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No Governmental Immunity for Independent Contractor

May 4, 2013 — by Jeff Mundy
Tags: Governmental Immunity

Under the TTCA, a person is not an employee of a governmental unit if the person is an independent contractor or "performs tasks the details of which the governmental unit does not have the legal right to control." The statutory definition requires both "control and paid employment to invoke the [TTCA]'s waiver of immunity."

Olivares v. Brown & Gay Engineering (Tex. App. - Houston [14th Dist.] 2013, no pet).

Federal Governmental Immunity - Federal Tort Claims Act

Apr 17, 2013 — by Jeff Mundy
Tags: Governmental Immunity

The district court held that those claims fell under the FTCA's discretionary-function exception, which provides that sovereign immunity is not waived for discretionary acts and decisions.

Whether the discretionary exception applies involves a two-part inquiry. First, the act must "involve an element of judgment or choice." This first part is met "[i]f a statute, regulation, or policy leaves it to a federal agency or employee to determine when and how to take action[.]" Second, the challenged conduct must involve "governmental actions and decisions based on considerations of public policy."  The second part of the inquiry asks "not whether the decision maker 'in fact engaged in a policy analysis when reaching his decision but instead whether his decision was susceptible to policy analysis.'"  In re: FEMA Trailer Formaldehyde Products Liability Litigation (5th Cir. 2013)


Federal Tort Claims Act - Supreme Court

Apr 9, 2013 — by Jeff Mundy
Tags: Governmental Immunity

The FTCA "was designed primarily to remove the sovereign immunity of the United States from suits in tort." The Act gives federal district courts exclusive jurisdiction over claims against the United States for "injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission" of a federal employee "acting within the scope of his office or employment." 28 U. S. C. §1346(b)(1). This broad waiver of sovereign immunity is subject to a number of exceptions.... One such exception, relating to intentional torts, preserves the Government's immunity from suit for "[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights." §2680(h). 

Millbrook v United States, (Supreme Court of the United States, 2013)


Governmental Immunity for Road Defects

Nov 24, 2012 — by Jeff Mundy
Tags: Governmental Immunity

When a special defect in a roadway exists, the government owes the same duty to users that a private landowner owes to an invitee.

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