ABSOLUTE LIABILITY / STRICT LIABILITY PPC and Tort paper 5 and 6 for LLB part I Punjab Universty

-H-Honour; Reputation : Ehre

The moral right of a person to be held in good esteem by the community until their comportment prooves that they are in fact otherwise.

Hospital Liability | Krankenhausträgerhaftung

Hospitals may be immune from torts either as charities, when run by the private sector, under the principle of charitable immunity or, when run by the state, under a theory of governmental immunity. This immunity however would not exculpate the negligence of the hospital’s employees.

-I-Immunity:

See governmental Immunity

Independent Contractor

See: employee vs. independent contractor

Informed Consent

See: consent, informed

Insurance | Versicherung

Industrialisation led to serious work-place accidents. Consequently to avoid the worst injustices governments enacted mandatory insurance systems to cover workers against such accidents. The tort system also plays an insurance role, but is generally not as efficient due to the costs of attorneys as an insurance system.

First party | Schadensversicherung

Insurance by a person of their person or property. Such insurance could arguably be considered as deductible from whatever damages award that the insured receives in the event of being victim of a tort-feasor. In cases of obligatory insurance a good argument can be made that reducing the damages award by the insurance is just, particularly in cases of no-fault liability such as auto accidents. However in cases of voluntary assurance the collateral source rule would be perverse: it would undermine the deterrence function of tort law by permitting plaintiffs to escape unsanctioned or under-sanctioned and punish prudent plaintiffs who seek insurance.

Third party | Haftpflichtversicherung

(Obligatory) Insurance of persons against accidents that they cause. Such insurance where mandatory is clearly legal. What of cases where the insurance is not mandatory? There the risk is percieved that permitting insurance coverage may lead to irresponability. However that rationale is not strong: the costs of litigation, both in terms of money and time, as well as the threat of punitive damages and higher premiums indicate that the deterrence function of tort law is probably not undermined by permitting insurance to cover tortious losses.

Social | Sozialversicherung

As explained above, social insurance is a mandatory insurance coverage which is intended to spread losses for injury through society. Social insurance serves the goal not of deterrence or punishment or even prevention but rather the goal of compensation.

Immunity

Exemption from legal duties. In so far as torts are concerned, immunities may be classified according to their extent, being absolute or qualified, or their object, being governments or persons.

Governmental Immunity

A principle precluding the institution of a suit against the government without its consent.

Governmental immunity exempts the government from liability for its torts. It is referred to as either governmental immunity or as soveriegn immunity. The terms are synonymous.

The principle of the common law is that “the king can do no wrong” – that is that there be no remedy against the sovereign because of sovereign immunity unless the sovereign waive that immunity.

This principle continues to exist in America however the government consents to be sued according to the federal tort claims act. According to Holmes, the "sovereign is exempt from suit [on the] practical ground that there canbe no legal right against the authority that makes the law on which the right depends." 205 U.S. 349, 353.

"[S]tatutes waiving the sovereign immunity of the United States must be`construed strictly in favor of the sovereign." McMahon v.United States, 342 U.S. 25, 27 (1951).

The government can waive its immunity.

Local municipalities often enjoy “regulatory immunity” for those tasks which arise out of any of the municipality's regulatory  decisions involving cable television. See, e.g.

Caprotti v. Town of Woodstock,   1999 N.Y. LEXIS 3729, *; 94 N.Y.2d 73; 721 N.E.2d 957; 699 N.Y.S.2d 707

Types of  Personal Immunity

Personal immunities protect government official from personal liabilities for torts committed in the scope of their office. Personal immunities are either qualified or absolute. For a good summary see

Lauer v. City of New York, 2000 N.Y. LEXIS 907, *; 95 N.Y.2d 95; 733 N.E.2d 184; 711 N.Y.S.2d 112

Qualified Immunity

Qualified immunity protects government officials from personal liability for the torts they commit in the service of the government. It protects them “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

"Therefore, regardless of whether the constitutional violation occurred, the officer should prevail if the right asserted by theplaintiff was not `clearly established' or the officer could have reasonably believed that his particular conduct was lawful." Romero v. KitsapCounty, 931 F.2d 624, 627 (9th Cir. 1991) (emphasis added). Furthermore, "[t]he entitlement is an immunity from suit rather than a mere defense to liability; .. . it is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

The qualified immunity test requires a two-part analysis: "(1) Was the law governing the official's conduct clearly established? (2) Underthat law, could a reasonable officer have believed the conduct was lawful?" Act-Up!, 988 F.2d at 871; see also Tribble v. Gardner, 860 F.2d321, 324 (9th Cir. 1988), cert. denied, 490 U.S. 1075 (1989).

Even where there has been a constitutional violation immunity will protect the government officer if he or she "could have reasonably believed that hisparticular conduct was lawful." Romero, 931 F.2d at 627.

