• February 18, 2014

People cannot sue themselves for negligence.

If government is “for the people, of the people, by the people,” is a lawsuit against the government for negligence a suit against oneself?

In some weird abstract or attenuated way, yes, it is.

Imagine if citizens could sue legislators or regulators for dumb laws or rules (“but for Minnesota’s ‘conceal and carry law‘ I would not have gotten shot….” or “if building inspectors were required to test widgets, the damages would have been avoided…”). Such claims would be kind of circular since the citizens voted in the legislators who passed the stupid statutes or rules. Allowing such suits would also pose a giant challenge to our shared interest in the least expensive governance we can get by with not to speak of the significant separation of powers complications this would create between the legislature, the executive branch, and judiciary.

On the other hand, our political and legal system are centuries away from strict sovereign immunity, characterized by the expression, “the King can do no wrong…”

How do we balance when state actors (and therefore the state) get a pass — that is, when they are immune from suit — and when they have to be accountable for their wrong-doing, whether negligent or intentional?

This is a constant tussle, most recently on display at the Minnesota Supreme Court in the case of Murphy v. Majeski, in which a state emergency vehicle flew into an intersection during an emergency, crashing into an innocent third party and causing severe injury.

The issue is whether the challenged conduct was “discretionary” or “ministerial.” That is, was the required decision-making complicated, contextual, requiring the exercise of judgment (“discretionary,” in which case we give the state actor immunity), or, on the other hand, was the decision-making automatic, straight-forward, simple, and definite, leaving nothing to the exercise of discretion (“ministerial,” in which case we are more inclined to permit liability)?

The majority of the Minnesota Supreme Court held that the statutory requirement that “emergency vehicles …shall slow down as necessary for safety…upon approaching a red or stop signal or any stop sign” is discretionary and not ministerial.

The Minnesota Supreme Court’s decision is noteworthy in the atypical split between the majority opinion and the dissent on non-ideological grounds (Justices Anderson, Stras, and Wright, dissenting from a majority opinion authored by Justice Page).

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