Law Commons^™

When Uncle Sam Spills: A State Regulator’S Guide To Enforcement Actions Against The Federal Government Under The Clean Water Act, Ian M. Staeheli

Washington Law Review

The U.S. government is one of the largest polluters on the planet. With over 700 domestic military bases and countless more federal facilities and vessels operating within state borders, there exists an enormous potential for spills and discharges of pollutants into state waters. The regulatory burden for enforcing environmental laws against the federal government falls on the Environmental Protection Agency and state regulators. But enforcing laws and regulations against the federal government and its progeny is a daunting regulatory task.

Other scholarship addresses some of the vexing peculiarities involved when regulating Uncle Sam. Those works discuss the “confusing mess” that …

In Search Of A Unified Theory Of The Duties Flowing From Property Ownership In Virginia: A Response To Mcelhaney’S If A Tree Falls, E. Kyle Mcnew

Washington and Lee Law Review

In his Note, Ian McElhaney concludes that the Court got it right in Cline v. Dunlora South, LLC—that the landowner owes no duty to protect travelers on adjoining roadways from natural conditions on the landowner’s property—because the Court also got it right in Cline v. Commonwealth when it held that the Commonwealth of Virginia may have that duty instead. In the narrowest view, that is certainly a defensible position. If the case is just about natural conditions and roads, then there is intuitive appeal in saying that they are the Commonwealth’s roads; so, it is the Commonwealth’s job to make …

If A Tree Falls In A Roadway, Is Anyone Liable?: Proposing The Duty Of Reasonable Care For Virginia’S Road-Maintaining Entities, Ian J. Mcelhaney

Washington and Lee Law Review

This Note considers whether a duty for road-maintaining entities is tenable under Virginia law. It also explores the rationale for imposing differing liabilities between landowners and road-maintaining entities. Part III reviews the various duties other states use with respect to dangerous roadside trees and concludes that the duty of reasonable care is most appropriate for Virginia. Sovereign immunity is a companion issue and is addressed in Part IV. The Part provides a brief overview of the policy arguments for sovereign immunity, before reviewing immunity’s impact at the state, county, and municipal levels. The Part also addresses a government employee’s entitlement …

A Few Thoughts On “If A Tree Falls In A Roadway . . . .”, David Eggert

Washington and Lee Law Review

This Response to Ian McElhaney’s note examines (1) the background legal context that got us to where we are on falling-tree liability; (2) how this peculiar issue fits into Virginia’s general approach to the law; and (3) presents some thoughts on Mr. McElhaney’s reasoning and ultimate conclusions in urging liability for road maintainers.

Lewis V. Clarke, Summer L. Carmack

Public Land & Resources Law Review

One manner in which Indian tribes exercise their inherent sovereignty is by asserting sovereign immunity. In Lewis v. Clarke, the Court decided that the sovereign immunity extended to instrumentalities of tribes did not further extend to tribal employees acting within the scope of their employment. The Court acknowledged the concerns of the lower court, namely, the possibility of setting a precedent allowing future plaintiffs to sidestep a tribe’s sovereign immunity by suing a tribal employee in his individual capacity. However, the Supreme Court ultimately felt that the immunity of tribal employees should not exceed the immunity extended to state …

Sovereign Immunity For Political Subdivisions, Kathy Sue Magoline

Akron Law Review

The Ohio Supreme Court continued in 1983 to expand and define its abrogation of the doctrine of sovereign immunity for municipal corporations and political subdivisions. The court's decisions in this area have resulted in a significant increase in tort liability for local governments and school districts, who may now be found liable for tortious acts in the same manner as private individuals.

Ohio's Abrogation Of Sovereign Immunity - A Rude Awakening, Roger D. Emerson

Akron Law Review

The Ohio Supreme Court's recent decisions have practically abolished the defense of sovereign immunity for state subdivisions and municipal corporations. For many years, governmental units such as municipal corporations have used this ancient legal doctrine to defend themselves from tort suits arising out of the negligence of their employees. The court's decisions have sent municipalities searching for insurance coverage and have sent plaintiffs attorneys back into court, filing motions to vacate previous adverse judgements.

