23 Immunities

In addition to the defenses supplied by plaintiff’s own behavior, the other main category of defenses pertains to the status of the defendant: immunities. Entire classes of defendants are immune from tort liability to particular classes of actors, or under particular circumstances. For example, parents are generally immune from suit by their children with respect to their everyday childrearing choices, employers are generally immune from suit by their employees (who must turn to workers’ compensation when injured on the job), and judges are immune from lawsuit by parties before them. A number of formerly broad immunities (such as spousal immunity or immunity for charitable organizations) have either been eroded or abrogated over time. This is not an exclusive list of status-based immunities, but these are likely the most significant ones historically.

Immunity offers powerful protection from lawsuits, and analytically, it operates somewhat as duty does, that is, as a question of law intended to serve as a gatekeeping mechanism. However, just as was the case with duty, there may be factual questions embedded in determinations of immunity. (Recall that in Farwell v. Keaton, for instance, the court considered factual questions, such as the relationship between the boys, to determine the legal issue of duty.) Similarly, determining immunity may require resolution of underlying factual questions, such as whether a step-parent can avail himself of the same immunity as the parent in a given situation (see Zellmer v. Zellmer, 164 Wash.2d 147 (2008)), or whether governmental actors were acting in a particular capacity (say, as legislators) versus as managers or employees whose actions should be treated, for tort liability purposes, more like those of private citizens. Immunities are important in their own right as jurisdictional limitations and as substantive protections. They also may play an important role in the operation of comparative fault and allocating damages appropriately.

Immunities are also important because they are defenses that pertain to particular statuses but do not attempt to excuse the conduct of the immunized actor. In other words, it may be clear that an actor is a tortfeasor and the only thing stopping liability from attaching is this immunity. In that sense, immunities are very different from other defenses that may make the defendant’s conduct not wrongful (as in the case of self-defense or consent) or that may make the conduct only as wrongful as the plaintiff’s (as in a hypothetical case of comparative fault). With immunities, the conduct may or may not be wrongful; the point of the immunity is to shield the actor from having to submit to the exercise of that investigation into wrongfulness. Protecting against that inquiry is precisely what is thought to confer autonomy in the roles to which immunity attaches. Implicit in this is the concession that mistakes are part of the job—whether for governmental actors, judges or parents—and these mistakes, when made in the core of the function to which the immunity attaches, are not legally recognized mistakes. Because of the significant amount of power wielded by those whom the law immunizes categorically, it is important to pay close attention to the rationales offered for immunity as well as to the operation and impact of maintaining it.

1. Judicial Immunity

Duvall v. County of Kitsap, Ninth Circuit Court of Appeals (2001)
(260 F.3d 1124)

[Editor’s note: the facts and parties have been streamlined to edit the case for length; brackets indicate edits.]

Christopher Duvall brought this action against a superior court judge, Kitsap County, the County’s Americans with Disabilities Act (“ADA”) coordinator, the chairperson of the County’s ADA committee, and the person who served as court administrator and court ADA coordinator. Duvall alleged that these defendants failed to accommodate his hearing impairment during the state court proceedings involving the dissolution of his marriage. Specifically, he contends that the defendants violated the ADA, Section 504 of the Rehabilitation Act, and the Washington Law against Discrimination (WLAD) by refusing to provide real-time transcription for his hearings.[1] The district court granted summary judgment to all defendants as to all claims. Duvall appeals.

I. Background

Christopher Duvall is completely deaf in his left ear and has a severe hearing impairment in his right ear. Because he *1130 does not sign well enough to use American Sign Language or Signed English, Duvall’s primary mode of receiving communication is through the written word. He wears custom-fitted hearing aids and is able to communicate effectively in one-on-one conversation in spoken English with the aid of visual cues and lip reading. He finds it extremely difficult, however, to follow a conversation in which he is not a participant. In such circumstance, he is unable to focus on a single speaker to study his facial expressions, body language, and lip movement; nor is he able to control the pace of the conversation, nor provide for a pause that would give him time to process the various aural and visual cues and interpret the speaker’s message. Attempting to overhear or follow a conversation between others requires a great deal of concentration, and after approximately thirty minutes Duvall begins to suffer from tinnitus and headaches that further diminish his capacity to understand spoken communication.

In 1994 and 1995 Duvall was a party to a family law case in the superior court of Kitsap County, Washington involving the dissolution of his marriage. In his declaration, he states that he was initially able to participate meaningfully in several pre-trial hearings because the hearings were short, there was no oral testimony, and the discussion centered on written materials that he had reviewed prior to the hearing. Thereafter, however, he experienced difficulty in following the one pre-trial hearing that included extensive oral testimony. That hearing took place in courtroom 269, the courtroom designated for hearing-impaired individuals because of its small size, superior acoustics, and special equipment, including an assistive-listening device, for hearing-impaired individuals. Nevertheless, Duvall could not understand the testimony of his ex-wife, even though he knows her speech patterns very well. Subsequently, after he continued to experience difficulty understanding the proceedings in two further pre-trial hearings, Duvall realized that he would not be able to participate meaningfully when the case came to trial without some form of accommodation. He then contacted the U.S. Department of Justice and was advised that he should request videotext display from the ADA Coordinator for Kitsap County.

The parties dispute when Duvall first requested videotext display for his court proceedings. Duvall contends that he contacted Barbara Razey, the county’s ADA coordinator, in April, 1995, and spoke to her several times in the six weeks preceding his trial about his need for accommodation. According to Duvall, he explained to Razey that he had examined the equipment in courtroom 269 and had concluded that it would not effectively accommodate his hearing impairment, and specifically requested real-time transcription for his trial, which was scheduled to begin in late June.

[When he called and Razey was out on vacation, Duvall asserts that he was directed to Madelyn Botta, Director of the Superior Court’s administrative services and its ADA coordinator and that he spoke with her twice in mid-May. While the substance of their conversations is disputed, Duvall contends that he requested real-time transcription. Botta contacted Duvall’s attorney and told him that the trial would be held in a courtroom equipped for the hearing impaired.] [***]

*1131 None of the court or county officials attempted to determine whether the facilities in courtroom 269 would accommodate Duvall’s hearing impairment, or whether it would be possible to provide videotext display through a court-reporting service, although, according to Duvall, he had informed them that the accommodations provided in Courtroom 269 were inadequate, given the nature of his particular hearing problems.

The trial for the marriage dissolution action was held before Judge Leonard Kruse on June 21, 22, and 23 in courtroom 269. That courtroom was equipped with the “Telex Soundmate,” an assistive audio system for hearing-impaired individuals. Duvall contends that this device was inappropriate for an individual like himself who uses hearing aids that are precisely adjusted to the user’s hearing needs. Telex–Soundmate did not contain an inductive loop system that would transmit to Duvall’s hearing aids and make use of their customized settings. He further declares that the facilities in courtroom 269 required him to remove his hearing aids and to use earbuds, which provided only general amplification and impeded the use of his natural hearing ability. By Duvall’s account, requiring him to remove his hearing aids to use the inferior Soundmate system was equivalent to requiring a person with an artificial leg to remove the leg and use crutches.

Duvall’s attorney made a motion to the court on the first day of trial requesting videotext display to accommodate Duvall’s hearing impairment. Judge Kruse stated in his deposition that this was the first time that he had heard about Duvall’s request for that accommodation. In any event, Judge Kruse denied the motion, stating,

[T]hat’s the way humans happen to communicate, I guess up until a very recent time, with one another is orally. And I know that some courts in some places have the ability to have, in effect, an on-line screen available through the court reporter. We have not progressed to that technical degree in this county, and I can only assume that if Mr. Duvall wished to have that service available he can provide that service for himself.

Judge Kruse did, however, permit Duvall to move around the courtroom freely and position himself wherever he could best hear the proceedings. Duvall sat in the jury box for a portion of the trial. Although this permitted him to understand the witnesses somewhat better, he was unable to communicate easily with his lawyer, who was sitting at the counsel table. He testified that he made extensive notes to preserve his thoughts for his lawyer, but that he missed the testimony that occurred while he was looking down to write notes.

When Duvall’s ex-wife took the stand on the first day of trial, Judge Kruse stated that the parties and attorneys could move about the courtroom “unless it … starts to be disconcerting in some regard *1132 or intimidating or something.” Duvall states in his declaration that he interpreted this remark to imply that he was sitting too close to the witnesses, and moved several seats away from the witness box, putting him out of effective aural range of the witnesses and attorneys. According to Duvall, at this point he “gave up” and returned to his seat next to his attorney for the remainder of the trial. The intense concentration required to attempt to follow the proceedings resulted in exhaustion, headaches, and tinnitus, further impeding his ability to hear. In sum, Duvall avers that his hearing impairment prevented him from meaningfully participating in the trial.

A post-trial hearing was scheduled for August 11, 1995.

[Duvall, again requested videotext display at the upcoming hearing hand-delivering a letter containing his request on August 8 to both Razey and Botta. They responded on behalf of the County on the same day with a letter stating simply that the hearing would be held in Courtroom 269. Again, no county or court official made any effort to determine whether videotext transcription was available. Duvall moved for a mistrial at the August 11 hearing, based upon the court’s failure to provide videotext display at the trial, and Judge Kruse denied the motion, stating that real-time transcription was not available in Kitsap County.]

At the time of Duvall’s June trial, one of the county’s court reporters was training to learn real-time transcription, and in fact had already demonstrated to Botta and several of the superior court judges how that process works. Duvall also submitted declarations of court reporters in Seattle who stated that they could have provided videotext display at the time of his trial.[2] Indeed, when Razey first contacted firms in Seattle and Tacoma in September 1995 as part of the investigation of Duvall’s complaint to the county ADA grievance committee, she learned that these firms did, in fact, have the capacity to provide videotext display to the superior court in Kitsap County. Moreover, although Sandra Baker and Associates, an independent firm that provided much of Kitsap County’s court-reporting services, had never provided videotext display prior to September 1995, when Kitsap County first requested this service on September 19, 1995, that firm also was able to accommodate the request. It provided videotext display for Duvall’s post-trial court hearing three days later, and for the subsequent hearings.

The County’s ADA grievance committee denied Duvall’s grievance on October 6, and the Board of County Commissioners denied his appeal in late November. Duvall filed suit in federal district court under Title II of the ADA, Section 504 of the Rehabilitation Act of 1973, the Washington Law Against Discrimination (WLAD), and 42 U.S.C. § 1983 seeking declaratory[3] and compensatory *1133 relief. The suit named as defendants (1) Judge Kruse and court administrator and ADA coordinator Botta (collectively “the Superior Court defendants”) and (2) County ADA Coordinator Razey, County ADA committee chairperson Richardson, and the three members of the Board of County Commissioners (collectively “the County defendants”). [fn] The district court granted summary judgment to all defendants on all claims. Duvall now appeals.

II. Judicial Immunity

The district court granted summary judgment to Judge Kruse and court administrator Botta on the ground of judicial immunity. It is well settled that judges are generally immune from suit for money damages. [c] However, absolute judicial immunity does not apply to non-judicial acts, i.e. the administrative, legislative, and executive functions that judges may on occasion be assigned to perform. [c] We have identified the following factors as relevant to the determination of whether a particular act is judicial in nature:

(1) the precise act is a normal judicial function;
(2) the events occurred in the judge’s chambers;
(3) the controversy centered around a case then pending before the judge; and
(4) the events at issue arose directly and immediately out of a confrontation with the judge in his or her official capacity. [c]

We conclude that Judge Kruse was acting in a judicial capacity when he refused to accommodate Duvall. Judge Kruse testified that he first learned of Duvall’s request for videotext display on the first day of trial, when Duvall’s attorney brought a motion requesting videotext display. Following completion of the trial, Duvall requested a new trial because of the absence of videotext display during that proceeding. Duvall’s motions were made by his attorney while Judge Kruse was presiding over Duvall’s case. The judge stated that, when he ruled on the motion requesting videotext display, he did not consider Duvall’s request under the ADA. Instead, Judge Kruse considered only whether, as a matter of courtroom administration, the courthouse was able to provide videotext display without delaying the start of the trial. At the August post-trial hearing, Judge Kruse simply ruled that Duvall was not entitled to a new trial based upon the court’s earlier refusal to provide videotext display. Ruling on a motion is a normal judicial function, as is exercising control over the courtroom while court is in session. Judge Kruse is therefore entitled to absolute judicial immunity. [fn]

Judicial immunity is extended to “certain others who perform functions closely associated with the judicial process.” [c] “When judicial immunity is extended to officials other than judges, it is because their judgments are ‘functional[ly] comparab[le]’ to those of judges—that is, because they, too, ‘exercise discretionary judgment’ as part of their function.” *1134 [c] (see also Greater Los Angeles Council on Deafness v. Zolin, 812 F.2d 1103, 1108 (9th Cir.1987) (holding that “the lynchpin of both the judicial and quasi-judicial immunities” is that the acts in question are “an integral part of the judicial process”). Here, Botta was the superior court ADA coordinator as well as the court administrator. She concedes that she had ministerial authority to arrange courtroom accommodations for disabled individuals, but contends that, because she was entitled to determine whether Duvall would receive his requested accommodations only in consultation with the judge presiding over his case, she is entitled to quasi-judicial immunity.

For Botta’s defense of absolute immunity to succeed, she must demonstrate that her decision to refuse videotext display was functionally comparable to the type of decision made by a judge [c]. Absolute immunity is “the exceptional case.” [c] Although, in her deposition, Botta expressed uncertainty about the limits of her authority to provide accommodations, she admitted that, as the court’s ADA coordinator, she was the appropriate person from whom to request accommodations. She further acknowledged that she made the decision to accommodate Duvall by scheduling his trial in Courtroom 269, rather than by providing him with videotext display. That she may have decided upon the accommodation she provided after consulting with Judge Kruse does not demonstrate that she was exercising a quasi-judicial function rather than implementing the requirements of the ADA pursuant to duties that had been assigned to her—particularly in light of Judge Kruse’s testimony that Botta did not consult with him or inform him about Duvall’s request for videotext display. In fact, some of Botta’s deposition testimony strongly suggests that her decision not to provide videotext display was administrative in nature.

Q: You said that if someone came to you and requested an ASL interpreter for litigation, you would make that decision yourself.
A: Right, based on the statute.
Q: Which statute?
A: I can’t cite it to you, but it’s my understanding that the legislature has decided that sign-language people should be available and that there is a statute—I can’t cite it to you.
Q: Do you know if that statute speaks to any disabilities other than the need for a sign-language interpreter?
A: I don’t know.
Q: So based on that statute you had the authority to provide … [a] sign-language interpreter?
A: Right.

Thus, it appears that when a statute requires, or perhaps even authorizes, the provision of a particular form of assistive device to a hearing-impaired individual, Botta has the authority to make the necessary arrangements therefor, as an administrative matter. Further, it appears that in acknowledging her authority in that regard, that Botta may have been adverting to the very statutes at issue here.[4] Accordingly, the type of decision-making authority Botta exercised in Duvall’s *1135 case appears, at the very least, to raise an issue of material fact as to whether she was acting in an administrative rather than quasi-judicial capacity. Because the burden is on the official claiming immunity to demonstrate that public policy requires recognition of an absolute immunity, [c], we hold that Botta’s deposition testimony alone precludes summary judgment in her favor.

[***Analysis of substantive allegations of violations of the ADA, the Rehabilitation Act, and the WLAD omitted here]

The district court’s grant of summary judgment in favor of Judge Kruse and the members of the Board of County Commissioners is hereby AFFIRMED. The order of summary judgment in favor of Botta, the County of Kitsap, Razey, and Richardson is REVERSED as to all claims. The case is REMANDED to the district court for proceedings consistent with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED.

