The legal questions sorrounding liability for negligence by highway department personnel and the legal authority relative thereto are reviewed. Influenced by various reasons for treating public officials differently from private persons with regard to liability for torts and other policy considerations, the law developed along the lines of conditional immunity. Cases adopting the theory of absolute immunity are reviewed in which the rationale developed is that because a county cannot be held liable for view has been taken that a suit against public officals is no different from that against private persons. Of the various tests evolved to determine whether liability should be imposed, the most important is the test of whether the activity is discretionary or ministerial. The special privileges afforded to judges are discussed and the terms involved in the concept are defined. The planning operational dichotomy adopted by the Federal Courts in interpreting the discretionary exemption of the Federal Tort Claims Act serves to explain the results of cases. Specific aspects of highway design that have been held to be discretionary are listed. Maintenance activities at the planning stage, as opposed to maintenance activities at the operational stage, which are held to be within discretionary exemption are reviewed. Although the operation of a motor vehicle by a highway department employee is considered a ministerial duty, 2 cases are quoted which hold that the operation of a snowplow cannot be so classified. It is pointed out that discretionary exemption does not extend to situations in which an official has exceeded his jurisdiction. Cases are described that enunciate a distinction between public duties and private duties. Cases involving misfeasance-nonfeasance are also reviewed. Three cases are described in which the defense of acting under orders was successfully interposed. It has been firmly established that the doctrine of respondent superiority has no application to public officials, and that the state is entitled to indemnification against the employee where the state has responded in damages for the negligence of that employee.

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  • Supplemental Notes:
    • Distribution, posting, or copying of this PDF is strictly prohibited without written permission of the Transportation Research Board of the National Academy of Sciences. Unless otherwise indicated, all materials in this PDF are copyrighted by the National Academy of Sciences. Copyright © National Academy of Sciences. All rights reserved.
  • Corporate Authors:

    Transportation Research Board

    500 Fifth Street, NW
    Washington, DC  United States  20001
  • Publication Date: 1975-9

Media Info

  • Media Type: Digital/other
  • Features: References;
  • Pagination: 22 p.
  • Serial:
  • Publication flags:

    Open Access (libre)

Subject/Index Terms

Filing Info

  • Accession Number: 00127882
  • Record Type: Publication
  • Contract Numbers: 20-6
  • Files: TRIS, TRB
  • Created Date: Apr 21 1976 12:00AM