The effect of such decisions have become more pronounced since the court's decision in Marrek v. Board of Commissioners. In Marrek, the Ohio Supreme …

A Blanket Of Immunity Will Not Keep Florida Dry: Proposed Adjustments To Florida's Drainage Regulations And Sovereign Immunity Laws To Account For Climate Change Impacts, Theresa K. Bowley

Florida A & M University Law Review

Addressing stormwater drainage in Florida has been an ongoing challenge since the middle of the twentieth century when the State began to experience rapid growth. Drainage problems already occur in Florida during seasonal high tides, heavy rains, and in storm surge events, and the impacts projected by climate change will exacerbate flooding. Identification of deficiencies in Florida’s existing drainage systems should include the responsibility and liability of drainage systems to be retrofitted to adapt to climate change. Part I of this paper explains the connection between global climate change and its effects on stormwater drainage in Florida. The existing governmental …

A Synopsis Of Texas And Federal Sovereign Immunity Principles: Are Recent Sovereign Immunity Decisions Protecting Wrongful Governmental Conduct., Marilyn Phelan

St. Mary's Law Journal

The Texas Supreme Court recently rendered several decisions involving governmental entities reflecting the court’s inflexible application of the doctrine of sovereign immunity. These decisions raise concerns that the Court may be insulating government employees from adherence to ethical codes of conduct. Just as Congress enacted legislation requiring accuracy and reliability from financial officers of corporations, there exists a similar need for Texas courts to protect the public from governmental harm through misconduct. The current awareness of governmental officials lessens the likelihood of governmental transparency and accountability. This Article analyzes the Court’s current application of the sovereign immunity doctrine to provide …

The Conflict Between State Tests Of Tribal Entity Immunity And The Congressional Policy Of Indian Self-Determination, Aaron F.W. Meek

American Indian Law Review

No abstract provided.

A "Preposterous Anomaly": Sovereign Immunity In Kentucky Following The Crash Of Comair Flight 5191, Nathaniel R. Kissel

Kentucky Law Journal

No abstract provided.

Bittle V. Bahe: A Drunken Mistake, Brian Alan Burget

American Indian Law Review

No abstract provided.

Plea To The Jurisdiction: Defining The Undefined., Rebecca Simmons, Suzette Kinder Patton

St. Mary's Law Journal

Pleas to the jurisdiction have been part of Texas jurisprudence since shortly after Texas became a state. The resulting confusion over the procedure and standards to be employed in resolving a plea was partially alleviated by the Texas Supreme Court’s decision in Texas Department of Parks and Wildlife v. Miranda. From a number of reports from Texas’s reviewing courts, however, it is evident the courts continue to struggle with the plea. Currently there are no established procedural rules to assist with the resolution of a plea to the jurisdiction. Thus, procedures vary from court to court and case to case. …

A Tale Of Conflicting Sovereignties: The Case Against Tribal Sovereign Immunity And Federal Preemption Doctrines Preventing States' Enforcement Of Campaign Contribution Regulations On Indian Tribes, Paul Porter

University of Michigan Journal of Law Reform

This Note will discuss whether Indian tribes can assert tribal sovereign immunity to avoid compliance with state campaign finance regulation and whether such regulations should be preempted by federal law. Tribal sovereign immunity is not an enshrined constitutional imperative; it exists only under federal common law and can be limited by the courts from blocking state suits to enforce campaign finance regulations against tribes. This Note will also argue that state campaign finance regulations should not be preempted by federal law because states have a compelling interest in protecting their political processes from corruption that outweighs tribal interests in flouting …

Mind The Gap: Expansion Of Texas Governmental Immunity Between Takings And Tort., Jadd F. Masso

St. Mary's Law Journal

In Jennings v. City of Dallas, the city’s wastewater collection division was dispatched to unstop a clogged sewer main but instead caused sewage to spew into the Jennings’ home with dramatic force, causing extensive damage. The Jennings subsequently filed suit against the city, alleging its actions constituted an unconstitutional taking, damaging, or destruction of their property for public use without adequate compensation in violation of Article I, § 17 of the Texas Constitution. The issue presented from the case was whether an individual citizen should be liable for such losses when the damage—as an incident to governmental action—in effect benefits …

Civil Practice And Procedure, John R. Walk

University of Richmond Law Review

No abstract provided.

Is Sue And Be Sued Language A Clear And Unambiguous Waiver Of Immunity., A. Craig Carter

St. Mary's Law Journal

Because “sue and be sued” language is ambiguous at best, courts should not find that this language is a waiver of immunity. Under Texas law, governmental entities—including the state, its agencies, and political subdivisions—are entitled to sovereign immunity from both suit and liability. For sovereign immunity to be applicable to governmental entities, sovereign immunity applies unless the legislature has clearly and unambiguously waived it. Although numerous Texas appellate courts have held that “sue and be sued” language is a waiver of sovereign immunity, the Texas Supreme Court has squarely addressed the issue only once, in Missouri Pacific Railroad Co. v. …

Official Immunity In Kentucky: The New Standard Under Yanero V. Davis, G. Thomas Barker

Kentucky Law Journal

No abstract provided.

The Reemergence Of The Sovereign Immunity Doctrine In Kentucky, Earl F. Hamm Jr.

Kentucky Law Journal

No abstract provided.