RYMER, Circuit Judge, dissenting:

Like Judge Kruse, the Court Administrator, Madelyn Botta, is sued for damages and like him, I believe she is entitled to immunity. As the majority recognizes, the judge was performing a judicial function when he declined on the first day of trial (June 21, 1995) to order videotext display for Duvall and when he denied Duvall’s motion for a new trial (August 11) based on the absence of real time assistance at trial. Botta’s actions were functionally no different. For essentially the same reasons that Judge Kruse is absolutely immune, the Court Administrator should be, too.

Duvall argues that Judge Kruse acted in an administrative capacity in denying Duvall’s request for accommodation and that “he has no immunity to share with the remaining defendants.” The majority holds otherwise with respect to the judge, and I agree. Duvall’s argument that Botta lacks immunity stems from the same premise—that Judge Kruse was performing an administrative, not a judicial, function, therefore so was the Court Administrator. As we unanimously reject this premise, this should be the end of the matter.

Court clerks or administrators are entitled to absolute immunity from liability for damages “when they perform tasks that are an integral part of the judicial process.” Mullis v. United States Bankruptcy Court, 828 F.2d 1385, 1390 (9th Cir.1987) (court clerks have absolute quasi-judicial immunity for filing decision).[5] *1143 Here, assuming Duvall’s version is true, he approached Botta before trial for videotext assistance at trial. Botta declined to talk to Duvall because he was represented by counsel, but told him to make his request in the form of a motion to the court. Duvall does not dispute that Botta did not have authority to grant his request once litigation was underway. He in fact asked the judge presiding over his divorce for real time accommodation on the first day of trial. The judge denied the request. This was clearly a discretionary judicial decision. [***]

Neither Duvall nor the majority explains why Botta’s instruction to take his request to the judge was not part of the judicial process. Nor does either explain why she should not be bound (or least not be properly guided) by the judge’s decision at trial when she was later consulted by the county ADA coordinator with regard to Duvall’s post-trial request for accommodation at a post-trial hearing. [***]

However you slice it, determining whether a particular hearing impaired individual needs accommodation for a court proceeding, and what kind of accommodation is reasonable, entails the power of decision. It is either a judicial function, or comparable to one. It is not administrative,[6] legislative, or executive. Judges may *1144 delegate some part of this function to the court administrator or clerk of court, but at the end of the day the function is, and remains, judicial.

In addition, Duvall was not without redress for he could appeal the judge’s rulings. As the Supreme Court has observed, “[m]ost judicial mistakes or wrongs are open to correction through ordinary mechanisms of review, which are largely free of the harmful side-effects inevitably associated with exposing judges to personal liability.” [c]. Duvall does not need, and should not be allowed, to seek damages from a court administrator for an arguably incorrect determination about his needs or the court’s ability to address them. This is what appeals are for. To withhold judicial immunity from the clerk in these circumstances permits a party to play the clerk off against the judge, an unseemly as well as unnecessary distraction.

Without question, the judge is the final decision-maker with respect to proceedings in his court. RCW 2.28.010. For this reason, aside from immunity, I do not see how Duvall could be injured by anything Botta did or didn’t do, or how Kitsap County, non-court personnel [***] and Richardson could have told the judge what to do. Washington judges are state actors, whose authority comes from the state not the county. Wash. Const., Art. IV, § 1; see Keenan v. Allan, 889 F. Supp. 1320, 1363 (E.D.Wash. 1995) (judges are officers of Washington State). As we have held in connection with a similar system elsewhere, a county cannot be liable for judicial conduct it lacks the power to control. [c]

Accordingly, I would affirm.

Note 1. Does the majority define the scope of judicial immunity properly in your view, or improperly, in distinguishing between the acts of the judge versus the administrator? Should something like a vicarious liability rule apply if, as the dissent suggests (writing with the authority of a judge), “the judge is the final decision-maker with respect to proceedings in his court”? Are judicial clerks different from administrators, if their work involves primarily research, writing and counseling the judge on the substantive matters before the judge? (See the footnote in the opinion at p. *1143 in which the court lists jurisdictions that do provide partial or full immunity for clerks.)

Note 2. The majority opinion writes that “[b]ecause the burden is on the official claiming immunity to demonstrate that public policy requires recognition of an absolute immunity, [c], we hold that Botta’s deposition testimony alone precludes summary judgment in her favor.” What is the practical effect of this statement? Can you articulate the reasons—descriptive and normative—for allocating the burden of proof in this way at this stage?

Note 3. Where do you stand on the dissent’s argument that money damages are not the right remedy for an argument like this one (assuming a violation of the ADA and/or other anti-discrimination laws is proven)? The dissent argues that Duvall did have another means of redress in the form of appealing the judge’s rulings. What concerns are driving the dissent’s argument?

Note 4. If judges are to remain immune for decisions like the ones in Duvall, more training seems necessary in light of the apparent failures to understand the impact on a litigant that can be wrought by a failure to make necessary accommodations. Especially in the context of high-conflict proceedings such as dissolution, in which the parties were even instructed not to stand too close to each other, what ought to be done? Are there reforms you can imagine, whether legal or sociocultural, to improve the environment for parties and advocates who may need accommodations in order to gain meaningful access to the legal system?

Note 5. This opinion from 2001 quotes but does not rebuke or comment on, judicial language that is plainly ignorant about and dismissive of an entire community of people living with hearing-based challenges. In fact, there is a lively discussion among academics, historians and advocates over whether deafness is misunderstood when it is cast as a disability rather than a difference signifying belonging to a subculture that operates apart from the “mainstream hearing community.” However, deaf people may still require accommodations to enable their participation in mainstream events, including legal hearings. Thus the ADA is a powerful and welcome tool for ensuring access to justice and other societal institutions and spheres. Still, it is surely mistaken, careless and lacking in empathy to state, as Judge Kruse does, “[T]hat’s the way humans happen to communicate, I guess up until a very recent time, with one another is orally…. I can only assume that if Mr. Duvall wished to have that service available he can provide that service for himself.”[7]

Note 6. Duvall relayed that “requiring him to remove his hearing aids to use the inferior Soundmate system was equivalent to requiring a person with an artificial leg to remove the leg and use crutches.” He may have merely been trying to use an analogy that a hearing person could understand better. Does the use of this analogy, however, convey a sense of deafness as physically disabling in a way that may help a legal argument but undercut the cause of deafness as a cultural condition rather than a disability? And if the analogy does help advance Duvall’s legal argument, does it do so by relying on the pathos associated with bodies that are “not normal” thus displaying its own ableism? Or is it simply an effective way of conveying that the best way to overcome different physical challenges is not necessarily universal but must be tailored and the best person to ask is the person overcoming the challenges?

Professor Anne Bloom and the late Professor Paul Steven Miller have written that tort litigation suffers what they call “blindsight” (deliberately invoking associations with blindness so as to reclaim them):

Tort litigation’s blindsight stems from its assumption that the lives of people with disabilities are tragic. … This perspective is blindsighted because people with disabilities do not tend to share this assessment of their lives; in their view, a life with a disability is no more or less tragic than a life without one….  [T]ort litigation’s distorted perspective fosters troubling stereotypes and encourages plaintiffs with disabling injuries to view themselves in harmful ways. … From a disability rights perspective, this extreme focus on plaintiffs’ bodies overlooks important aspects of a disabling injury…While there may be many physical issues associated with disability, the main problem that most people with disabilities face is not their bodies but social oppression… A person with a spinal injury, for example, faces less of a challenge from walking than from social discrimination and the inability to gain access to many buildings with a wheelchair… Thus, from a disability rights perspective, when a person suffers a disabling injury, social and environmental factors play a significant role in creating the condition of being designated as disabled.

Anne Bloom & Paul Steven Miller, Blindsight: How We See Disabilities in Tort Litigation, 86 Wash. L. Rev. 709, 712-13, 717 (2011) They suggest that “[i]nstead of portraying plaintiffs as “tragedies,” legal actors in tort litigation could present their clients’ disabling injuries in more complex ways that better reflect people with disabilities’ actual experiences.” They recognize that compensation is important in torts cases featuring severe injuries but argue in favor of a more empowering, less tragedy-affirming perspective. One of their primary recommendations is to enable those with disabilities to play a more active and prominent role in their cases, something that we have seen Duvall was trying to do, in vain.

Check Your Understanding (4-4)

Question 1. In Duvall v. Kitsap County, the majority holds that Judge Kruse has absolute judicial immunity. Based on that ruling, which of the following would open Judge Kruse to liability:

(i) Judge Kruse’s determination not to provide appropriate accommodation was based on his personal contempt toward Mr. Duvall.

(ii) Judge Kruse’s determination not to provide appropriate accommodation was based on a privately held and biased view of the hearing impaired.

(iii) Judge Kruse, while hosting a dinner party, negligently failed to warn his clerk that the kitchen sink was broken such that water coming out of the sink was dangerously hot. The clerk was injured while attempting to help clean up.

2. Parental Immunity

Rousey v. Rousey, District of Columbia Court of Appeals (1987)
(528 A.2d 416)

Appellee, Doris Rousey, and her eleven-year-old daughter, Cheryl Rousey, were involved in an automobile accident in the District of Columbia. Cheryl sustained injuries, and through her father, Smith Rousey, she brought suit against her mother, alleging that the accident and her injuries were a direct and proximate result of her mother’s negligence. Mrs. Rousey, who was insured by Government Employees Insurance Company and represented by its counsel, filed a motion for summary judgment on the ground that parental immunity barred appellant from suing his wife on behalf of their unemancipated daughter. The court granted the motion, and Mr. Rousey appealed to this court.

A division of the court, recognizing that the doctrine of parental immunity had never been established as the law of the District of Columbia, refused to adopt it and held that appellant was not barred from maintaining this suit against appellee, his wife, on behalf of their unemancipated minor child. Rousey v. Rousey, 499 A.2d 1199 (D.C.1985). That decision was vacated when the court decided to rehear this case en banc. Rousey v. Rousey, 507 A.2d 1046 (D.C.1986). A majority of the court en banc now concludes, as did the division, that the parental immunity doctrine is out of date. We decline to adopt it, choosing instead to follow section 895G of the Restatement (Second) of Torts (1979), which in our view sets forth a more appropriate legal standard. We therefore reverse the trial court’s order granting summary judgment to appellee.

Unlike interspousal immunity, parental immunity was unknown at common law. *417 [c] Interspousal immunity was based on the notion that husband and wife were legally one person,[8] whereas parent and child were never so regarded. Children, unlike wives, were entitled to own property and to enforce their own choses in action, including those in tort; likewise, they were liable as individuals for their own torts. [cc]

The notion that a parent might be immune from liability for tortious conduct toward his or her child was not recognized in the United States until 1891, when the Supreme Court of Mississippi refused to permit a suit brought by a child against her mother, alleging that the mother had falsely imprisoned the child in an insane asylum. In ordering the suit dismissed, the court said:

[S]o long as the parent is under obligation to care for, guide, and control, and the child is under reciprocal obligation to aid and comfort and obey, no such action as this can be maintained. The peace of society, and of the families composing society, and a sound public policy, designed to subserve the repose of families and the best interests of society, forbid to the minor child a right to appear in court in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent.

Hewellette v. George, 68 Miss. 703, 711, 9 So. 885, 887 (1891). Although the court cited no authority for this proposition, courts in all but eight other states followed Mississippi’s lead and adopted some form of parental immunity. [c]

Various reasons have been advanced in support of parental immunity, but the reason most frequently cited by the courts has been the need to preserve domestic tranquility and family unity. [cc] Many courts have relied heavily upon the analogy between husband and wife, despite the obvious differences between the husband-wife relationship and the parent-child relationship. Because at common law husband and wife were treated as one person, a wife generally could not sue her husband. [c] Children, however, were never treated as mere extensions of their parents; they could even sue their parents in tort to protect their *418 property rights. [c] The situation with respect to personal torts is somewhat less clear, since there are very few reported cases, but there is little reason to doubt that the common law would permit actions for personal torts as well, subject only to the parent’s right to enforce reasonable discipline against the child. [c] Thus we find the analogy to interspousal immunity to be a faulty one, providing no real justification for immunity between parent and child. Moreover, the courts that have adopted parental immunity have never adequately explained why the immunity applies only to suits in tort and not to suits involving property or contract rights. An action to enforce property or contract rights is surely no less adversarial than an action in tort, and in theory, at least, it would present the same threat to family harmony.

Of course, the analogy to interspousal immunity and the concern with domestic tranquility have not been the sole justifications for parental immunity. The courts have also expressed concern that parental discipline and control might be compromised if children were permitted to sue their parents. [cc] Others believed that an uncompensated tort contributed to peace in the family and respect for the parent. [c] The absurdity of this reasoning, however, becomes plain when the case involves rape, Roller v. Roller, 37 Wash. 242, 79 P. 788 (1905), or a brutal beating, Cook v. Cook, 232 Mo.App. 994, 124 S.W.2d 675 (1939); McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664 (1903), or when the parent-child relationship has been terminated by death before the suit was filed. Lasecki v. Kabara, 235 Wis. 645, 294 N.W. 33 (1940).

Persistent criticism of the doctrine of parental immunity eventually led to its erosion through the creation of various exceptions to it.[9] One court asserted that parent-child immunity “should not be tolerated at all except for very strong reasons; and it should never be extended beyond the bounds compelled by those reasons.” [c] Other critics of the doctrine went even further, arguing for its complete abandonment. See, e.g., McCurdy, Torts between Parent and Child, 5 VILL.L.REV. 521, 529 (1960); McCurdy, Torts between Persons in Domestic Relation, 43 HARV.L.REV. 1030, 1079–1080 (1930); [cc]

The courts of the District of Columbia were not faced with the issue until 1948, in a case in which a thirteen-year-old boy brought suit against his mother for injuries he suffered in an automobile accident. The accident occurred in Maryland, however, and hence the only question before the court was whether the son had a right to bring suit under Maryland law. After stating that the issue had not been decided in the District of Columbia and that it was “neither necessary nor proper … to analyze the authorities, weigh the problem and announce a rule,” the court concluded that decisions of the Maryland Court of Appeals “on kindred questions clearly indicate its accord with the overwhelmingly prevalent rule that public policy forbids such suits.” Villaret v. Villaret, 83 U.S.App.D.C. 311, 312, 169 F.2d 677, 678 (1948). [***]

Although the “overwhelming weight of authority” did at one time favor parental immunity, the doctrine began to lose judicial support after a 1963 Wisconsin decision which abolished it entirely except when the allegedly tortious act involved “an exercise of parental authority … [or] ordinary parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care.” Goller v. White, 20 Wis.2d 402, 413, 122 N.W.2d 193, 198 (1963). In 1977 the American Law Institute completely rejected general tort immunity between parent and child when it published section 895G of the Restatement (Second) of Torts. That section states:

(1) A parent or child is not immune from tort liability to the other solely by reason of that relationship.

(2) Repudiation of general tort immunity does not establish liability for an act or omission that, because of the parent-child relationship, is otherwise privileged or is not tortious.

