Sovereign Immunity –
Discretionary Functions
Two-Part Test (Whisnant): Immunity if
challenged action was -1) Discretionary
2)
Susceptible to social, economic or political
policy analysis
Sovereign Immunity –
Discretionary Functions
Two-Part Test (Whisnant): Immunity if
challenged action was -1) Discretionary
– vs. mandated by statute, policy, or regulation
2)
Susceptible to social, economic or political
policy analysis
– design vs. implementation
– policy trade-offs vs. professional or scientific
judgment
Parole Board Hypo
The Parole Board at a federal prison
paroles Prisoner, who was serving time
following his conviction for a sex crime.
Shortly after his parole Prisoner rapes
Plaintiff. Plaintiff sues the Parole Board,
arguing that they were negligent in their
decision to parole Prisoner. Can the Parole
Board invoke sovereign immunity?
Flooding Hypo
The Army Corp of Engineers is responsible for
preventing the spread of flooding. It determines that
the breakwater in Farm Town requires a small repair.
However, the Army Corp of Engineers decides to delay
making the repair, as it wishes to study whether the
breakwater requires other, larger improvements.
While studying the issue, a flood causes damages to
nearby land. The spread of the flooding could have
been avoided had the Army Corp of Engineers made
the repair to the breakwater. The property owners of
the flooded land sue the Army Corp of Engineers,
arguing that they were negligent in failing to make the
repair. Can the Army Corp of Engineers successfully
assert sovereign immunity?
Public Duty Doctrine
• Scenario: Government fails to act
• Rule: No duty owed P if general duty to
protect the public
• Not Applicable if:
– Duty owed to particular group of which P is a
member
– Affirmatively undertake duty + reliance (see
chapter 17)
Other Modifications to Duty of Care
• Immunity for charities
• Spousal immunity
• Parent-child immunity