Tort Immunity

There are three categories of immunity that may protect a defendant from tort liability: intrafamily immunity, governmental immunity and charitable immunity.

The point of intrafamily immunity under the common law was to prevent situations where members of an immediate family would end up on opposite sides of a court case. Intrafamily immunity covers immunity between spouses and between parents and children. 

Under the common law, husbands and wives were considered one legal entity and thus, could not sue each other. However, almost all jurisdictions have done away with this idea of a single legal entity and now allow husbands and wives to sue each other. See Beattie v. Beattie, 630 A.2d 1096 (Del. 1992). 

Further, under the common law, children were barred from suing their parents for personal torts but were allowed to sue their parents for torts committed against the child’s property. Today, most jurisdictions have done away with immunity, including where a child is bringing a negligence cause of action against his parents. Thus, a child can sue his parents for intentional torts and for acts of negligence, except where the negligent conduct concerns supervision, discipline, or care of the child. See Cates v. Cates, 156 Ill. 2d 76 (1993). See also Glaskox v. Glaskox, 614 So. 2d 906 (Miss. 1992).

The origin of governmental immunity lies in the common law where state and federal governments had sovereign immunity that insulated them from liability. However, many jurisdictions today have done away with governmental immunity. See Molitor v. Kaneland Community Unit District No. 302, 163 N.E.2d 89 (Ill. 1959).

Further, the Federal Tort Claims Act has eliminated immunity for negligence or wrongful acts or omissions and some intentional torts committed by government employees. However, immunity is retained for some intentional torts, strict liability and for discretionary acts by government employees. Discretionary acts are defined as acts that the employee has the option to either do or not do. This is opposed to ministerial acts, which are acts the employee has no choice but to do. Federal employees are immune from liability for ministerial acts. 

Finally, the root of the charitable immunity lies in the common law as well. The rationale was that the budgets of charitable organizations were made up of donations and that, if charitable organizations had to pay tort claims, the money that people donated would not be put toward the purpose they had intended it for. 

Today, most jurisdictions have eliminated the charitable immunity, reasoning that the need to compensate victims of torts committed by charities outweighed the need to protect the intent of charitable donors. See Bing v. Thunig, 2 N.Y.2d 656 (1957). However, there are some states that allow plaintiffs to sue charitable organizations for tort liability but limit the recovery that charitable organizations must pay out.