Immunities from tort liability & Sharing liability among multiple defendants

Federal Government

—traditionally immune

• Sovereign immunity not waived for enumerated torts, discretionary functions, government contractor product liability (unless failed to warn or conform with government specifications), and most traditional government activities

• Immunity waived for intentional torts committed by law enforcement officers

State Government

—most states have waived sovereign immunity, at least partially, but acts vary

• Municipalities and local government agencies—usually governed by state tort claims acts; immunity traditionally attached only to governmental functions

• Public-duty rule—no liability to any one citizen for municipality’s failure to fulfill duty owed to public at large, unless special relationship creates special duty

Government officials

—immunity applies if performing discretionary functions entrusted by law unless government officials act with malice or improper purpose; no tort immunity for carrying out ministerial acts

• DE Point of Law—immunity applies if act or omission (1) arose out of performance of official duty requiring discretion, (2) was done in good faith for the public interest, and (3) was done without gross or wanton negligence

Absolute immunity from personal liability

legislators performing their legislative functions, judges performing their judicial functions, prosecutors

• DE Point of Law—judges, attorney general and deputy attorneys general, and members of General Assembly performing their official duties

Intrafamily

interspousal immunity extinguished in most states; parent-child immunity generally limited to core parenting activities

• DE Point of Law—no interspousal immunity; parental immunity preserved when parental control, authority, or discretion involved

Charitable

—eliminated or capped in most states

Joint and several liability

—(default for MBE) each defendant found liable for single indivisible harm liable for entire harm

Pure several liability

—each defendant liable only for defendant’s proportionate share

• DE Distinction—DE has not eliminated joint and several liability in tort cases

Satisfaction and release

—no double recovery

Contribution

—tortfeasor who paid more than fair share of common liability generally can recover excess of fair share from joint tortfeasor; can recover no more than joint tortfeasor would be liable to plaintiff for; not generally available for intentional tortfeasors

• DE Point of Law—joint tortfeasor who enters into settlement not entitled to contribution from another joint tortfeasor whose liability was not extinguished by settlement

Indemnification

—shifting of loss from vicariously liable tortfeasor to primarily responsible party; may be based on agreement, equity, subsequent additional harm, or strict products liability