Principles Of Governmental Immunity In Texas: The Texas Government Waives Sovereign Immunity When It Contracts - Or Does It Comment., Renna Rhodes

St. Mary's Law Journal

When the government causes injury through negligence or by breaching a contract, the injured party must face the obstacle of governmental immunity. The doctrine of governmental immunity can act as a total bar to recovery, especially in Texas. Over the years, governmental immunity increasingly has faced attack from courts and commentators. Some states, including Texas, have revised the common-law doctrine, allowing the government to be sued in certain situations. In Texas, principles of governmental immunity are often misconstrued. Which principles of governmental immunity apply to a particular situation in Texas depends on whether the defendant is a state entity or …

Antitrust Immunity For Local Governments: Maryland's Response In The Wake Of Boulder

Maryland Law Review

No abstract provided.

A Unified Approach To State And Municipal Tort Liability In Washington, Mark Mclean Myers

Washington Law Review

This Comment examines and analyzes the two judicially created limitations on governmental tort liability in Washington. It concludes that the discretionary governmental acts immunity is a proper limitation on governmental tort liability, but that the public duty doctrine should be abandoned.

Tort Claims Against The State: Comparative And Categorical Analyses Of The Ohio Court Of Claims Act And Interpretations Of The Act In Tort Litigation Against The State, Lawrence P. Wilkins

Cleveland State Law Review

Upon passage of the Ohio Court of Claims Act of 1975, the State of Ohio waived its sovereign immunity and consented to be sued in a court established solely for that purpose. Within a relatively short period of time, the Ohio Court of Claims has made a significant imprint on the development of tort law in Ohio, distinguishing itself in its efforts to provide an effective forum for those injured by the state or one of its instrumentalities while defining the limits beyond which state liability for tortious conduct will not extend. As might be expected of a new court …

The Latest Event In The Confused History Of Municipal Tort Liability, J. Bart Budetti, Gerald L. Knight

Florida State University Law Review

No abstract provided.

Sovereign Immunity Abrogated In Ohio: Krause V. State, James B. Wilkens

Cleveland State Law Review

The decision thus promulgates three principal rulings: (1) that sovereign immunity does not provide a bar to bringing an action against the State of Ohio, (2) that the state is liable by virtue of the doctrine of respondeat superior for the authorized activities of its officers, employees and other agents, and (3) that freedom of individual agents from civil liability arising out of authorized activities for the state is retained. The effects of these rulings are far from obvious, in large part because of the confused prior state of the law upon which they are engrafted. Furthermore, the grounds given …

Delay In Notice Of Tort Claim Against A Government Agency, William P. Farrall

Cleveland State Law Review

Despite an onslaught of criticism and a rationale predicated on the discredited doctrine of Divine Right of Kings, the rule of sovereign immunity still exists in many states. As a result of this anachronism, municipalities and other subdivisions of state government have continued to escape liability for the tortious conduct of their agents. This situation has persisted despite a tendency by the courts to restrict rather than extend the principle of immunity. Statutory enactments such as short term notice provisions applied against potential plaintiffs by states and their subdivisions, when strictly construed by the courts, have had the effect of …

Governmental Liability For Inadequate Traffic Sign, Robert C. Egger

Cleveland State Law Review

Because the gratuitous rider situation, and others, provide a need fora clear rule as to the standard of care required of a governmental agency with regard to highway signing and because the results of present cases seem to be at great variance, this paper is presented as an attempt to set forth and clarify the existing standards and to propose a practical rule for uniform adoption. Thus, the material below is confined to a study of only the standard by which the adequacy of highway signing is measured in determining the liability of a governmental agency upon an allegation naming …

Birth And Death And Governmental Immunity, Verne Lawyer

Cleveland State Law Review

Much as been written concerning the doctrine of governmental immunity and the doubtful justice of its application. This article is aimed toward a discussion of the role of the courts in the rise and decline of the doctrine in the United States with primary emphasis upon the reasoning behind the court decisions. The multitude of cases in which this doctrine is invoked presents a zig-zag pattern of conflict in the thinking of the courts, some of which adhere to a rigid rule of stare decisis, others of which attempt to modify and adapt the doctrine to the rapidly expanding present …

Governmental Immunity Of County Hospitals, Alice K. Henry

Cleveland State Law Review

The weight of authority holds that ownership and maintenance of a county hospital is a governmental function, even though the hospital is maintained for profit, and the county charges for treatment.

Municipal Corporations-Liability In Tort-Prospective Judicial Abrogation Of The Sovereign Immunity Concept, Donald E. Vacin

Michigan Law Review

Plaintiff's decedent was killed by a fall down the elevator shaft of a building owned and maintained by the City of Detroit. Plaintiff alleged that defendant city negligently failed to protect and enclose the shaft, in violation of its own ordinances, and that such failure was the proximate cause of her husband's death. The city moved to dismiss, claiming that it was engaged in a governmental function and therefore was immune from tort liability. On appeal from an order dismissing the complaint, held, affirmed by an evenly divided court. However, a majority of the court prospectively overruled the judicial …