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

Witt & Tani, TCPI 8. Duty Problem
administration of public affairs.” 161 U.S. 483, 499 (1896). The Warren Court expanded this
immunity to all federal executive officials in Barr v. Matteo, which relied on an additional policy
justification that forcing officials to defend themselves against civil suits would “consume time
and energies which would otherwise be devoted to governmental service . . . .” 360 U.S. 564, 571
(1959). In 1988, Congress legislated this immunity doctrine into law with the passage of the
Westfall Act, whose purpose was “to protect federal employees from personal liability for
common law torts committed within the scope of their employment . . . .” Federal Employees
Liability Reform and Tort Compensation Act, Pub. L. No. 100-694, 102 Stat. 4563 (1988).
b. State Officials
The history of official immunity for state officials begins, like that of their federal
counterparts, with strict rules of official liability for common law torts. New York, for example,
had a policy of broad liability buttressed by state indemnification. See Note, Tort Liability of
Administrative Officers in New York, 28 ST. JOHN’S L. REV. 265 (1954). In the early case of Hyde
v. Melvin, 11 Johns. 521 (N.Y. Sup. Ct. 1814), the Supreme Court of New York held a state
militia captain liable for improperly forcing a militia member to perform his duties, despite acting
under orders granting him authorization-in-fact to do so. As the 19th century unfolded, New York
created absolute immunity for a limited set of officials whose duties were judicial or highly
discretionary. See, e.g., Wilson v. Mayor, 1 Denio 585 (N.Y. Sup. Ct. 1845) (granting absolute
immunity to mayors and aldermen executing discretionary powers). After the start of the Civil
War, states expanded absolute immunity to low-level officials. David E. Engdahl, Immunity and
Accountability for Positive Governmental Wrongs, 44 U. COLO. L. REV. 1, 48 (1972). For
example, New York expanded absolute immunity to the state highway commissioner, finding that
while the statute that authorized the logging was unconstitutional, no liability existed because the
commissioner’s “duty was to execute the law as he found it.” Dexter v. Alfred, 19 N. Y. Supp.
770, 771 (N.Y. Sup. Ct. 1892).
Unlike the federal government, however, the vast majority of states did not continue the
expansion of absolute immunity to all officials. See 5 F. HARPER, F. JAMES & O. GRAY, THE LAW
OF TORTS § 29.10, n. 44, at 825-26 (3d ed. 2006). Instead, states tend to shield low-level
administrative officials, like prosecutors, with qualified immunity, which protects officials so long
as they (1) use discretion (2) in good faith while (3) acting in the scope of their official duties.
See, e.g., City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). Ministerial
officials—those that perform their duties not according to individual choice—are personally liable
for common-law torts, regardless of their good faith or lack of malice. See generally Gray, supra
notes 38-39, at 822-23. Many states, including New York, have enacted indemnification statues
to relieve low-level state employees held liable for acts performed in the course of their duties.
See Carolyn Kearns, Tort Liability of Administrative Officers in New York, 62 ST. JOHN’S L. REV.
181 (1954).
c. Constitutional Torts
Even as Congress and the courts worked to immunize federal officials from liability for
common law torts, the Supreme Court created a new category of constitutional torts for which
federal employees could be held personally liable. In Bivens v. Six Unknown Named Agents, 403
U.S. 388 (1971), the plaintiff sought damages from federal narcotics officers who had made a
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