and criminal law was aimed at excusing liability for specific officials who might cause civil injuries in the course of duty.

From this basic understanding, common law was able to develop a wide range of immunities to protect special classes of people from liability. 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 lawsuit 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 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 immunize the defendant where he has acted negligently. The developments in the common law indicate that spouses are now seen as separate legal persons regardless of their marital status.

Substantial development in this regard was seen in the case of Goode v Martinis.[10] In this case, the plaintiff filed a lawsuit 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 lawsuits 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 lawsuits 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 the family. Also, if damages are paid to the child, the law presumes that the damages would still revert 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 marital property and the 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 the 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 an 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.

Additionally, police officers and law enforcement officials could seek to raise immunity from torts that are committed in the conduct of their investigations.[21] In Pierson v Ray,[22] 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[23]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 class of immunity is the employer’s immunity to 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.[24] the court stressed that the employer was immunized from liability where the employee is equally negligent. For example, in Mundy v State Department of Health and Human Resources[25] 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 plaintiff did not owe a duty to protect the employee while outside the scope of employment

The legal framework of immunity in the US

Having undertaken a brief overview of the concept of immunities, it is essential to investigate the laws, regulations, and provisions that regulate immunity claims in the US. As such, this section seeks to discuss the legal framework in place for immunity claims in the law. In doing so, it shall discuss the practice in the law and interpretation by courts.

In this regard, a key starting point is an interplay between constitutional provisions and immunity claims. Whereas there are no direct and explicit provisions providing for immunities, the courts have aided in furthering jurisprudence through purposive interpretation. As such, the court in Chisholm v Georgia[26] gave credence to the general rule of sovereign immunity. Here the court indicated that it had an obligation to enforce and uphold the legal principle that excludes sovereigns from liability arising from their private and official actions whilst acting in an official capacity. Moreover, the federal government and its organs enjoy sovereign immunity from legal action where they are tortfeasors. The courts have reinforced this position in the case of Cohens v Virginia[27] where Chief Justice John Marshall stated that it is universally accepted that sovereigns, their corporations, and officials cannot be sued or prosecuted. Additionally, in United States v Clarke,[28] the court held that courts lack the constitutional mandate to determine, prosecute or adjudicate over such suits that will lead to an infringement of this immunity. In Alden v Maine[29] the court held that sovereign immunity forms an essential part of the constitution’s structure and is a privilege that should be rationally controlled and enjoyed.[30]

Thus, the constitutional principle is that sovereigns are a special group of privileged individuals who cannot be held liable for the torts they cause through their acts or omissions. In this regard, Federal law enshrines what is known as absolute immunity. Here the actor is absolved of all immunity from his actions regardless of whether they are perpetrated in bad faith or with wanton malice. This is most evident where such injures or losses are as a result of the effect of legislative acts or the conduct of legislators while carrying out their official constitutional mandate. It may also apply in cases where a judge’s decision affects or causes injury to the person of an individual. Such an issue was evident in the case of Stump v Sparkman[31] where the court interpreted absolute immunity to allow the actor, in this case, may raise a claim of sovereign immunity and argue that he/she had acted according to the constitutional mandate and would then enjoy absolute immunity.

Another consideration is what the laws and regulations, besides the constitution, provide for in terms of immunity claims. It is important to note that; whereas the constitution and to a great extent, federal laws provide for absolute immunity, other laws have sought to provide for limitations on the concept of immunity. It is evident that if absolute immunity would apply to all state organs and officials, there would be issues with regards to the proportional and reasonable. On this backdrop, courts have sought to interpret legal provisions to qualify who may and who may not be excused from liability. Notably, government actors may claim qualified immunity to excuse certain conduct but are subject to certain conditions. Most, legislations do provide for such provisions that enshrine qualified immunity.

However, in practice, the courts are tasked with the duty of “qualifying” actors who meet the legal threshold. Qualified immunity claims seek to balance competing legal interests. 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. According to Hope v Pelzer[32] and O’Connor v Donaldson,[33] the terms constitutionally deficient and a misapprehension of the law will be determined based on the facts of each case. For example, in Trent Taylor v Robert Riojas[34]the constitutionally deficient decision was related to Taylor’s transfer to an unsanitary cell. In Wood v Strickland,[35] the decision in question related to disciplinary penalties It generally related to the scope of authority and the exercise of the official’s power.[36] Therefore, as was prescribed in Saucier v Katz,[37] 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 the Federal Bureau of Narcotics.[38] Second, the court must look at whether the plaintiff 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 established law. The same rationale formed the basis for the court’s finding in the case of Safford Unified School District v Reading[39]where the court stressed the need for the right to be set out in established law.