"[A] district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision'within the meaning of 28 U.S.C. section 1291 notwithstanding the absence of a final judgment." Mitchell v. Forsyth, 472 U.S. 511, 530(1985).

Qualified immunity only applies to the acts of the government official undertaken in the scope of their office.

Absolute Immunity

Absolute immunity is unconditional immunity from all personal civil liability, e.g. diplomatic immunity.

Charitable Immunity

Immunity from civil liability and particularly as regards negligent torts that is granted to a charitable or nonprofit organization such as a hospital.

Corporate Immunity

Immunity from liability in tort granted to an officer of a corporation who acted in good faith within the scope of their duties.

Discretionary Immunity

Qualified immunity from civil liability for tortious acts or omissions that arise from a government employee's discretionary acts performed as part of their duties

Executive Immunity

Immunity granted to officers of the executive branch of government from personal liability for tortious acts or omissions done pursuant to their duties. The US president's executive immunity is absolute, the immunity of other federal executive officials is qualified.

Judicial Immunity

Absolute immunity from liability that is granted to judges and court officers such as grand juries and prosecutors and for tortious acts or omissions done within the scope of their jurisdiction orauthority.

Legislative Immunity

Absolute immunity from liability that is granted to legislators for tortious acts or omissions done in the course of legislative activities.

Official Immunity

Discretionary immunity from personal liability that is granted to public officers for tortious acts and omissions

Ministerial / Discretionary distinction

The law in this field is intricate and frankly byzantine.

Where municipalities have waived their common-law tort immunity for the negligence of their employees, a distinction is drawn, between "discretionary" and "ministerial" governmental acts. A public employee's discretionary acts--meaning conduct involving the exercise of reasoned judgment--may not  result in the municipality's liability even when the conduct is negligent. By contrast,  ministerial acts--meaning conduct requiring adherence to a governing rule, with a compulsory  result--may subject the municipal employer to liability for negligence (see, Tango v Tulevech, 61 NY2d 34, 40-41). No one disputes that the Medical Examiner's misconduct here in  failing to correct the record and deliver it to the authorities was ministerial.

Lauer v. City of New York, 2000 N.Y. LEXIS 907, *; 95 N.Y.2d 95; 733 N.E.2d 184; 711 N.Y.S.2d 112

Imputation | Zurechnung

The determination of a legal duty or right to a person. The imputation may occur through implication or through legal fiction, i.e. a constructive duty or right.

Imputed Negligence

Negligence where the fault of one person is transferred to another. For example, the negligence of a child may be imputed to a parent or that of a worker to his or her employer.

Schmidt v. Martin 212 Kan. 373, 510 P.2d 1244, 1246.

See also: respondeat superior, master and servant, children.

Indemnity | Entschädigung

Compensation given (often from an insurance fund) to make whole the injury already sustained. May refer either to compensation via private insurance, social insurance or indemnisation of the victim of a tort by the tortfeasor through whatever resources the tortfeasor has.

Independent Contractor | selbständiger Vertragspartner

A person or business who serves another but on their own account, thus generally being paid either a flat rate or commission. The independent contractor is not subject to the control of she who hires them and thus the person who engages the contractor is not liable for the acts or ommissions of the contractor.

informed consent

A rule of full disclosure of all relevant facts which is necessary prior to the validity of a waiver of rights. Informed consent is most often a statutory obligation and effects most usually the field of medicine. Thus the physician must inform the patient of the risks and advantages of the procedure or medicine as well as the possible alternatives so that the patient can make a fully informed choice. Except in emergency, physicians must obtain the informed consent of the patient prior to treatment.

Injunction | Unterlassungsanordnung

An injunction at common law is an equitable remedy which can bar, either temporarily or permanently, and either prospectively or retrospectively any conduct of a defendant which constitutes a nuisance. Breach of such injunction will give rise to liquidated damages.

Gainsburg v. Dodge, 193 Ark. 473, 101 S.W.2d 178, 180.

Injury | Verletzung (eines rechtlich geschützten Interesses)

Injury implies damages and although the two terms are not synonyms they are very nearly so. Injury is the ordinary consequence of violation of one’s rights though injury does not always lead to damages which is why though the two terms are nearly the same they are not exactly so. Wherever there are damages there was an injury but ther is not always damages where there is injury. This principle of damnum sine injuria(q.v.) may be difficult for the lay person. However injury can encompassing abstract rights with no monetary value. Thus in cases of damnum sine injuria the injury is either de minimis, i.e. a trifling and too small to be remedied practically at the law or incommensurate. In such cases the plaintiff will have a satisfaction remedy of nominal damages - which are also called symbolic damages.

Personal | Verletzung körperlicher Integrität (Körperschaden)

Many torts, though not all, involve injuries to the body of a person. Such injuries are known as personal injuries.