Many states have since followed the lead of Goller v. White and the Restatement, so that a substantial majority of states have now abandoned the doctrine in whole or in part. To date eleven states have abrogated it entirely or declined to adopt it; fn] eleven have abrogated it in automobile negligence cases; [fn] five have abrogated it in automobile negligence cases in which the parent has liability insurance; [fn] and seven have abrogated it except in cases in which the parent’s alleged tortious act involves an exercise of parental authority over the child, or ordinary parental discretion with *420 respect to such matters as food, care, and education. [fn]

This trend toward abrogation is attributable, in large part, to the prevalence of liability insurance. [cc] The availability of insurance relieves the parents of direct financial responsibility for injuries sustained by their children, and thus substantially reduces the possibility that an action for damages will disrupt domestic tranquility or family unity. As the Supreme Judicial Court of Massachusetts wrote in Sorensen:

When insurance is involved, the action between parent and child is not truly adversary; both parties seek recovery from the insurance carrier to create a fund for the child’s medical care and support without depleting the family’s other assets. Far from being a potential source of disharmony, the action is more likely to preserve the family unit in pursuit of a common goal—the easing of family financial difficulties stemming from the child’s injuries. [Sorensen v. Sorensen, 369 Mass. 350, 362 (1975)] [cc]

Although there is a possibility that parent and child may conspire to defraud the insurance carrier or that the parent may fail to cooperate with the carrier as required under the insurance contract, [c] that possibility exists to a certain extent in every case;[10] it hardly justifies a “blanket denial of recovery for all minors.” Sorensen, supra, 369 Mass. at 363, 339 N.E.2d at 915; [cc].

We constantly depend on efficient investigations and on juries and trial judges to sift evidence in order to determine the facts and arrive at proper verdicts. As part of the fact-finding process, these triers of fact must “distinguish the frivolous from the substantial and the fraudulent from the meritorious.” … Experience has shown that the courts are quite adequate for the task. Id. at 914-915.

Because there is no controlling precedent on the subject of parental immunity, [fn] we need not overrule any prior decisions. Rather, we simply decline to adopt the doctrine of parental immunity as the law of the District of Columbia. We acknowledge that doctrine for what it is: an outdated notion based on faulty premises. We see it as a vestige of an era in which children were without legal protection from the wrongs of their parents, and married women were without legal rights, subordinate to their husbands, all in the name of family harmony. More specifically, we are persuaded that section 895G of the Restatement *421 (Second) of Torts, SUPRA, IS JURISPRUDENTIALLY SOUND, AND WE ACCEPT IT AS A CORRECT STATEMENT OF THE LAW APPLICABLE TO CASES SUCH AS THIS.[11]

Thus we reject appellee’s argument that an unemancipated minor child should be barred, in the interest of family unity, from suing his or her parent for negligence. When a wrong has been committed between parent and child, “the harm to the family relationship has already occurred; and to prohibit reparations can hardly aid in restoring harmony.” [c]. We see no reason, moreover, to limit our holding to cases in which the parent-defendant has liability insurance, as some courts have done. [fn] There can be no justification for fashioning different rules of law for the insured and the uninsured. [c] The availability of insurance funds to satisfy a judgment should not determine the viability of an action by a child against a parent (or vice versa), nor should the judgment necessarily be limited to the amount of the insurance policy.

The order granting appellee’s motion for summary judgment is reversed. This case is remanded to the Superior Court for further proceedings consistent with this opinion.

Reversed and remanded.

NEBEKER, Associate Judge, dissenting:

The majority gives all the appearances of being quite unsure about its new holding. In the face of a division opinion limiting suits by issue to automobile accidents covered by insurance, Rousey v. Rousey, 499 A.2d 1199 (D.C.1985), the majority now retreats from that unusual view to general amenability to suits by offspring. They then hedge, as does the RESTATEMENT, by hinting at unknown exceptions where in the future we may conclude the case involves the type of conduct which may “on a case-by-case basis” be identified as “privileged or non-tortious.” [c]. The court thus behaves like an ill-advised legislature, acting broadly while it continues to study the need to make exceptions to the broad new enactment. This, in my view, is a poor way to take such a serious step. The hedging also implicitly recognizes that this question is for the legislature. Moreover, the majority chooses to ignore what to me are obviously damaging consequence to family structure and a moral imperative that compel the opposite conclusion.

In declining to adopt parental immunity, the majority disparages the wisdom of the past which championed the family unit, as if a contrary modern view is obviously superior. The majority finds solace in the fact that at common law there was no parental immunity and that children could enforce their own contract and property rights and bring their own action in tort. Ante at 416–417. This selective recourse to history ignores a body of law from the ecclesiastical courts where, in their domain, such suits were unthinkable. See McCurdy, Torts Between Persons in Domestic Relation, 43 HARV.L.REV. 1030, 1060 n. 141 (1930). The majority criticizes an analogy to spousal immunity and asserts that the rationales which support it are not applicable to parental immunity. [c] I agree with this point. Because the common law view of the husband-wife relationship differed from that of the parent-child, any justification by way of analogy is tenuous. Accepting this, however, I find somewhat perplexing the majority’s process of rejecting parental immunity *422 by comparing it to the statutory abolition of spousal immunity in the District of Columbia in 1976.

But enough of their fallacious reasoning! The main concern is misguided policy. I view the fact that parental immunity did not exist at common law to be irrelevant because “no American child tortiously injured by his parents had ever sought to recover damages until late in the nineteenth century.” Hollister, Parent-Child Immunity: A Doctrine in Search of Justification, 50 FORDHAM L.REV. 489, 498 (1981–1982). It seems that prior to 1891, our social and legal evolution had not “progressed” to the point that a child, or more accurately one in concert with him, could or would consider suing a parent in tort. The reason may have been that our society tolerated “almost unbridled parental authority,” [c] or that prior to our saturation with liability insurance, there was less incentive to sue. Of course, collusive actions were not permitted. [c] In any event, it appears the legal profession and a family oriented society simply deemed it unthinkable for a child to bring a tort action against his parent. Thus, the testing of liability was simply not contemplated. Accordingly, a doctrine of immunity would have been superfluous.

In 1891, when a tort claim was eventually brought by a daughter against her mother, the Supreme Court of Mississippi promulgated the doctrine of parental immunity. Hewellette v. George, 68 Miss. 703, 9 So. 885 (1891). Although it has been attacked as an “exception to the general rule of liability for negligently caused injury,” Hollister, supra, 50 FORDHAM L.REV. at 504, parental immunity is more appropriately considered a judicial response to the latter-day attempt to pit child against parent and other family members. I see rejection of this immunity as part of the pandemic course to expand compensation for injury to yet another outer limit.

The likelihood of harm to the family structure if parental immunity is rejected has summarily been dismissed by the majority—in a manner similar to the decisions from other jurisdictions which have undertaken to reject this immunity, see Petersen v. City and County of Honolulu, 51 Hawaii 484, ––––, 462 P.2d 1007, 1009 (1969). Moreover, I submit that pointing to the familial discord which may also result from intentional, wanton or grossly negligent conduct is misdirected. The case before us is not one of an intentional or criminally reckless nature. Rather, it stems from an activity which today is essential to the functioning of a household—the operation of the family automobile. Anyone who has reared children today can attest to the near indispensability of the family car or cars.

I note that the majority seems to hope that family discord from offspring suits will be avoided because insurance will eliminate true adversity. It will not; and it will foster collusion. But liability insurance should not serve as the basis for rejecting the doctrine of parental immunity in any event. The majority notes the prevalence of liability insurance as its primary justification for creating new legal rights and duties within the family. I believe it imprudent public policy to sanction a new area of tort liability on the grounds that “[t]he availability of insurance relieves the parents of direct financial responsibility for injuries sustained by their children….” [c]

The theory of insurance is that it is supposed to give financial protection against the occurrence of a known risk. Once a type of insurance exists, it is not supposed to encourage the creation of new actions at law. The rationale in this case says, in essence, that because liability insurance exists, this jurisdiction will now create a new *423 class of tort claimants who are eligible to recover because it is hoped most claims will be covered. It would be just as well for the majority to justify its new rule on the hope that suits will not be brought absent insurance coverage.

The whole principle of insurance becomes distorted when the presence of insurance encourages new kinds of liability. As additional types of liability are permitted by the court, the insurance companies must either raise policy premiums or exclude coverage as to that particular risk. This latter approach, which is both logical and lawful, if chosen, would eliminate the very reason for the court’s holding in the first place. In the meantime, we encourage collusive suits where no adversity exists,[12] or pit family members against each other in true adversity.

Permit me to ask some unanswered questions where insurance is not a part of the scheme. Does our new rule permit actions for negligent failure to seek medical treatment or diagnosis, or to provide special education? Moreover, with abortions being lawful, may a child now sue a parent for wrongful birth if he is born with a foreseeable defect? Through a “case-by-case” process, we will find out sooner or later.

The rearing of a child is a unique and delicate responsibility. The teaching, nurturing and disciplining functions performed by every parent vary. They are a function of the social, economic and religious circumstances in every household. To subject a parent to liability based upon near indefinable standards will, I fear, have a detrimental impact on the family unit. The threat of a tort suit could shackle a parent and prevent the flexibility needed to exercise parental control. As a child progresses through the more intractable stages of adolescence, a parent’s fear of being sued must clearly undermine the exercise of parental authority, and thus the family structure. These concerns loom larger as our society grows more litigious.

I fear the majority has thought precious little of the consequences. They would no doubt justify their holding on the ground that they simply compensate injury by making the one at fault pay. But how will this really work? In a family structure it is usual to have both parents share in the rearing function. If one parent causes an injury and is at fault, does the other parent owe a duty to the injured child to seek recovery? I suppose so, though we do not say so. If that parent, out of concern for other children or simple devotion to the other parent, or negligence, fails to pursue recovery until a case cannot be proved, what of that parent’s liability? Can an older child, upon reaching majority, sue within the limitations period and deprive younger siblings of the family income or assets? I am sure the response is—“we will decide those cases later ‘on a case-by-case basis.’ ” Such tinkering with the already fragile family structure by judges with no formal training or experience in such matters is ill-advised. It tears at family unity. With or without liability insurance, it unavoidably pits one child against any others for limited family resources and one parent against the other. At a time when families find it hard or impossible to exist without both parents working, we now create a competition for income within the family. And insurance is not the palliative. When a claim is made, the policy can be canceled or the premium increased. In automobile accidents this can be devastating to the family.

Moreover, I anticipate that pressure to sue one or both parents will strain the moral fiber which holds families together. Well-structured families will probably ignore our permissive holding. Those not so stable will find little solace in their lucre when they discover the inevitable decay in *424 their moral fiber. Should one of a number of children get a greater share of family assets or in some other way burden the others because one or both parents caused an injury? What “next friend” will make that choice and at what price within the family? I cringe at this holding and what it can mean to our most precious national resource—the family. It foists upon parents, or other family members such as grandparents, aunts and uncles, a choice that can only be described as damnable. What we have wrought I am not sure, but of this I am certain—it is an intruder into any family circle as much as any burglar or disease. And what is worse, it rides a steed called law.

I opt for immunity and family unity; so I dissent.

BELSON, Associate Judge, with whom Chief Judge PRYOR joins, dissenting:

I write separately because I prefer to state narrowly the reason I think this court should not abrogate the doctrine of parental immunity.[***]

[T]he United States Court of Appeals, by unmistakable implication, accepted the District Court’s conclusion that minor children may not sue their parents in tort. Perchell v. District of Columbia, 144 U.S.App.D.C. 122, 123–24, (1971) The court expressly modified “[t]he doctrine of parental immunity as applied in Dennis v. Walker ” to allow the defendant to sue for contribution from the minor plaintiffs’ father, despite the fact that parental immunity barred the minor plaintiffs themselves from suing him. Id. at 124, 444 F.2d at 999. By so modifying the doctrine of parental immunity, the court implicitly acknowledged its existence in this jurisdiction. Although not binding upon this court, [c] Perchell reflects what the state of the law regarding parental immunity has been in the District of Columbia.

Given this jurisdiction’s consistent adherence, until now, to the doctrine of parental immunity, the majority decision’s departure from the doctrine reflects a determination of public policy better suited to consideration by the District of Columbia Council. As an elected legislative body, the Council is in a better position to weigh competing policy considerations such as the potential for collusive lawsuits, divisiveness in family *425 structures, and the need to compensate tort victims.

Note 1. What is the holding in this case? What is its practical effect? What rationales does it cite in support of its ruling? What role does liability insurance play in its view of the issue?

Note 2. What do you suppose is the significance of the court’s stating that it is not overruling prior case law but simply choosing not to adopt parental immunity? How is the majority’s view of this issue different from the dissenting opinions on that point?

Note 3. What does the court mean by “general tort immunity between parent and child” when it writes the following: “In 1977 the American Law Institute completely rejected general tort immunity between parent and child when it published section 895G of the Restatement (Second) of Torts”?

Note 4. The most common justifications for adopting parental immunity have included (1) maintaining family harmony; (2) preserving parental authority over the discipline, supervision, and care of children; (3) preventing fraud and collusion between family members; and (4) protecting family finances and resources from depletion in favor of one child at the expense of others. In many jurisdictions, if any parental immunity has been retained, it is limited to the kinds of discretion associated directly with parental choices (e.g. setting bedtimes, making nutritional choices, selecting medical treatment) rather than with “garden-variety” neglience or ordinary, non-parental acts of discipline and supervision. Does this line-drawing seem to you to resolve the issue well? Why or why not?

Note 5. What concerns seem most to animate the dissent?

Note 6. Is the dissent correct that the majority is “creating new legal rights and duties” within the family, and in its assertion that it does so on the basis of the availability of liability insurance? The dissent writes: “The majority notes the prevalence of liability insurance as its primary justification for creating new legal rights and duties within the family. I believe it imprudent public policy to sanction a new area of tort liability on the grounds that ‘[t]he availability of insurance relieves the parents of direct financial responsibility for injuries sustained by their children….’ [c] ‘Once a type of insurance exists, it is not supposed to encourage the creation of new actions at law.’”

Note 7. The second, shorter dissent makes two main points. What are they? Can you see how the second bolsters the first?

Immunity and Allocation of Liability

One challenge associated with identifying immunities in a given case is the effect they may have when multiple parties are at fault and one of them is protected by an immunity. This next case illustrates the challenging policy issues at the intersection of immunity, comparative fault and joint and several liability.

Smelser v. Paul, Supreme Court of Washington (2017)
(188 Wash.2d 648)

*649 This case concerns the intersection of the doctrine of parental immunity with the system of proportionate liability under chapter 4.22 RCW. Two-year-old *650 Derrick Smelser was run over while playing in his yard by a car driven by the defendant, Jeanne Paul. At trial, Paul was allowed to assert an affirmative defense that the child’s father was partially at fault based on negligent supervision of the child. Instructed under RCW 4.22.070, the jury determined the father was 50 percent at fault. However, the trial court refused to enter judgment against the father based on the parental immunity doctrine. The result was that the child’s recovery against the driver was reduced by 50 percent. The Court of Appeals affirmed. Smelser v. Paul, noted at 193 Wash.App. 1014, 2016 WL 1306678, review granted, 186 Wash.2d 1002, 380 P.3d 453 (2016). We reverse and hold that under chapter 4.22 RCW and our case law, no tort or fault exists based on the claim of negligent supervision by a parent.

When he was two years old, Derrick[13] was playing in his father, Ronald Smelser’s, driveway. Respondent Paul, the father’s then girlfriend, had been visiting and had parked her truck in the driveway. As Paul started to drive away, she hit Derrick, who “was pulled under the vehicle and dragged for a distance,” and suffered severe injuries. Clerk’s Papers (CP) at 300. [Remaining references to the record omitted] Derrick’s father was home at the time but did not witness the accident. Derrick’s five-year-old brother did witness the accident, and when the father heard Derrick’s brother, Dillon, screaming, he looked in that direction and saw Derrick under Paul’s truck.

