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Despite how clear a liability case appears, with easily identified negligence resulting in death, injury or damage, a government function is immune from tort liability. In March, a New Jersey woman called her local fire department after smelling smoke from an unidentifiable source in her home. After the fire department performed tests throughout the house they also failed to locate the source, and despite having a thermal imaging camera that could detect hot spots on the walls in their truck, the firemen left the residence.

A mere four hours later when the entire family was asleep, a fire broke out near the home’s basement wall, killing four children. Because the public status of fire departments, a liability case against the department despite the negligence makes a case nearly impossible. The police department is sometimes prone to negligence suits by people they are charged to protect, but a plaintiff must demonstrate that the police had actual knowledge of the danger the plaintiff was in, as well as show the plaintiff must rely on the police for protection.

Most lawsuits against the police involve an order of protection because of a stalking boyfriend or husband and ongoing communication between a battered woman and her local police department. Despite the evidence of negligence, most government entities performing a government function are immune from tort liability for resulting harm.

The difference between a government function immune from tort liability and a proprietary function exposed to tort liability is sometimes hard to discern. Courts have employed a revenue test in order to determine if a function is proprietary, often based on if it operates for profit. In the past, governments enjoyed sovereign immunity, but now most are held liable for their negligence through passage of tort claims acts.

In response to negligence actions against municipalities, some cities are trying to escape part of the liability held against them by enacting laws restricting them. For more information on tort liability, please contact us to confer with an attorney.