Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 8. Duty Problem
On rehearing, however, the panel reversed itself, finding that the government enjoyed
DFE immunity:
there is ample record evidence indicating the public-policy character of the Corps’s
various decisions contributing to the delay in armoring Reach 2. Although the
Corps appears to have appreciated the benefit of foreshore protection as early as
1967, the record shows that it also had reason to consider alternatives (such as
dredging and levee “lifts”) and feasibility before committing to an armoring strategy
that, in hindsight, may well have been optimal. The Corps’s actual reasons for the
delay are varied and sometimes unknown, but there can be little dispute that the
decisions here were susceptible to policy considerations. Whatever the actual
reasons for the delay, the Corps’s failure to armor timely Reach 2 is shielded by the
DFE.
696 F.3d 436, 451 (5th Cir. 2012) (footnote omitted).
6. Local governmental immunity? Local governments in the United States were initially
deemed to have the same liability as private corporations. But beginning in the middle of the
nineteenth century, courts began to distinguish between local governments in their governmental
capacity, in which they would enjoy sovereign immunity of the state, and local governments in
their proprietary capacity, in which they would not. See Note, Municipal Tort Liability, 7 DUKE
L.J. 142, 142-43 (1958). Today, the state-level waivers of sovereign immunity typically waive
the sovereign immunity of local governments in their governmental capacity. Nonetheless,
questions of local government tort liability continue to raise tricky problems. Consider the “crazy
love” case that gripped New York City for nearly a decade after the 1959 events that led to it:
Riss v. City of New York, 22 N.Y.2d 579 (1968)
BREITEL, J.
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 facts are amply described in the dissenting opinion and no useful purpose
would be served by repetition. 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.
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