This lawsuit was brought on behalf of Derrick against Paul based on negligence. Paul admitted the basic facts of the accident, but asserted as an affirmative defense that Derrick’s father (who was not named as a defendant in the original complaint) was either partially or entirely responsible for the injuries based on a theory of negligent supervision. Derrick moved for summary judgment, arguing that *651 no apportionment of fault to the father was allowable as a matter of law. The court denied summary judgment. Derrick thereafter amended his complaint to include the father as a defendant. The amended complaint did not allege that the father was negligent or otherwise at fault in any way, but stated only that “Defendant Paul also contends that Defendant Ronald Smelser was concurrently negligent and/or engaged in willful misconduct which was a proximate cause of Plaintiffs’ injuries.” The father never appeared as a party in the suit, and the court entered an order of default against him.

The case proceeded to a jury trial. Although the father had never appeared as a party, he was called as a witness. Derrick’s theory of the case was that Paul was the only one who was negligent, that her negligence was the sole proximate cause of Derrick’s injuries, and that the jury was instructed that Derrick had the initial burden of proving that Paul was negligent and had caused his injuries. The jury was also instructed to then consider whether Paul had met her burden of proving, as an affirmative defense, that the father was also negligent. The jury was permitted to apportion fault to the father only if Paul met her burden of proof. The jury found that both Paul and the father were negligent and that both proximately caused Derrick’s injuries. On a special verdict form, the jury attributed 50 percent of the damages to Paul and 50 percent to the father. Paul proposed the court enter a judgment against her only for the 50 percent of damages apportioned to her by the jury. Derrick objected, proposing that “a ‘joint and several’ Judgment be entered against both Jeanne Paul and Ronald Smelser for the entire amount of Derrick’s damages.” Paul, however, argued that a judgment could not be entered against the father due to parental immunity, and noted that joint and several liability is allowed only where there are two or more “defendants against whom judgment is entered.” RCW 4.22.070(1)(b).

*652 The court entered judgment as proposed by Paul for 50 percent of the damages found by the jury. It did not enter any judgment against the father. The Court of Appeals affirmed. We granted review [to determine] … [w] hether, consistent with the parental immunity doctrine, a parent can be assigned fault under chapter 4.22 RCW based on negligent supervision. … This case requires us to consider the proportionate liability scheme in chapter 4.22 RCW in light of the common law doctrine of parental immunity. Chapter 4.22 RCW was enacted in 1986 and, in general terms, was intended to modify certain principles of tort law. Under specific situations, the statute established a system of proportionate fault, modifying the rule of joint and several liability. In situations involving a fault-free plaintiff, joint and several liability remains as to persons or entities against whom judgment is entered. The centerpiece of chapter 4.22 RCW is RCW 4.22.070. RCW 4.22.070(1) provides:

In all actions involving fault of more than one entity, the trier of fact shall determine the percentage of the total fault which is attributable to every entity which caused the claimant’s damages except entities immune from liability to the claimant under Title 51 RCW. The sum of the percentages of the total fault attributed to at-fault entities shall equal one hundred percent. The entities whose fault shall be determined include the claimant or person suffering personal injury or incurring property damage, defendants, third-party defendants, entities released by the claimant, entities with any other individual defense against the claimant, and entities immune from liability to the claimant, but shall not include those entities immune from liability to the claimant under Title 51 RCW. Judgment shall be entered against each defendant except those who have been released by the claimant or are immune from liability to *653 the claimant or have prevailed on any other individual defense against the claimant in an amount which represents that party’s proportionate share of the claimant’s total damages. The liability of each defendant shall be several only and shall not be joint except:


(b) If the trier of fact determines that the claimant or party suffering bodily injury or incurring property damages was not at fault, the defendants against whom judgment is entered shall be jointly and severally liable for the sum of their proportionate shares of the claimants [claimant’s] total damages.

(Second alteration in original) (emphasis added). Under RCW 4.22.070, the foundation of fault apportionment is that all tortfeasors responsible to the injured plaintiff are identified and a percentage of fault is assigned among them. Relying on the clause “entities immune from liability to the claimant,” the lower courts allowed the jury to apportion fault to the father based on a claim of negligent supervision.

Before applying RCW 4.22.070, a preliminary issue that must be resolved is whether a tort duty exists from which fault can be found for negligent parenting.[14] The trial court and Court of Appeals failed to first determine whether a parent can be liable in tort for his or her child’s injuries based on a theory of negligent supervision. While cases have described the principle as a form of “parental immunity,” what the cases establish is that no tort liability *654 or tort duty is actionable against a parent for negligent supervision. Simply stated, it is not a tort to be a bad, or even neglectful, parent.

We comprehensively discussed the cases establishing this rule in Zellmer v. Zellmer, 164 Wash.2d 147, 188 P.3d 497 (2008). Zellmer involved a wrongful death claim brought based on the drowning death of a child while under the stepfather’s care. The suit alleged negligence and negligent supervision claims. We were urged to abolish our long standing parental immunity doctrine. We rejected that argument and held the claim was barred. Important to the analysis and conclusion in Zellmer is the analysis of our case law and the principles we have established.

We reasoned that:

this court has consistently held a parent is not liable for ordinary negligence in the performance of parental responsibilities. Jenkins [v. Snohomish County Pub. Util. Dist. No. 1 ], 105 Wn.2d 99 [, 713 P.2d 79 (1986)] (disallowing contribution claim where parents allowed child to wander free in neighborhood; child electrocuted at utility power station); Talarico v. Foremost Ins. Co., 105 Wn.2d 114, 712 P.2d 294 (1986) (disallowing negligent supervision claim where parent started backyard fire then left three-year-old son unattended, resulting in severe bums); Baughn v. Honda Motor Co., 105 Wn.2d 118, 119, 712 P.2d 293 (1986) (disallowing contribution claim where parents allowed sight-impaired child to ride motorbike, resulting in fatal crash); Stevens v. Murphy, 69 Wn.2d 939, 421 P.2d 668 (1966) (disallowing suit against divorced parent who negligently injured children while transporting them home from a scheduled visitation), [c]]; De Lay v. De Lay, 54 Wn.2d 63, 337 P.2d 1057 (1959) (disallowing negligence action against parent who instructed son to siphon gas, resulting in bum injuries); Cox v. Hugo, 52 Wn.2d 815, 329 P.2d 467 (1958) (disallowing contribution claim against parent who failed to prevent child from wandering into neighbor’s yard where she was burned by trash fire). [c].

*655 Zellmer went on to recognize when this principle applies:

There now appears to be nearly universal consensus that children may sue their parents for personal injuries caused by intentionally wrongful conduct. However, the overwhelming majority of jurisdictions hold parents are not liable for negligent supervision of their child, whether stated in terms of a limited parental immunity (among jurisdictions that have partially abrogated the parental immunity doctrine), parental privilege (among those that either abolished the immunity doctrine outright or declined to adopt it in the first instance), or lack of an actionable parental duty to supervise. [T]he primary objective of the modern parental immunity doctrine is to avoid undue judicial interference with the exercise of parental discipline and parental discretion. This rationale remains as vital today as it was in 1986. Parents have a right to raise their children without undue state interference. … Zellmer equated the doctrine to other areas of the law where no tort action exists. [***]

What our cases establish is that no tort claim exists based on negligent parental supervision. Where no tort exists, no legal duty can be breached and no fault attributed or apportioned under RCW 4.22.070(1).

Though parental negligence is denominated an “immunity,” we have emphasized that it is similar to how courts characterize discretionary governmental decision-making under the doctrine of “discretionary immunity.” Zellmer, 164 Wash.2d at 159-60, 188 P.3d 497 (recognizing that “[t]he parental immunity doctrine is similar to the ‘discretionary functions’ exception).

[In a prior case, we] reasoned:

Practically all jurisdictions that have broken varying amounts of ground in the abdication of governmental immunity from tort liability have judicially, if not statutorily, recognized that the legislative, judicial, and purely executive processes of government, including as well the essential quasi-legislative and quasi-judicial or discretionary acts and decisions within the framework of such processes, cannot and should not, from the standpoint of public policy and the maintenance of the integrity of our system of government, be characterized as tortious however unwise, unpopular, mistaken, or neglectful a particular decision or act might be.

Evangelical United, 67 Wash.2d at 253, 407 P.2d 440 (citations omitted). The direct link between such immunity and parental immunity recognized in Zellmer makes clear that just as it is not a tort for government to govern, it is not a tort for parents to parent. Bad parenting cannot be subject to “judicial second-guessing … through the medium of a tort action.” Zellmer, 164 Wash.2d at 160, 188 P.3d 497. …

Since 1896, Washington has recognized that the negligence of a parent cannot be imputed on a child. Roth, 13 Wash. 525, 43 P. 641. The interpretation of RCW 4.22.070 we adopt today ensures that RCW 4.22.020 and our common law *659 principles are not violated—a parent cannot be an at-fault party based on negligent supervision, thus, their negligent actions cannot be imputed on their child.

Under chapter 4.22 RCW, a determination of fault must precede any analysis of immunity; a parent is not liable for a child’s injuries based on a theory of negligent supervision. Our cases consistently recognize no tort action exists as a matter of law. While we call this “immunity,” it is akin to discretionary governmental immunity, judicial and quasi-judicial immunity, and similar doctrines establishing that the conduct in question is simply not tortious. Thus, there is no fault to be apportioned under RCW 4.22.070.

We reverse and remand to the trial court with instructions to enter judgment against Paul for the entire amount of Derrick’s damages found by the jury.

WE CONCUR: Owens, J.; Stephens, J.; Wiggins, J.; Gordon McCloud, J.

YU, J. (dissenting)

An innocent child is badly injured through no fault of his own. His injuries were caused by the combined fault of two different people. One of those people is immune from liability to the child. Thus, who should bear the financial consequences of that person’s immunity? Should the child be forced to bear the consequences and recover the damages caused only by the nonimmune person’s fault? Or should the nonimmune person be forced to bear the consequences and pay the child’s full damages, including those caused by the immune person’s fault?

The majority adopts the latter approach, and if we were considering this question in the first instance as a matter of policy, I would too. Unfortunately, it is not our decision in the first instance, and we cannot decide it as a matter of policy. The legislature has clearly determined that the plaintiff (in this case, the child) must bear the financial consequences where fault is apportioned to an immune entity *660 pursuant to RCW 4.22.070. I therefore respectfully dissent.

As the majority rightly notes, we have previously held that a parent cannot be liable in tort for injuries to his or her child if those injuries were caused by negligent parenting. Zellmer v. Zellmer, 164 Wash.2d 147, 155, 188 P.3d 497 (2008). But unlike a direct claim by a child or a contribution claim by a third party, allocating fault to an immune parent does not render the parent liable. In fact, RCW 4.22.070(1) expressly forbids entering judgment against an immune entity. The soundness of the parental immunity doctrine is not at issue in this case.

Rather, the actual issue presented is whether Jeanne Paul was properly allowed to raise an affirmative defense that pointed to another entity (who happened to be an immune parent) whose factual fault limited Paul’s liability to the damages actually caused by her own negligence. […]

I agree with the majority as a matter of policy, but I cannot agree with it as a matter of law. I therefore respectfully dissent.

Note 1. The court states that “the primary objective of the modern parental immunity doctrine is to avoid undue judicial interference with the exercise of parental discipline and parental discretion.” On these facts, is the conduct of the parent an “exercise of parental discipline and discretion”? Why or why not?

Note 2. Can you articulate what this phrase means: “Washington has recognized that the negligence of a parent cannot be imputed on a child”? What effect does it have in this case?

Note 3. This case provides an example of at least three conflicting purposes: protecting parents from immunity, compensating victims for injurious harm they suffer, and allocating fault precisely and fairly in the realm of comparative fault. Does the court strike the right balance, normatively, in your view? Do you see alternatives? Would these alternatives consist of acts by the legislature, decisions by courts, or some other alternative?

Note 4. What do you make of the dissent’s last line? What sort of argument is Justice Yu making?

Note 5. Which theories of justice, or which of tort law’s purposes, seem most to be driving this decision?

3. Governmental Immunity

At common law, governments enjoyed sovereign immunity from tort liability, based on the idea of the king’s divinity (per the Latin maxim, rex non potest peccare or the king is incapable of sinning/doing wrong). However, the United States federal government, as well as states and tribal government, have all chosen to limit or waive this immunity in some way (through the state constitution and/or statute). These states tend to retain immunity with respect to core governmental functions, however. Judges cannot be sued over their judicial opinions and legislators cannot be sued over the votes they cast or the legislative decisions they make. There are two kinds of immunity: absolute immunity and qualified immunity. You can think of the retention of immunity in certain areas as absolute. When the actions are critically important to government, we protect them from liability at all costs, no matter how negligent or malicious the acts may be. This immunity reflects that solutions other than tort law exist to redress such conduct, such as voting people out of office, demoting or firing them where possible, or, in earlier days perhaps, grislier political “solutions” such as outright coup d’état. Qualified immunity exists pursuant to case law or in connection with a statutory waiver of immunity or creation of liability. It tends to be heavily fact specific, and the defendant’s conduct can matter a great deal here, by contrast with the domain of absolute liability, in which the breadth or nature of the immunity shields the conduct itself from scrutiny.

The scope of governmental immunity is usually tied to the governmental function. For instance, the government is immune from suit against a United States postal worker with respect to their mail delivery (no negligence claims for mis-delivered mail, for instance, no matter how badly bungled the duty might be) but not for their vehicular accidents. Indeed, Congress passed the Federal Torts Claims Act (“FTCA”) to waive the federal government’s immunity in part to clarify this bifurcation of legal treatment pertaining to postal delivery, as the Supreme Court stated in holding that a woman injured by a negligently left stack of mail could recover:

[O]ne of the FTCA’s purposes was to waive the Government’s immunity from liability for injuries resulting from auto accidents involving postal trucks delivering—and thus “transmitting”—the mail. Nothing in the statutory text supports a distinction between negligent driving, which the Government claims relates only circumstantially to the mail, and Dolan’s accident, which was caused by the mail itself. In both cases the postal employee acts negligently while transmitting mail. In addition, focusing on whether the mail itself caused the injury would yield anomalies, perhaps making liability turn on, e.g., whether a mail sack was empty or full. It is more likely that Congress intended to retain immunity only for injuries arising because mail either fails to arrive or arrives late, in damaged condition, or at the wrong address, since such harms are primarily identified with the Postal Service’s function of transporting mail. The Government claims that, given the Postal Service’s vast operations, Congress must have intended to insulate delivery-related torts from liability, but § 2680(b)’s specificity indicates otherwise. Had Congress intended to preserve immunity for all delivery-related torts, it could have used sweeping language similar to that used in other FTCA exceptions, e.g., § 2680(i). Furthermore, losses of the type for which immunity is retained under § 2680(b) are at least to some degree avoidable or compensable through postal registration and insurance. The Government raises the specter of frivolous slip-and-fall claims inundating the Postal Service, but that is a risk shared by any business making home deliveries. Dolan v. U.S. Postal Serv., 546 U.S. 481, 482, 126 S. Ct. 1252, 1254 (2006)

Dolan treats the government’s delivery of the mail (i) as a governmental service with respect to the mail, and (ii) as “any business making home deliveries” with respect to the mail’s home delivery. Dolan’s reasoning reflects that governmental immunity drops away when the government’s conduct is not in some way special to the role of a governmental actor. Relatedly, many disputes over governmental immunity involve vicarious liability for the governmental employees whose conduct is at issue in such cases. (You may recall the “zany meat inspector hypo” in which a USDA employee jumped on the back of a friend, pulled the wool over his eyes and accidentally caused him to fall onto a meat hook and sustain significant injuries. The issue there in Lambertson v. United States was whether the conduct qualified as a battery versus a negligent act; see Module 2’s materials on battery. However, there was another pair of key issues in that fact pattern the hypo did not reach: whether the government’s immunity would apply to the conduct, and if not, whether vicarious liability would attach or whether the act was outside the scope of the employment from the start.)

