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

Witt & Tani, TCPI 8. Duty Problem
2. Political accountability? Does it matter that victims of injuries caused by the state have
another way of holding their injurer accountable? The democratic electoral system offers a
political accountability mechanism as an alternative to legal rights enforced through the courts?
When a person is injured by the General Motors Company, a tort suit may be her only remedy.
But when you are injured by the City of New York, you can vote the bums out.
3. Potholes in the law. State level waivers of sovereign immunity often include exceptions
or special treatment for recurring problems.
Consider, for example, the lowly pothole. A New York statute immunizes the state from
liability arising from pothole-related claims between November 1 and May 15—the season in
which ice and snow creates the most severe pothole problems. N.Y. HIGH. LAW § 58 (McKinney
2014); see also Sam Roberts, Taking on a Pothole Law: In Winter, New York State Rejects
Drivers’ Claims, N.Y. TIMES, Apr. 29, 2014.
Ten states have statutory provisions that grant full immunity for injuries arising from
pothole- or weather-related defects. See DEL. CODE ANN. tit. 10, § 4011 (2014); GA. CODE ANN. §
50-21-24 (2014); IDAHO CODE ANN. § 6-904 (2014); KAN. STAT. ANN. § 75-6104 (2014); MISS.
CODE ANN. § 11-46-9 (2014); OKLA. STAT. tit. 51, § 155 (2014); OR. REV. STAT. § 30.265 (2014);
S.C. CODE ANN. § 15-78-60 (2014); WYO. STAT. ANN. § 1-39-120 (2014); Lane v. State, 811 A.2d
190 (Vt. 2002).
4. Local government liability for recreational activities. Every winter a particular
recreational activity creates a slippery slope problem for municipalities across much of the
country: sledding.
Some worry that sledding liability exposes municipalities to vast liabilities, possibly
increasing municipalities’ insurance and tax rates. See Husna Haq, More US Cities Ban Sledding.
Will It Work?, CHRISTIAN SCI. MONITOR (Jan. 5, 2015) (noting that Sioux City, Iowa, and Boone,
Iowa, have paid millions to individuals injured while sledding in city parks). Thus, to limit
potential liability, some municipalities like Dubuque ban sledding in many city parks. See City of
Dubuque, Iowa—City Council Proceedings Regular Session, CITY OF DUBUQUE 2 (Jan. 5, 2015).
Other cities in Iowa have used non-legislative measures to decrease potential liability. For
instance, Des Moines has added signs at sledding hills, warning sledders that they sled at their
own risk. DES MOINES, IOWA, CODE § 74-117 (2013); Scott McFetridge, Liability Concerns
Prompt Some Cities to Limit Sledding, ASSOC. PRESS (Jan. 4, 2015). Such signs likely shield
municipalities from negligence claims. See Hecht v. Des Moines Playground & Recreation Ass’n,
287 N.W. 259, 264 (Iowa 1939) (holding that adequate warnings are “all that [a defendant’s duty
of] reasonable and ordinary care require[s]”). Some states have enacted statutory immunization of
state and local governments for injuries arising out of recreational injuries, as in Michigan and
Wisconsin. MICH. COMP. LAWS § 691.1407 (2014); WIS. STAT. ANN. 895.52 (West 2014).
Which approach is better: closing the slope (Dubuque) or immunizing the municipality by
warning signs (Des Moines) or enacting legislative immunity (Michigan and Wisconsin)? Even
471