A government actor may also be held liable for failure to carry out his/her duties. However, the issue arises where the actor, in this case, has a broad scope of duties. For instance, police officers are tasked with maintaining peace and order. Failure to carry out patrols may not amount to a failure of their explicit duties but such omission to act may lead to a tort of negligence should a crime take place due to this failure. The courts have taken cognizance of this possibility and the risk it poses and has developed what is known as the special duty doctrine. This concept was defined in Zimmermann v Village of Skokie[40] as a judicially created concept that mandates government officials or public officials to an exception to public duty rule and was not intended to fulfill 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[41] 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 wilfully 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[42] the court held that the doctrine allows for a 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 misconduct.

However, in some cases, the defendant can still claim 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,[43] 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 nor could be reasonably implied to fall within their special duty. In Huey v Cicero,[44] the plaintiffs sought 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 according to Section 4-102 of the Local Government Act. The court upheld the claim for immunity finding that the police force was independent of the town council of Cicero. The defendants had no statutory duty to ensure the police force supplied enough officers to patrol the streets.

A key issue in the court’s interpretation of immunities, more so in the case of municipal organs is that of control. To claim that a person is immune from liability, the actor must have been acting under the command or the control of the governmental organ.[45] For instance, in Jackson v Chicago Firefighters Union[46] the court held that the special duty doctrine would only apply to firefighters who were under 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[47] 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.

Relevant contemporary issues in immunities law

The law is ever-changing and developing. There is hence, room for improvement as far as the legal position is concerned. Notably, the law on immunities has undergone key changes in the past. For instance, the legal position on spousal immunity has greatly changed. This has led to a refreshed view on the rights and responsibilities of individuals in a marriage. Moreover, the claim of parent-child immunity has been narrowed in scope. This is due to developments in contemporary law relating to the rights of a child and improvements in how the law regulates interactions within the family.

Over the recent years, there have been discussions on developing and changing aspects of the law of immunities. One such bill was the George Floyd Justice in Policing Act that sought to exclude police officers from claiming qualified immunity. Similarly, the Ending Qualified Immunity Act sought to achieve the same purpose. The proposed bill was introduced by supporters from the Republican, Libertarian, and Democratic parties.

Currently, a notable development is the move to reform the Qualified Immunity Act. This is through a bill introduced by Indiana senator Mike Braun. It is currently in the Senate Judiciary Committee pending recommendations and proposals. It seeks to modify the defense of qualified immunity with regards to tort claims by introducing substantially reduce the scope of protection offered by the law. In effect, these bills will limit the scope of persons protected by qualified immunity and provide for stricter rules for interpreting the laws providing for such immunity. This is aimed at providing greater oversight on public officials more so police officers in the conduct of their duties.


In general, immunities are in place to enable a person to carry out his/her functions without the threat of public criticism. The key issue 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.

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

[22] 386 U.S 548 (1967).

[23] 471 U.S. 95. (1983).

[24] 590 F.2D 658 (1979).

[25] 593 2d. 347 (1992).

[26] 2 US 419 (1793).

[27] 2 U.S 282 (1812).

[28] 445 U.S. 253 (1980)

[29] 527 US. 706 (1990)

[30] Lapides v Board of Regents of University System of Georgia 513 US 613 (2000).

[31] 435 U.S. 349 (1978).

[32] 536 U.S. 731,740 (2002).

[33] 422 U.S. 570 (1975)

[34] 592 U.S. (2020).

[35] 420 U. S. 308 (1975).

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

[37] 533 U.S. 194 (2001).

[38] 403 U.S. 389 (1975).

[39] 129 Sup. Ct. 2634 (2009).

[40] 183 Ill. 2d. 30 (1998).

[41] 168 Ill. 2d 315, 323 (1995).

[42] 112 Ill 2d. 212 (1986).

[43] 137 Ill. App. 65 (1984).

[44] 243 N.E. 2d 215 (1968).

[45] Marvin v Chicago Transit Authority 113 Ill. App. 3d 737 (1983).

[46] 160 Ill. App. 3d 982 (1987).

[47] 131 Ill. App.3d 508 (1985).

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