Our first case turns to the scope of liability applicable to the government with respect to the discretion of the U.S. Forest Service in dealing with wildlife in parks.

The Discretionary Function Exception to Governmental Immunity

George v. U.S., District Court of M.D. Alabama, Fourth Division (1990)
(735 F. Supp. 1524)

The cases at bar arise from an alligator attack on Plaintiff, Kermit H. George, while he was swimming in the Open Pond Recreation Area of the Conecuh National Forest. Plaintiff, Janet H. George, seeks recovery for loss of consortium. Plaintiffs bring this action against the United States of America pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671, et seq. [hereinafter the Act]. [***] [Court’s Note: Pursuant to the agreement of the parties, this Court bifurcated the issue of damages pending a determination of whether liability existed.]

Mr. George was injured on July 26, 1986, in the Open Pond Recreation Area of the Conecuh National Forest. The recreation area, which includes a designated swimming area, is owned and operated by the United States Forest Service. On the day of the attack, Mr. George and his unleashed dog entered the area from the rear entrance and proceeded around the park to the swimming area. Mr. George’s dog preceded Mr. George into the water and then exited sometime after Mr. George had waded approximately chest deep into the designated swimming area. Shortly after his entrance into the water, Mr. George was attacked by a large alligator, which ultimately severed Mr. George’s right arm at the shoulder.

The Forest Service officials admit that they had knowledge of the presence in the Open Pond Area of the 11–to–12–foot alligator which attacked Mr. George. The evidence showed that, of the 74 confirmed, nonfatal alligator attacks in the neighboring State of Florida, 53 were committed by alligators in excess of five feet in length. Furthermore, Forest Service officials admit *1526 that they had received several complaints concerning the alligator prior to the attack on Mr. George. Additionally, the Government admits that it neither posted signs warning of the alligator nor attempted to remove said alligator.

Joe Brown, Forest Supervisor of all national forests in Alabama, Larry Hedrick, Wildlife Biologist for the Forest Service, Buddie Risner, Acting District Ranger for the Conecuh National Forest, John Maurer, Forest Technician, and Harris LeMaire, Forest Technician, were all employed by the United States Forest Service and were working within the scope of their employment as federal employees at all times relevant to these cases. All were aware of the presence of a large alligator, presumably the one which attacked Mr. George, in and near Open Pond within the seven-week period preceding the attack on Mr. George, which occurred on July 26, 1986. Their knowledge came from the following reports and observations [as well as at least 6 prior instances in which these entities saw firsthand, or received and reported complaints and concerns about large alligators, including at least two reports of alligators following people (one of which stated that a woman was followed 100 yards by a large alligator in the edge of the water). These reports repeatedly stated that the alligators appeared to have no fear of humans.]

During June and July, 1986, [various U.S. Forest Service officials] discussed the presence of a large alligator in and near Open Pond as reported and observed and the appropriate course of action to take regarding the alligator. [They] decided to take no immediate action other than monitoring the situation for several policy reasons, including their information that the alligator [***] had been in the area for many years and that the alligator had not attacked humans or domestic animals. They also were aware that the alligator was a protected species. [They] also believed that posting warning signs might suggest to the public that all potential natural dangers or risks would be posted. Finally, they thought that the risk of an alligator attack was minimal and that warning signs would unnecessarily frighten the public.

[T]he Government contends that the discretionary function exception [28 U.S.C. § 2680(a)] bars recovery. Finally, the Government asserts that Mr. George was contributorily negligent in either allowing his dog to enter the park unleashed, which was in violation of posted park regulations, or going swimming in an area Mr. George knew to be inhabited by alligators. [c]

DISCRETIONARY FUNCTION. Title 28 U.S.C. § 2680(a), provides that jurisdiction pursuant to 28 U.S.C. § 1346(b) shall not apply to:

“Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.”

*1528 Plaintiffs have alleged that Defendant was negligent in failing to warn users of the Open Pond area of the presence of alligators and/or failing to remove the alligator that attacked Mr. George in the swimming area. Defendant argues that such decisions are discretionary and, thus, insulated from liability by virtue of § 2680. The thrust of Defendant’s argument stems from its contention that the forest officials charged with supervision of the Conecuh National Forest were of the opinion that neither the alligator which attacked Mr. George nor any other alligator presented any danger to the persons who used the recreation areas. In support of this contention, Defendant introduced testimony by several forest officials that there had been only one confirmed alligator attack on a human in the Conecuh National Forest prior to the attack on Mr. George. Furthermore, the prior attack had been instigated by a blind alligator with a clubfoot which, subsequent to the attack, was captured and transported to South Carolina.[15]

The forest officials admit that they were aware of the presence of the alligator which attacked Mr. George for some time but that this particular alligator had exhibited no signs of aggressive behavior toward humans. Additionally, the forest officials state they had no knowledge of any incidents concerning the alligator that would require them to take remedial action.

Forest officials based their determination on the fact that the alligator which attacked Mr. George had merely been following park guests and employees. However, at least one witness, Warren Brown, testified that, while he was snorkeling in Open Pond, an alligator chased him onto the shore and “hissed” at him. Mr. Brown reported this incident to Forest Service officials sometime in 1983 or 1984. Additionally, Plaintiffs’ expert, Dr. Robert Mount, testified that alligators typically catch their prey by stealth as opposed to exhibiting obvious aggressive behavior.

Upon considering whether or not remedial measures were required, forest officials determined that the alligator(s) posed no threat to the park visitor or, at least, no more of a threat than poisonous snakes and other natural hazards which one would expect to be present in a national forest located in South Alabama. Based on these facts, coupled with specific regulations dealing with the removal of alligators, Defendant argues that the forest officials’ decision to neither remove the alligator, erect barriers around the designated swimming area, nor to post any warning signs was a discretionary function and, as such, shields the Government by virtue of § 2680(a), from tort liability under the Act.

This Court finds by a preponderance of the evidence that at least six incidents of aggressive alligator behavior had been reported to various forest officials. Additionally, the District Ranger of Conecuh National Forest from November, 1975, until May, 1986, William Gilder, testified that he reported the alligator problem to the Forest Service headquarters in Montgomery by letter of October 9, 1985, and suggested that signs be posted. Accordingly, this Court must determine if the discretionary function doctrine bars Plaintiffs’ instant suit, notwithstanding this Court’s finding that the Forest Service had actual knowledge of the alligator problem and failed to take any corrective or preventative measures.

*1529 The hallmark case expounding on and interpreting the discretionary function exception of § 2680 is Dalehite v. United States, 346 U.S. 15, 35–36, 73 S.Ct. 956, 967–968, 97 L.Ed. 1427 (1953), wherein the Court stated:

“It is unnecessary to define, apart from this case, precisely where discretion ends. It is enough to hold, as we do, that the ‘discretionary function or duty’ that cannot form a basis for suit under the Tort Claims Act includes more than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out the operation of government in accordance with official directions cannot be actionable.”

In finding that no liability existed with respect to a fertilizer explosion, the Dalehite Court distinguished between decisions “made at a planning rather than operational level.” Id., at 42, 73 S.Ct. at 971. The Dalehite Court further found that the Government had no knowledge of a probable danger with respect to the handling of the fertilizer. Id.

The Supreme Court in [***] Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988) … further refined the factors to be considered in determining whether the Government’s conduct is protected by § 2680. The Court stated:

“[***] [C]onduct cannot be discretionary unless it involves an element of judgment or choice. [c] Thus, the discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. In this event, the employee has no rightful option but to adhere to the directive. And if the employee’s conduct cannot appropriately be the product of judgment or choice, then there is no discretion in the conduct for the discretionary function exception to protect. [c]. * * *

“Moreover, assuming the challenged conduct involves an element of judgment, a court must determine whether that judgment is of the kind that the discretionary function exception was designed to shield. The basis for the discretionary function exception was Congress’ desire to ‘prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.’ [c] The exception, properly construed, therefore, protects only governmental actions and decisions based on considerations of public policy. (‘Where there is room for policy judgment and decision there is discretion’). In sum, the discretionary function exception insulates the Government from liability if the action challenged in the case involves the permissable exercise of policy judgment.” [c]

The test to be applied to the cases at bar is, thus, whether the forest officials had discretion to make the choice of not taking any remedial measures with respect to the alligator problem, and, if so, whether such choice was one which Congress intended to shield from liability by virtue of § 2680(a).

[***] In Bowman v. United States, 820 F.2d 1393 (4th Cir.1987), plaintiff drove his vehicle off a federally-controlled parkway in the Shenandoah National Park. Id., at 1393. The plaintiff contended that the Government was negligent in failing to erect guardrails along the parkway or in failing to post signs warning of the steep embankment. The Court, in affirming the district court’s dismissal of the case, held that the discretionary function doctrine barred plaintiff’s suit. Id., at 1395. The Court stated that whether the decision to take no action “grew out of a lack of financial resources, a desire to preserve the natural beauty of the vista, a judgment that the hazard was insufficient to warrant a guardrail, or a combination of all three is not known. What is obvious is that the decision was the result of a policy judgment.” Id. However, the Court clearly pointed out that the danger was open and obvious and, further, that the primary purpose of the parkway was “not to facilitate transportation and travel”.

In the cases at bar, the presence of the alligator was not open and obvious to a person who chose to use the swimming area. Furthermore, one of the primary purposes (if not the primary purpose) of the national forest was to provide a recreation area for individuals who chose to visit the park. These two factors clearly distinguish Bowman from the instant cases. [***]

In the cases at bar, several of the forest officials testified that the alligator involved in this attack had lost his fear of man. Therefore, Defendant consciously disregarded a known risk by failing to take any steps whatsoever to protect users of the swimming area.

Based on the authority cited hereinbefore, it is the opinion of this Court that *1533 no reasonable range of choices existed as to the failure to take some action and, thus, the discretionary function exception is inapplicable. 28 U.S.C. § 1346(b) provides:

“Subject to the provisions of Chapter 171 [discretionary function exception] of this title, the district courts * * * shall have exclusive jurisdiction of civil actions on claims against the United States, * * * for injury * * * or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”

In this Court’s opinion, the fact that the Government chose not to guard or warn of the alligator(s) does not invoke the protection of § 2680(a). Based on the evidence presented to this Court, no element of choice was presented when the Government failed to remove or warn of the presence of alligator(s) in the swimming area. Thus, § 2680(a) does not apply. Since the danger presented by the reptile(s) was known by the forest officials, there was no discretion to fail to take any remedial measures. Surely, it cannot be contended that the forest officials had discretion to decide whether overriding policy considerations of protecting the alligator(s) and the natural state of the area outweighed the safety of humans using the designated swimming area. Despite the fact that regulations were in place to not only protect the alligator(s), which at the time of this incident were on the endangered species list, but to also preserve the natural state of the park, this Court finds that the existence of such does not invoke the protection of § 2680 in derogation of the rights of humans.

Irrespective of the existence of such regulation and the interpretation thereof, it cannot be gainsaid that the Government, the same as a private individual, is under a duty to protect others from hidden dangers they are unaware of when such dangers pose a significant risk of serious bodily injury or death. Thus, no choice presented itself to the forest officials as to whether or not to take remedial measures to protect the individuals using the area.

This Court concedes that the decisions of whether to have a swimming area and what measures to take to protect individuals once the alligator problem arose were vested within the sound discretion of the Forest Service and, thus, protected from “judicial second-guessing” by § 2680. However, the decision to do nothing in spite of the known danger was not an option, in this Court’s opinion, the Forest Service had available to them. To contend that the decision to do nothing was discretionary because the Forest Service was under an affirmative duty to protect the alligator(s) and the scenic beauty of the park is ludicrous. If this Court were to hold that the discretionary function exception barred Plaintiffs’ suits, it would, in effect, be elevating the well-being of an alligator to a level deserving more protection than that of a human. The park was obviously built to provide a recreational area for those desiring to use such, not as a wildlife habitat where the safety of humans through their incidental use takes a back seat to the viewing of reptiles in their natural habitat. If the Forest Service were desirous of this result, it would not have created the recreational areas. The decision to do so was discretionary, but once the decision was made, the Forest Service was under a duty to act reasonably for protection of humans, particularly against hidden dangers known to the Service. Failing such standard, the Government is liable to Plaintiffs in the cases at bar. Accordingly, it is the opinion of this Court that no reasonable range of choices existed with respect to the Forest Service’s inaction, and, as such, the discretionary function doctrine of 28 U.S.C. § 2680(a) is inapplicable. Therefore, this Court finds that the Government’s discretionary function defense must fail.

[***] CONTRIBUTORY NEGLIGENCE. Defendant’s final arguments in support of a finding in its favor concern two separate and independent contentions of contributory negligence on the part of Mr. George. Defendant’s first contention is that Mr. George was aware of the presence of alligator(s) in Open Pond and, thus, assumed the risk of injury when he entered the swimming area. Defendant’s second theory of contributory negligence arises from Mr. George’s failure to have his dog on a leash while in the park which, thus, allowed the dog to precede Mr. George into the swimming area. Defendant contends that the presence of the dog attracted the alligator into the swimming area. This Court is of the opinion that both of Defendant’s contentions are without merit.

Mr. George testified that he knew alligators were present in Open Pond but that he was unaware that there were any the size of the reptile that took his arm. This Court finds by a preponderance of the evidence that Mr. George was not aware that an alligator approximately 11 feet in length inhabited the Open Pond waters. Furthermore, this Court finds that Mr. George had no knowledge of the danger presented by his entering the swimming area. Thus, this Court finds that Mr. George did not assume the risk of his injury by entering the swimming area on July 26, 1986, notwithstanding his knowledge of the presence of alligators in Open Pond.

As briefly set forth previously, Defendant’s second theory of contributory negligence arises from the fact that Mr. George violated park regulations by allowing his unleashed dog to accompany him into the park on the occasion in question. The asserted contributory negligence is that Mr. George violated the National Park’s leash law and that this violation was a proximate cause of the loss of his arm and related damages. The fact that Mr. George’s dog violated regulations by being unleashed is and was of little interest to *1536 this Court or to the subject alligator. It may be speculated that the dog’s presence lured the alligator to Mr. George. There is some evidence that alligators are known to enjoy dog meat, but the preponderance of the evidence shows that alligators are not discriminatory in their tastes and are well known to dine on whatever is convenient. The presence in this alligator’s stomach of fish stringers, a broken bottle neck and a pine cone is ample evidence that, had the dog been convenient, the leash would not have interfered with the alligator’s breakfast, whether or not this particular alligator had a preference for dog meat. This Court finds that the fact, that Mr. George violated park regulations by not keeping his dog on a leash in the park, was not a proximate or contributing cause to his injuries and damages.

Therefore, this Court finds that the Government is liable to the Plaintiffs. An Order will be entered in accordance with this Opinion.

