This paper, which is written as a companion to L.W. Thomas' paper "The Liability of State Highway Departments for Design, Construction, and Maintenance Defects", discusses such aspects as absolute immunity, liability on ordinary negligence and discretionary-ministerial distinction. Design activities, maintenance activities and the operation of vehicles are covered. Situations where a public official has acted in excess of his jurisdiction are discussed, as well as cases which enunciate a distinction between public duties and private duties. The misfeasance-nonfeasance distinction is outlined. Three cases are quoted wherein the defense of acting under orders was successfully interposed. It is noted that the doctrine of "respondeat superior" has no application to public officers. It is also noted that it is clearly established that where the state has been made to respond in damages for the negligence of its employee, the state is entitled to indemnification against the employee for the amount of the recovery against it. The point is made that in the defense of a lawsuit the discretionary and public duty concepts should be argued together, and the defense of nonfeasance should be joined thereto when the facts involve omission to act. It is emphasized that the inapplicability of the doctrine of "respondeat superior" to public officials should prove an impregnable defense where action is brought against a higher official for the torts of subordinates in which he did not participate.


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  • Accession Number: 00178359
  • Record Type: Publication
  • Files: TRIS, TRB
  • Created Date: Aug 31 1998 12:00AM