Note 1. The court articulates the two-step test for applying the discretionary function exception: (1) whether the officials in question had discretion to make choices and (2) whether such choice was one which Congress intended to shield from liability by virtue of § 2680(a). Recall the purposes behind the FTCA as stated at the start of this section. What sorts of choices do you think are likely to be shielded from liability?

Note 2. The question of discretion exists to protect decisional autonomy under the same rationale applied to the protection of parental autonomy under theories that supported parental immunity.

In Smelser v. Paul, supra the court likens parental immunity to governmental immunity. In a section edited out of that opinion, it writes about both: “the purpose of immunity is to provide sufficient breathing space for making discretionary decisions, by preventing judicial second-guessing of such decisions through the medium of a tort action.”

One could carry the analogy further. Where some parental immunity has been retained, it is in spheres in which policymakers intended to shield parents from liability, such as the core decisions involved with raising children. Whether to come to a full or a rolling stop at a stop sign, or how well to maintain the brakes on one’s automobile, are not the kind of choice that policymakers wished to shield from liability (or wish to shield, in the jurisdictions that retain some form of parental immunity). Do you agree with the court that parental and governmental decision making are sufficiently similar to analogize in this way? Even if both require breathing space, do both deserve it equally? Is the case stronger for parents or governments, in your view?

Note 3. A persistent complexity in cases involving the discretionary function exception is whether choosing not to take affirmative steps in a given case is a legitimate choice, that is,one of the choices protected under this form of immunity. Or in the alternative, is doing nothing not one acceptable choice among many but rather a breach of duty in the form of nonfeasance? The answers are highly fact-dependent and do not produce a coherent body of case law with a general rule.

In George, the court identifies the government’s duty “to protect others from hidden dangers they are unaware of when such dangers pose a significant risk of serious bodily injury or death” and concludes that it was not a choice the forest service officials could make, to refrain from taking remedial measures. It clarified that “the decisions of whether to have a swimming area and what measures to take to protect individuals once the alligator problem arose were vested within the sound discretion of the Forest Service and, thus, protected from ‘judicial second-guessing’ by § 2680” (my emphasis). Would the case have come out differently if the Forest Service had made halfhearted, ineffective attempts to address the alligator problem? What do you imagine is the easiest (lowest burden) set of steps the Forest Service could have taken if it wanted its discretion preserved under this ruling? Was George effectively holding the Forest Service strictly liable for the presence of this large, aggressive alligator? If so, what conduct would you expect to see from the Forest Service in the future?

Note 4. What is the government’s theory of contributory negligence against George and why does it fail?

Exam tip: When analyzing governmental immunity and the applicability of the discretionary function exception to waiver of sovereign immunity under the FTCA, be sure to evaluate *both* prongs of the two-step test set out at § 2680! First, did the government actors in question have discretion to make choices? Second, were the choices over which they had discretion the kind Congress intended to shield from liability through § 2680(a)? It is easy for students to get lost in the analysis of whether there was sufficient discretion or choice under prong one and to forget to complete the analysis required under prong two. That’s an important oversight because the second prong sets the scope of the discretion and failing to attend to it would make the discretionary function exception swallow the rule.

Check Your Understanding (4-5)

Question 1. On what grounds does the court in George hold that § 2680 does not apply?

Question 2. A large nest of so-called “murder hornets” was discovered by a U.S. Forest Ranger in a park under their jurisdiction in Washington state. The nest contained scads of these rare, extremely dangerous insects. A person with a hornet sting allergy who visits this park is stung and severely injured by the encounter with one of these murder hornets two weeks after the ranger has done nothing to warn the public or to remove the nest. Under the FTCA’s waiver of governmental immunity it is possible that the ranger’s conduct could result in liability being allocated to the United States on a theory of vicarious liability. However, if the FTCA’s § 2680 discretionary function exception applies, the ranger’s conduct will fall outside the FTCA’s waiver of immunity (thus making the U.S. government immune from liability in this case).

Note: Ordinarily, under the second step of discretionary function analysis, you would need to determine whether decisions about insect management and other wildlife in federally administered state parks is the kind of discretionary decision making that Congress sought to shield from liability under the FTCA’s § 2680. However, for this question, you may assume it is generally the kind of discretionary decision making Congress sought to protect through enactment of the discretionary function exception.

Which of the following selections is most likely to fail to qualify for the protection of the discretionary function exception?

Revisit the facts of Garrison v. Deschutes (Module 3, Causation), in which the Supreme Court of Oregon held that it was not negligent when Gary Garrison was severely injured in a fall at the Fryrear transfer station, in part because the defendant’s failure to warn had not caused Garrison’s injuries. Recall that there were two other issues mentioned but omitted from that version of the opinion: allegedly negligent design and governmental immunity. We turn to those now.

Garrison v. Deschutes Cty., Supreme Court of Oregon (2002)
(334 Or. 264)

This personal injury case requires us to examine the scope of the immunity from liability that the Oregon Tort Claims Act (OTCA) grants to certain kinds of discretionary decisions of a public body. The case arose when plaintiff Gary Garrison[16] was injured when he fell from a raised concrete slab onto a lower slab at a Deschutes County (county) refuse transfer station. Plaintiffs brought the present action against the county, alleging three specifications of negligence. The county moved for summary judgment, asserting that, by virtue of ORS 30.265(3)(c) … it was immune from liability for the acts that plaintiffs alleged. The trial court agreed. On plaintiffs’ appeal, the Court of Appeals affirmed, holding that: (1) the doctrine of qualified immunity protected the exercise of discretion by county employees in designing the transfer station; and (2) the county’s failure to warn plaintiffs of the obvious danger of falling off the higher slab did not expose plaintiffs to a greater risk of harm than if they had been warned. Garrison v. Deschutes County, 162 Or.App. 160 (1999). We allowed plaintiffs’ petition for review and now affirm. [***]

A private landowner or occupier of land in a position similar to the county’s would be required to take care to protect patrons on the premises from injuries resulting from known, dangerous conditions on the premises or, at least, to warn them of the danger. Woolston v. Wells, 297 Or. 548, 557-58 (1984). [***] The county is not a private entity, however. The question before the court, therefore, is whether the fact that *273 the refuse station is not privately owned and operated alters the analysis. The answer to that question lies in the applicability of the OTCA, ORS 30.260 et seq., which provides that public bodies generally are liable for their torts, except in certain limited circumstances.

In this case, the county has asserted throughout that one of those circumstances pertains here. It contends that it is entitled to “discretionary function” immunity under ORS 30.265(3)(c), which we again set out here for the convenience of the reader. That subsection provides, in part:

“Every public body and its officers, employees and agents acting within the scope of their employment or duties * * * are immune from liability for:

“ * * * * *

“(c) Any claim based upon the performance of or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.”

By its terms, ORS 30.265(3)(c) confers immunity on the county, as a public body, from liability for the negligent performance or nonperformance of a “discretionary function or duty.” The OTCA does not define that phrase. However, the statute’s meaning and scope have been fleshed out through years of litigation. For example, this court has discussed the meaning of the term “discretion” in ORS 30.265(3)(c) on several occasions. In McBride v. Magnuson, 282 Or. 433, 437 (1978), the court stated that conduct is “discretionary” in the sense that immunity attaches to its negligent performance if the decision is the result of a choice among competing policy considerations, made at the appropriate level of government:

“[I]nsofar as an official action involves both the determination of facts and simple cause-and-effect relationships and also the assessment of costs and benefits, the evaluation of relative effectiveness and risks, and a choice among competing goals and priorities, an official has ‘discretion’ to the extent that he has been delegated responsibility for the latter kind of value judgment.”

This court also has stated that ORS 30.265(3)(c) extends immunity “to decisions involving the making of policy, but *274 not to routine decisions made by employees in the course of their day-to-day activities, even though the decision involves a choice among two or more courses of action.” [c]

Notwithstanding the foregoing, the court has stated that the “discretionary immunity” doctrine does not immunize a decision not to exercise care at all, if action of some kind is required:

“A public body that owes a particular duty of care * * * has wide policy discretion in choosing the means by which to carry out that duty. * * * The range of permissible choices does not, however, include the choice of not exercising care.” Mosley v. Portland School Dist. No. 1J, 315 Or. 85, 92, (1992) (citations omitted).

In other words, the decision whether to protect the public by taking preventive measures, or by warning of a danger, if legally required, is not discretionary; however, the government’s choice of means for fulfilling that requirement may be discretionary. [cc]

Moreover, only those decisions that are made by officials in a position of authority are immune from liability. [***] However, in assessing whether, in a particular case, a decision was made by the kinds of decision-makers to whom the statutory immunity was intended to extend, the emphasis properly is on the nature of the decision-making, not necessarily the level of office. “Although policy discretion is more likely to be found at or near the level of political responsibility, it is not simply a matter of the defendant’s office but of the scope and nature of the choices delegated to him.” [c] [***] *275

With the foregoing standards in mind, we turn to the facts of the present case to evaluate whether the decision to build and maintain the refuse transfer station without erecting barriers at the edge of the platform that might prevent people from falling and the decision to design the station so as to require people using the facility to back a vehicle onto the platform to dump refuse were decisions that involved the making of policy by people who had been delegated the authority to make that type of policy judgment.

Driver’s affidavit, which is undisputed, demonstrates that he and Rice, in the course of selecting a design for the transfer station, made various decisions that were of a type that this court previously has considered to be “discretionary” or “the making of policy”: They considered various design options for the station; they evaluated the relative effectiveness, safety and risks, as well as the relative costs and benefits, of constructing the station with and without the platform; they also considered the added maintenance and resulting cost of adding a fence, railing, or other barrier to the platform, as well as whether adding a fence, railing, or other barrier would make the platform more difficult or more dangerous to use. In the end, they concluded that the design that they ultimately chose-a platform that required users to back a vehicle up to dump refuse, with no barrier other than the railroad tie to protect users from falling-was the safest, least expensive, *276 and easiest to use. Thus, in selecting the final design under those criteria, Rice and Driver exercised the kind of discretion that ORS 30.265(3)(c) protects-a protection that extends to the county’s operation of the refuse transfer station in accordance with that design.

Plaintiffs have attempted to characterize that final design decision differently. They contend that the county had a duty to protect the public and that the county did not satisfy that duty merely by “considering” public safety and then deciding that safety measures would not be adopted, whether due to expense, inconvenience, or some other reason. In effect, plaintiffs assert that the county owed a duty of care to the public that used the refuse transfer station and simply chose not to exercise care. Under this court’s decision in Mosley, they contend, that choice was not within the permissible range of options available to the county and, therefore, was not entitled to immunity.

Plaintiffs’ argument is premised on a mischaracterization of the undisputed facts. According to Driver’s affidavit, Driver and Rice actively considered the relative risks and benefits of including in the final design just the sort of fall protection devices that plaintiffs contend are required to protect the public. For various reasons, Driver and Rice concluded that protective barriers actually would make the platform less safe. We assume for purposes of this opinion that that conclusion might have been both wrong and negligently reached. Nonetheless, the uncontroverted evidence of that thinking process establishes conclusively that this is not a case in which the decision-makers simply disregarded their duty to protect the public. On the contrary, with their decision, even if it was flawed, they exercised their discretion and chose to protect the public in a particular way. Plaintiffs wish to argue that the county should have done something more, or something different, but that argument is the kind of second-guessing that is defeated by immunity under ORS 30.265(3)(c).

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

*280 DURHAM, J., dissenting.

For the reasons stated below, I believe that the majority misapplies the statutory immunity for the performance of a “discretionary function or duty” set out in ORS 30.265(3)(c). [***] Plaintiffs contend that, on the date of the accident, defendant invited the public to use its refuse facility and that plaintiffs were business invitees at the time of the accident. According to plaintiffs, defendant knew that the large concrete garbage pit on the premises created an unreasonably dangerous condition due to the lack of any fall protection device, but failed to use reasonable care to eliminate the risk of injury to invitees or to warn of the danger.

Plaintiffs’ claim invokes the legal duty owed by a land occupier to business invitees. This court summarized that duty in Woolston v. Wells, 297 Or. 548, 557-58 (1984):

“In general, it is the duty of the possessor of land to make the premises reasonably safe for the invitee’s visit. *281 The possessor must exercise the standard of care above stated to discover conditions of the premises that create an unreasonable risk of harm to the invitee. The possessor must exercise that standard of care either to eliminate the condition creating that risk or to warn any foreseeable invitee of the risk so as to enable the invitee to avoid the harm.”

[***] Defendant’s duty to business invitees, as described in Woolston, is not a “discretionary function or duty,” to use the terms of ORS 30.265(3)(c).[17] Rather, defendant’s duty, as *282 summarized in Woolston, is nondiscretionary. That is, the law has made a policy choice, for defendant as well as all other landowners and occupiers who invite customers to enter their property, that mandates compliance with the legal duty described in Woolston. As this court explained in Miller v. Grants Pass Irr. Dist., 297 Or. 312 (1984), a public body may have discretion in choosing how it will satisfy its duty to the public but it has no discretion to choose not to fulfill its legal duty:

“If there is a legal duty to protect the public by warning of a danger or by taking preventing measures, or both, the choice of means may be discretionary, but the decision whether or not to do so at all is, by definition, not discretionary.

“This is so whether the duty derives from statutory or from common law. * * * The law itself has made that much of a policy choice. When different precautions might satisfy this duty, however, the choice of which one to use may be discretionary.” Id. at 320.

The passage from Miller, quoted above, confirms that a public body has no discretion to decide whether to satisfy a legal duty imposed by Oregon common law. Defendant simply is incorrect in arguing (1) that the range of its permissible discretionary choices included the choice to do nothing to comply with the duty stated in Woolston, or (2) that its consideration of policy-related criteria, coupled with a choice to take no precautions against the risk of falls at the edge of the *284 pit, qualifies under Miller as a choice of means to satisfy the duty described in Woolston. [***]

More puzzling is the majority’s effort to portray defendant’s conduct as an “exercise [of] care” that defendant’s agents believed to be more safe than what plaintiffs sought. Id. The assertion that defendant did exercise care in designing the refuse pit contradicts the majority’s assumption that defendant’s decision to forego any fall protection devices “might have been both wrong and negligently reached.” Id. at 276. Moreover, because the case is before the court on summary judgment, we must construe the evidence in the light most favorable to plaintiffs. In view of the contention of plaintiffs’ expert witness that the design of the refuse pit was unreasonably dangerous, the majority’s conclusion that defendant exercised care is both irrelevant and impermissible.

Lastly, the mere belief of defendant’s agents in the greater safety of their design is irrelevant. Plaintiffs rely on defendant’s failure to take any precautions to eliminate the known risk that customers might fall into the refuse pit-a nondiscretionary legal duty imposed by Oregon law. See Woolston, 297 Or. at 557-58 (describing legal duty). While the confidence displayed by defendant’s agents is understandable, it does not justify immunizing defendant for failing to adopt any precautions against a known risk of injury from falls, in accordance with Oregon law.

This is not a case in which defendant made a choice to use a device to protect against falls, but the device simply failed to function. Rather, defendant seeks discretionary immunity for its decision not to use any protection against the risk of falling, i.e., choosing not to use reasonable care to “eliminate the condition creating that risk or to warn any foreseeable invitee of the risk so as to enable the invitee to avoid the harm.” Id. at 558. Defendant’s argument, carried to *287 its logical conclusion, would immunize a public body’s decision to disregard its nondiscretionary legal duty, simply because the public body believed that its policy reasons for avoiding its legal duty were superior to the policy reasons that supported creation of the legal duty in the first instance. The legislature did not intend that construction of ORS 30.265(3)(c).

Because defendant has not demonstrated that it is entitled to immunity from liability at this stage of the proceeding, the trial court should have denied defendant’s motion for summary judgment. Accordingly, I respectfully dissent.

Note 1. “Discretion” is defined in Garrison to include: “both the determination of facts and simple cause-and-effect relationships and also the assessment of costs and benefits, the evaluation of relative effectiveness and risks, and a choice among competing goals and priorities.”

When cast in this way, the discretion would seem to consist of a huge range of government actions. Is the discretionary function exception more properly understood as a default to immunity, with only truly ministerial (non-discretionary) tasks subject to the possibility of tort liability?

Note 2. In finding the discretionary exception applied, the majority reasoned: “[T]he decision whether to protect the public by taking preventive measures, or by warning of a danger, if legally required, is not discretionary; however, the government’s choice of means for fulfilling that requirement may be discretionary.” [cc] In some respects, this distinction parallels the dividing line between duty and breach; duty expresses a legal obligation and breach specifies what conduct the duty requires on a given set of facts. Does that dividing line seem to you to apply here?

Note 3. What are the dissent and the majority opinions arguing over? How is it that they cite some of the same cases for seemingly different purposes? Whose opinion is more persuasive to you?

4. Limits on Governmental Liability: The Public Duty Doctrine

Sovereign immunity has been waived by the federal, state, tribal and local governments with respect to many different functions, such as permitting recovery against negligently driving mail carriers, as you learned above. However, the scope of the duty owed by governments outside the clearly waived immunity has not always been clear. To be sure, governmental immunity was partially to be waived but partially to be retained, but the question was, waived as to what? The flip side of this question was one of duty: to whom, and for what, did the government still owe a duty once it had waived its blanket immunity? Recall that at common law there was no duty “to rescue,” or to engage in certain affirmative steps unless particular relationships or contracts or categories imposed a duty. A doctrine known as “the public duty doctrine” arose to define and delimit a sphere of obligation to the public.

The next case features an abusive relationship, and violent actions by a rejected ex-boyfriend whose threats the police did not take seriously enough to act on before they resulted in serious physical injury. The court does not find liability and both the majority and dissenting opinions are notable for their deep discussions of policy with respect to the interconnections between duty and immunity.

Riss v. City of New York, New York Court of Appeals (1968)
(22 N.Y.2d 579)

[Editor’s Note: The description of the facts in this case is taken from the dissenting opinion of Judge Keating (which the majority opinion points to, in omitting its own discussion of the facts).]

Linda Riss, an attractive young woman, was for more than six months terrorized by a rejected suitor well known to the courts of this State, one Burton Pugach. This miscreant, masquerading as a respectable attorney, repeatedly threatened to have Linda killed or maimed if she did not yield to him: ‘If I can’t have you, no one else will have you, and when I get through with you, no one else will want you.’ In fear for her life, she went to those charged by law with the duty of preserving and safeguarding the lives of the citizens and residents of this State. Linda’s repeated and almost pathetic pleas for aid were received with little more than indifference. Whatever help she was given was not commensurate with the identifiable danger. On June 14, 1959 Linda became engaged to another man. At a party held to celebrate the event, she received a phone call warning her that it was her ‘last chance.’ Completely distraught, she called the police, begging for help, but was refused. The next day Pugach carried out his dire threats in the very manner he had foretold by having a hired thug throw lye in Linda’s face. Linda was blinded in one eye, lost a good portion of her vision in the other, and her face was permanently scarred. After the assault the authorities concluded that there was some basis for Linda’s fears, and for the next three and one-half years, she was given around-the-clock protection.”

This appeal presents, in a very sympathetic framework, the issue of the liability of a municipality for failure to provide special protection to a member of the public who was repeatedly threatened with personal harm and eventually suffered dire personal injuries for lack of such protection. … The issue arises upon the affirmance by a divided Appellate Division of a dismissal of the complaint, after both sides had rested but before submission to the jury. It is necessary immediately to distinguish those liabilities attendant upon governmental activities which have displaced or supplemented traditionally private enterprises, such as are involved in the operation of rapid transit systems, hospitals, and places of public assembly. Once sovereign immunity was abolished by statute the extension of liability on ordinary principles of tort law logically followed. To be equally distinguished are certain activities of government which provide services and facilities for the use of the public, such as highways, public buildings and the like, in the performance of which the municipality or the State may be liable under ordinary principles of tort law. The ground for liability is the provision of the services or facilities for the direct use by members of the public.

In contrast, this case involves the provision of a governmental service to protect the public generally from external hazards and particularly to control the activities of criminal wrongdoers. [cc] The amount of protection that may be provided is limited by the resources of the community and by a considered legislative-executive decision as to *582 how those resources may be deployed. For the courts to proclaim a new and general duty of protection in the law of tort, even to those who may be the particular seekers of protection based on specific hazards, could and would inevitably determine how the limited police resources of the community should be allocated and without predictable limits. This is quite different from the predictable allocation of resources and liabilities when public hospitals, rapid transit systems, or even highways are provided. Before such extension of responsibilities should be dictated by the indirect imposition of tort liabilities, there should be a legislative determination that that should be the scope of public responsibility. It is notable that the removal of sovereign immunity for tort liability was accomplished after legislative enactment and not by any judicial arrogation of power (Court of Claims Act, §8). [***]

When one considers the greatly increased amount of crime committed throughout the cities, but especially in certain portions of them, with a repetitive and predictable pattern, it is easy to see the consequences of fixing municipal liability upon a showing of probable need for and request for protection. To be sure these are grave problems at the present time, exciting high priority activity on the part of the national, State and local governments, to which the answers are neither simple, known, or presently within reasonable controls. To foist a presumed cure for these problems by judicial innovation of a new kind of liability in tort would be foolhardy indeed and an assumption of judicial wisdom and power not possessed by the courts. *583 [***] For all of these reasons, there is no warrant in judicial tradition or in the proper allocation of the powers of government for the courts, in the absence of legislation, to carve out an area of tort liability for police protection to members of the public. Quite distinguishable, of course, is the situation where the police authorities undertake responsibilities to particular members of the public and expose them, without adequate protection, to the risks which then materialize into actual losses [c].

Accordingly, the order of the Appellate Division affirming the judgment of dismissal should be affirmed.

KEATING, JUDGE (dissenting)

Certainly, the record in this case, sound legal analysis, relevant policy considerations and even precedent cannot account for or sustain the result which the majority have here reached. For the result is premised upon a legal rule which long ago should have been abandoned, having lost any justification it might once have had. Despite almost universal condemnation by legal scholars, the rule survives, finding its continuing strength, not in its power to persuade, but in its ability to arouse unwarranted judicial fears of the consequences of overturning it.

No one questions the proposition that the first duty of government is to assure its citizens the opportunity to live in personal security. And no one who reads the record of Linda’s ordeal can reach a conclusion other than that the City of New York, acting through its agents, completely and negligently failed to fulfill this obligation to Linda.

Linda has turned to the courts of this State for redress, asking that the city be held liable in damages for its negligent failure to protect her from harm. With compelling logic, she can point out that, if a stranger, who had absolutely no obligation to aid her, had offered her assistance, and thereafter Burton Pugach was able to injure her as a result of the negligence of the volunteer, the courts would certainly require him to pay damages. (Restatement, 2d, Torts, § 323.) Why then should the city, whose duties are imposed by law and include the prevention of crime (New York City Charter, § 435) and, consequently, extend far beyond that of the Good Samaritan, not be responsible? If a private detective acts carelessly, no one would deny that a jury could find such conduct unacceptable. Why then is the city not required to live up to at least the same minimal standards of professional competence which would be demanded of a private detective?

Linda’s reasoning seems so eminently sensible that surely it must come as a shock to her and to every citizen to hear the city argue and to learn that this court decides that the city has no duty to provide police protection to any given individual. What makes the city’s position particularly difficult to understand is that, in conformity to the dictates of the law, Linda did not carry any weapon for self-defense (former Penal Law, §1897). Thus, by a rather bitter irony she was required to rely for protection *585 on the City of New York which now denies all responsibility to her.

It is not a distortion to summarize the essence of the city’s case here in the following language: “Because we owe a duty to everybody, we owe it to nobody.” [***] To say that there is no duty is, of course, to start with the conclusion. The question is whether or not there should be liability for the negligent failure to provide adequate police protection. The foremost justification repeatedly urged for the existing rule is the claim that the State and the municipalities will be exposed to limitless liability. The city invokes the specter of a “crushing burden” (Steitz v. City of Beacon, 295 N. Y. 51, 55) if we should depart from the existing rule and enunciate even the limited proposition that the State and its municipalities can be held liable for the negligent acts of their police employees in executing whatever police services they do in fact provide (cf. dissenting opn. per Desmond, J., in Steitz v. City of Beacon, citation omitted).

The fear of financial disaster is a myth. The same argument was made a generation ago in opposition to proposals that the State waive its defense of “sovereign immunity”. The prophecy proved false then and it would now. The supposed astronomical financial burden does not and would not exist. No municipality has gone bankrupt because it has had to respond in damages when a policeman causes injury through carelessly driving a police car or in the thousands of other situations where, by judicial fiat or legislative enactment, the State and its subdivisions have been held liable for the tortious conduct of their employees. Thus, in the past four or five years, New York City has been presented with an average of some 10,000 claims each year. The figure would sound ominous except for the fact the city has been paying out less than $8,000,000 on tort claims each year and this amount includes all those sidewalk defect and snow and ice cases about which the courts fret so often. [c] Court delay has reduced the figure paid *586 somewhat, but not substantially. Certainly this is a slight burden in a budget of more than six billion dollars (less than two tenths of 1%) and of no importance as compared to the injustice of permitting unredressed wrongs to continue to go unrepaired. That Linda Riss should be asked to bear the loss, which should properly fall on the city if we assume, as we must, in the present posture of the case, that her injuries resulted from the city’s failure to provide sufficient police to protect Linda is contrary to the most elementary notions of justice.

The statement in the majority opinion that there are no predictable limits to the potential liability for failure to provide adequate police protection as compared to other areas of municipal liability is, of course, untenable. When immunity in other areas of governmental activity was removed, the same lack of predictable limits existed. Yet, disaster did not ensue.

Another variation of the “crushing burden” argument is the contention that, every time a crime is committed, the city will be sued and the claim will be made that it resulted from inadequate police protection. Here, again, is an attempt to arouse the “anxiety of the courts about new theories of liability which may have a far-reaching effect” [c]. And here too the underlying assumption of the argument is fallacious because it assumes that a strict liability standard is to be imposed and that the courts would prove completely unable to apply general principles of tort liability in a reasonable fashion in the context of actions arising from the negligent acts of police and fire personnel. The argument is also made as if there were no such legal principles as fault, proximate cause or foreseeability, all of which operate to keep liability within reasonable bounds.

No one is contending that the police must be at the scene of every potential crime or must provide a personal bodyguard to every person who walks into a police station and claims to have been threatened. They need only act as a reasonable man would under the circumstances. At first there would be a duty to inquire. If the inquiry indicates nothing to substantiate the alleged threat, the matter may be put aside and other matters attended to. If, however, the claims prove to have some basis, appropriate steps would be necessary. *587

The instant case provides an excellent illustration of the limits which the courts can draw. No one would claim that, under the facts here, the police were negligent when they did not give Linda protection after her first calls or visits to the police station in February of 1959. The preliminary investigation was sufficient. If Linda had been attacked at this point, clearly there would be no liability here. When, however, as time went on and it was established that Linda was a reputable person, that other verifiable attempts to injure her or intimidate her had taken place, that other witnesses were available to support her claim that her life was being threatened, something more was required—either by way of further investigation or protection— than the statement that was made by one detective to Linda that she would have to be hurt before the police could do anything for her. [***]

More significant, however, is the fundamental flaw in the reasoning behind the argument alleging judicial interference. It is a complete oversimplification of the problem of municipal tort liability. What it ignores is the fact that indirectly courts are reviewing administrative practices in almost every tort case against the State or a municipality, including even decisions of the Police Commissioner.

The truth of the matter, however, is that the courts are not making policy decisions for public officials. In all these municipal negligence cases, the courts are doing two things. First, they apply the principles of vicarious liability to the operations of government. Courts would not insulate the city from liability for the ordinary negligence of members of the highway department. There is no basis for treating the members of the police department differently. Second, and most important, to the extent that the injury results from the failure to allocate sufficient funds and resources to meet a minimum standard of public administration, public officials are presented with two alternatives: either improve public administration or accept the cost of compensating injured persons. Thus, if we were to hold the city liable here for the negligence of the police, courts would no more be interfering with the operations of the police department than they “meddle” in the affairs of the highway department when they hold the municipality liable for personal injuries resulting from defective sidewalks, or a private employer for the negligence of his employees. In other words, all the courts do in these municipal negligence cases is require officials to weigh the consequences of their decisions. If Linda Riss’ injury resulted from the failure of the city to pay sufficient salaries to attract qualified and sufficient personnel, the full cost of that choice should become acknowledged in the same way as it has in other areas of municipal tort liability. Perhaps officials will find it less costly to choose the alternative of paying damages than changing their existing practices. That may be well and good, but the price for the refusal to provide for an adequate police force should not be borne by Linda Riss and all the other innocent victims of such decisions.

What has existed until now is that the City of New York and other municipalities have been able to engage in a sort of false *590 bookkeeping in which the real costs of inadequate or incompetent police protection have been hidden by charging the expenditures to the individuals who have sustained often catastrophic losses rather than to the community where it belongs, because the latter had the power to prevent the losses.

Although in modern times the compensatory nature of tort law has generally been the one most emphasized, one of its most important functions has been and is its normative aspect. It sets forth standards of conduct which ought to be followed. The penalty for failing to do so is to pay pecuniary damages. At one time the government was completely immunized from this salutary control. This is much less so now, and the imposition of liability has had healthy side effects. In many areas, it has resulted in the adoption of better and more considered procedures just as workmen’s compensation resulted in improved industrial safety practices. To visit liability upon the city here will no doubt have similar constructive effects. No “presumed cure” for the problem of crime is being “foisted” upon the city as the majority opinion charges. The methods of dealing with the problem of crime are left completely to the city’s discretion. All that the courts can do is make sure that the costs of the city’s and its employees’ mistakes are placed where they properly belong. Thus, every reason used to sustain the rule that there is no duty to offer police protection to any individual turns out on close analysis to be of little substance.

The rule is judge made and can be judicially modified. By statute, the judicially created doctrine of “sovereign immunity” was destroyed. It was an unrighteous doctrine, carrying as it did the connotation that the government is above the law. Likewise, the law should be purged of all new evasions, which seek to avoid the full implications of the repeal of sovereign immunity. No doubt in the future we shall have to draw limitations just as we have done in the area of private litigation, and no doubt some of these limitations will be unique to municipal liability *593 because the problems will not have any counterpart in private tort law. But if the lines are to be drawn, let them be delineated on candid considerations of policy and fairness and not on the fictions or relics of the doctrine of “sovereign immunity”. Before reaching such questions, however, we must resolve the fundamental issue raised here and recognize that, having undertaken to provide professional police and fire protection, municipalities cannot escape liability for damages caused by their failure to do even a minimally adequate job of it.

The Appellate Division did not adopt the “no duty” theory, but said there was no negligence here because the danger was not imminent. Despite the fact that the majority of the Appellate Division “agree[d] that certain rulings, and particularly the manner in which they were made, did not add to the appearance of a fair trial”, and which, in fact, resulted in a wholly inadequate hearing, the majority found that the “facts brought out on this trial do not show the presence of such imminent danger that extraordinary police activity was so indicated that the failure to take it can be deemed unreasonable conduct.” This finding does not stand examination and to its credit the city does not argue that this record would not support a finding of negligence. The danger to Linda was indeed imminent, and this fact could easily have been confirmed had there been competent police work.

Moreover, since this is an appeal from a dismissal of the complaint, we must give the plaintiff the benefit of every favorable inference. The Appellate Division’s conclusion could only have been reached by ignoring the thrust of the plaintiff’s claim and the evidence in the record. A few examples of the actions of the police should suffice to show the true state of the record.

Linda Riss received a telephone call from a person who warned Linda that Pugach was arranging to have her beaten up. A detective learned the identity of the caller. He offered to arrest the caller, but plaintiff rejected that suggestion for the obvious reason that the informant was trying to help Linda. When Linda requested that Pugach be arrested, the detective said he could not do that because she had not yet been hurt. The statement was not so. It was and is a crime to conspire to injure someone. True there was no basis to arrest Pugach then, but that was only because the necessary leg work had not been done. No one *594 went to speak to the informant, who might have furnished additional leads. Linda claimed to be receiving telephone calls almost every day. These calls could have been monitored for a few days to obtain evidence against Pugach. Any number of reasonable alternatives presented themselves. A case against Pugach could have been developed which would have at least put him away for awhile or altered the situation entirely. But, if necessary, some police protection should have been afforded.

Perhaps, on a fuller record after a true trial on the merits, the city’s position will not appear so damaging as it does now. But with actual notice of danger and ample opportunity to confirm and take reasonable remedial steps, a jury could find that the persons involved acted unreasonably and negligently. Linda Riss is entitled to have a jury determine the issue of the city’s liability. This right should not be terminated by the adoption of a question-begging conclusion that there is no duty owed to her. The order of the Appellate Division should be reversed and a new trial granted.

Note 1. What does the court mean when it writes: “Quite distinguishable, of course, is the situation where the police authorities undertake responsibilities to particular members of the public and expose them, without adequate protection, to the risks which then materialize into actual losses”? Did Riss not suffer actual losses? What sorts of actions would constitute, in your view, an “undertaking” of “responsibilities to particular members of the public”?

Note 2. The dissent states that “No one is contending that the police must be at the scene of every potential crime or must provide a personal bodyguard to every person who walks into a police station and claims to have been threatened” (although after Riss, in fact, the NYPD did assign a full-time bodyguard to her). Instead, the dissent writes that the police “need only act as a reasonable man would under the circumstances. At first there would be a duty to inquire. If the inquiry indicates nothing to substantiate the alleged threat, the matter may be put aside and other matters attended to. If, however, the claims prove to have some basis, appropriate steps would be necessary.” What are the costs and benefits of applying a reasonableness standard to police protection? What are the implications of doing so, in terms of allocating decision authority between judge and jury, or in terms of the institutional competence of courts versus legislators? What do you think is the right answer, normatively, here?

Note 3. The facts of Riss are upsetting, whatever one feels about the normative propositions expressed in the two differing opinions. Pugach’s violent assault and partially blinding Riss seems like a culmination of threats he had made, and they were part of a pattern of anger and retribution on behalf of a jilted lover. The facts point to deeper societal problems of sexism, controlling relationships and domestic violence, as well as to the law’s sometimes-peripheral role in addressing these. The opinion does not address the psychological issues inherent in dynamics of harassment and control, such as those that are often involved in abusive relationships. In this case, the facts are a tragic testament to how deeply the psychological issues can run. This obituary from Riss’s 2013 passing tells part of the story of her life with Pugach, whom she married after he was released from jail, and it opens with the following summary:

She was 22, a sheltered, dark-haired Bronx beauty said to look like Elizabeth Taylor. He was a decade older, a suave lawyer who courted her with flowers, rides in his powder-blue Cadillac and trips to glittering Manhattan nightclubs. He was married, though not to her. Before long, tiring of his unfulfilled promises to divorce his wife, she ended their affair. He hired three men, who threw lye in her face, blinding her, and went to prison for more than a decade. Afterward, she married him.


This excerpt’s conclusion hints at the unusual nature of Riss’s 38-year marriage to Pugach but it was even more sensational and difficult for outsiders to understand. Their relationship, including many aspects of its abuse, was documented in a book and a documentary, Crazy Love, released in 2007. According to the New York Times, the documentary is “[p]art cautionary tale, part psychological study, part riveting disaster narrative.” It is difficult to watch but recommended for those interested in the dynamics of abusive relationships. It also implicates the New York Police Department once again but in a more surprising way. A female bodyguard was assigned to guard Riss after Pugach blinded her, and Riss and her guard became friends. When Pugach, from prison, decided to woo Riss again, he appealed to the bodyguard and she ultimately intervened to help Pugach court Riss (apparently quite in contravention of her employment mandate to protect Riss from him at all costs). After the couple reunited, however, Pugach eventually resumed his womanizing. The obituary describes a trial in 1997 during which Pugach was tried for charges of abuse and attempted murder of a different woman while married to Linda Riss (now “Mrs. Pugach”): “At the trial, at which Mr. Pugach represented himself, Mrs. Pugach testified on his behalf, telling him in open court, ‘You’re a wonderful, caring husband.’ The alleged victim in the case was Mr. Pugach’s mistress of five years.”

Does knowing about the abusive dynamic between Riss and Pugach lend support for one or the other of the opinions in Riss? Tort law has tended to keep its distance from domestic violence, historically treating spouses and domestic partners as presumptively immune from tort liability for harms they cause each other, partly out of longstanding concerns that courts are not the right entity to “interfere” with familial relations and could make problems worse. Scholarship has also long shown that the reluctance to use tort law to help victims of domestic violence reflects latent misogyny in the legal system. In your view, is this an area in which policy concerns ought to militate in favor of more or less regulation through tort law? What are the countervailing factors in your consideration?

Note 4. How far should discretion for police decisionmaking extend with respect to their assessments of threat and their allocation of resources to respond to given threats? How realistic or reasonable is it to anticipate that they will make these predictions accurately? How accurately does tort law, or should tort law, expect the police to make such predictions? The dissent talks about a strict liability standard; is this the likely outcome of holding the police liable when they make the wrong call?

Check Your Understanding (4-6)

Question 1. When the dissent in Riss v. NYC summarizes the majority’s rule as saying, “Because we owe a duty to everybody, we owe it to nobody,” he is making reference to which of the following:

  1. Real-time transcription, also known as videotext display or close captioning, is a computer-aided transcription device that converts typing from the court reporter’s stenographic machine into English language text displayed on a computer screen.
  2. Editor’s note: Seattle is in King County, to the East of Kitsap County (which covers Bremerton, Bainbridge Island and Poulsbo). For context, according to the 2010 census numbers, King County’s population was 1.938 million; Kitsap County’s was 251,133.
  3. In his complaint, Duvall requested a declaration “that defendants have unlawfully discriminated against Plaintiff by refusing to provide real time captioning for his dissolution of marriage proceedings.” Because Duvall ultimately received real time transcription and the county now provides that service for hearing-impaired individuals, his claims for declaratory relief are now moot. [c]. His suit for damages, however, is not. [c] We therefore discuss only the claims for damages.
  4. Although neither the Rehabilitation Act nor Title II of the ADA, on its face, requires the provision of sign-language interpreters as an accommodation for hearing-impaired individuals, the regulations promulgated by the Attorney General under Title II list sign-language interpreters and videotext display as among the accommodations required, in appropriate circumstances, by the ADA. 28 C.F.R § 35.104(1).
  5. See also Moore v. Brewster, 96 F.3d 1240, 1244 (9th Cir. 1996) (according immunity to clerk of the United States District Court for the Southern District of California given nature of the responsibilities); Sharma v. Stevas, 790 F.2d 1486 (9th Cir. 1986) (clerk of United States Supreme Court has quasi-judicial immunity); Morrison v. Jones, 607 F.2d 1269, 1273 (9th Cir. 1979) (court clerk’s “failure ... to perform a ministerial duty [giving notice of order] which was a part of judicial process is also clothed with quasi-judicial immunity”); Shipp v. Todd, 568 F.2d 133, 134 (9th Cir. 1978) (recognizing quasi-judicial immunity for clerk of Montana state court from damages but not injunctive relief); Harmon v. Superior Court, 329 F.2d 154, 155 (9th Cir. 1964) (recognizing absolute immunity for county clerk and other judicial personnel).
  6. “Administrative functions are actions which are significant independent of the fact that the actor is a judge, such as the hiring or firing of staff members.” Partington v. Gedan, 961 F.2d 852, 866 (9th Cir. 1992) [c]).
  7. (For further discussion, see e.g. https://www.psychologytoday.com/us/blog/talking-apes/201802/is-deafness-really-disability and Erica R. Harvey, Deafness: A Disability or a Difference (2013), 2 Health Law & Policy 42 (2008), available at: https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1073&context=hlp)
  8. This rationale began to be questioned after the widespread enactment of statutes known as Married Women’s Acts, beginning in the mid-nineteenth century, which gave wives many of the rights that their husbands had always enjoyed. Some courts thus found it necessary to develop new theories to support the concept of interspousal immunity. The idea that most often found favor was that “personal tort actions between husband and wife would disrupt and destroy the peace and harmony of the home....” Restatement, supra, § 895F, comment d. Other courts, including this one, simply held that “[t]he common law rule forbid[ding] a wife to sue her husband for any tort committed against her ... [was] unaffected by the Married Women’s Act.” Mountjoy v. Mountjoy, 206 A.2d 733, 733 (D.C.) (citations omitted), appeal denied, 121 U.S.App.D.C. 27, 347 F.2d 811 (1965). The common law doctrine of interspousal immunity was abolished in the District of Columbia by statute in 1976. D.C.Code § 30–201 (1981) now provides in pertinent part:
    The fact that a person is or was married shall not, after October 1, 1976, impair the rights and responsibilities of such person, which are hereby granted or confirmed, to ... engage ... in any civil litigation of any sort (whether in contract, tort, or otherwise) with or against anyone, including such person's spouse, to the same extent as an unmarried person.... [Emphasis added.]
    Given this enactment, it would be anomalous indeed for this court to adopt parent-child immunity as the law of the District of Columbia when the most frequently cited rationale for that doctrine—the need to preserve domestic tranquility and family unity—has been rejected by our own legislature in abolishing interspousal immunity.
  9. See, e.g., Dzenutis v. Dzenutis, 200 Conn. 290, 512 A.2d 130 (1986) (no immunity when child’s injury arose out of a business activity conducted by the parent away from the home); Hale v. Hale, 312 Ky. 867, 230 S.W.2d 610 (1950) (no immunity when death of either parent or child terminates the parental relationship); Dunlap v. Dunlap, 84 N.H. 352, 150 A. 905 (1930) (no immunity for intentional or reckless infliction of bodily harm).
  10. We think it significant that such a possibility of conspiracy between husband and wife did not dissuade the Council of the District of Columbia from abolishing interspousal immunity more than ten years ago. See note 1 [8], supra.
  11. We emphasize that we are accepting section 895G in its entirety. We are aware that subsection (2) recognizes, or at least assumes, that certain acts or omissions may be privileged or non-tortious by reason of the parent-child relationship. We need not attempt in this case to identify the types of conduct that may be privileged or non-tortious under subsection (2); that will have to be done in the future on a case-by-case basis. As the Restatement tells us, “[t]hese problems are comparatively new to the courts as a result of the recent abrogation of immunity, and the courts have not yet worked out a full analysis of the proper legal treatment.” RESTATEMENT, supra, § 895G, comment k. We defer that “full analysis” until we are faced with a case that requires it.
  12. “Because a child has only limited knowledge and ability in legal matters, the decision to sue is usually made by his parents.” Hollister, supra, 50 FORDHAM L. REV. at 500. See Streenz v. Streenz, 106 Ariz. 86, 88, 471 P.2d 282, 284 (1970) (“Where [automobile liability] insurance exists ... in reality the sought after litigation is not between child and parent but between child and parent's insurance carrier.”); Sorensen v. Sorensen, 369 Mass. 350, 362, 339 N.E.2d 907, 914 (1975) (“When insurance is involved, the action between parent and child is not truly adversary....”).
  13. We refer to Derrick by his first name for clarity.
  14. RCW 4.22.015 defines “fault” as “acts or omissions, including misuse of a product, that are in any measure negligent or reckless toward the person or property of the actor or others, or that subject a person to strict tort liability or liability on a product liability claim. The term also includes breach of warranty, unreasonable assumption of risk, and unreasonable failure to avoid an injury or to mitigate damages. Legal requirements of causal relation apply both to fault as the basis for liability and to contributory fault. “A comparison of fault for any purpose under RCW 4.22.005 through 4.22.060 shall involve consideration of both the nature of the conduct of the parties to the action and the extent of the causal relation between such conduct and the damages.”
  15. The evidence showed that Donna Jean Loman was attacked by this alligator in 1981. After the attack, this particular alligator was captured and released five miles from Open Pond in Yellow River. In 1983, another swimmer claimed that he was bitten on the arm by an alligator. Mr. John Maurer, Forest Technician at the Conecuh National Forest in 1983, investigated his allegations and concluded that he had not been attacked by an alligator but, rather, had been stabbed in the arm with a barbecue fork by his wife during a domestic dispute. Notwithstanding Mr. Maurer’s conclusions as to that incident, the clubfooted alligator was again trapped and removed to South Carolina.
  16. Plaintiffs are Gary Garrison, who seeks damages for his own injuries, and Heather Garrison, his wife, who seeks damages for loss of consortium.
  17. In his concurring opinion in Miller v. Grants Pass Irr. Dist., 297 Or. 312, 323-24, 686 P.2d 324 (1984), Justice Lent opined that the notion of a “discretionary duty,” which the text of ORS 30.265(3)(c) embraces, is a contradiction in terms that detracts from a principled statutory analysis. He did, however, offer the following explanation, with which I agree, regarding the concepts of discretion and legal duty in the application of ORS 30.265(3)(c): “I do have trouble envisioning a discretionary duty. ORS 30.265(1), speaking generally, makes the state or a local public body liable for its torts. In order for there to be a tort the actor must breach some duty imposed by law, that is, by legislative enactment (statute, rule, regulation, charter, ordinance, etc.) or the common law. The duty must be identified and proclaimed to exist by a court, as a matter of law, not fact. A duty either exists or it does not. The law either commands someone to act, or refrain from acting, or it does not. In this case, the Irrigation District chose to build and operate a dam. Having done so, it should be held to the same duty as would any person, natural or corporate, have in the operation of a dam and the impoundment of water, to protect those on the water from an unreasonable risk of harm arising from the District's activities in this respect. If legislation or the common law imposes a duty on a dam operator in these circumstances, there is nothing ‘discretionary’ about the existence of the duty, nor can it be described by that adjective. There may be, and probably is, room for discretion in choosing the manner of performance, both for a private person or a public agency, but the duty must be performed and the standard of care required by the duty must be achieve. To sum up, a discretionary function is one concerning which the governmental agency involved has power to make a choice among valid alternatives, but if there is a duty imposed by law there is no choice but to obey. If there is no duty, to which adherence is required, then the agency is concerned with a function rather than a duty. I really don’t know what a discretionary duty looks like.”

Share This Book