IMMUNITY
immunity. 1. Any exemption from a duty, liability, or service of process; esp., such an
exemption granted to a public official.
“An immunity is a defense to tort liability which is conferred upon an entire group or class of
persons or entities under circumstances where considerations of public policy are thought to require special protection for the person, activity or entity in question at the expense of those injured by its tortious act. Historically, tort litigation against units of government, public officers, and charities, and between spouses, parents and children, has been limited or prohibited on this basis.” Edward J. Kionka, Torts in a Nutshell 341 (2d ed. 1992).
absolute immunity.A complete exemption from civil liability, usu. afforded to officials while performing particularly important functions, such as a representative enacting legislation and a judge presiding over a lawsuit. Cf. qualified immunity. [Cases: Officers and Public Employees
114. C.J.S. Officers and Public Employees §§ 247–248, 251–258.]
congressional immunity.Either of two special immunities given to members of Congress: (1) the exemption from arrest while attending a session of the body to which the member belongs, excluding an arrest for treason, breach of the peace, or a felony, or (2) the exemption from arrest or questioning for any speech or debate entered into during a legislative session. U.S. Const. art. I, § 6, cl. 1. See SPEECH AND DEBATE CLAUSE. [Cases: United States 12. C.J.S. United States
§§ 27–28.] constitutional immunity.Immunity created by a constitution.
diplomatic immunity.The general exemption of diplomatic ministers from the operation of local law, the exception being that a minister who is plotting against the security of the host nation may be arrested and sent out of the country. • A minister’s family shares in diplomatic immunity to a great, though ill-defined, degree. [Cases: Ambassadors and Consuls 3. C.J.S. Ambassadors and
Consuls §§ 15–23.]
discretionary immunity.A qualified immunity for a public official’s acts, granted when the act in question required the exercise of judgment in carrying out official duties (such as planning and policy-making).28 USCA § 2680(a). [Cases: Municipal Corporations 728. C.J.S. Municipal Corporations § 665.]
“Probably no one test will control the decision on discretionary immunity. Although the fact that the government has omitted to act is not in itself a defense, the discretionary immunity is frequently emphasized in nonfeasance cases. On the other hand, where the government’s activity is affirmative, specific, and in violation of a statute, regulation, or constitutional provision imposing a duty upon government, courts are often willing to say there is no room for discretion.” Prosser and Keeton on the Law of Torts § 131, at 1041–42 (W. Page Keeton ed., 5th ed. 1984).
executive immunity. 1. The absolute immunity of the U.S. President or a state governor from civil damages for actions that are within the scope of official responsibilities. [Cases: United States 26. C.J.S. United States §§ 45–47.] 2. The qualified immunity from civil claims against lesser executive officials, who are liable only if their conduct violates clearly established constitutional or statutory rights. • Executive immunity generally protects an official while carrying out clearly established responsibilities about which a reasonable person would know. Cf. executive privilege under PRIVILEGE(3).
foreign immunity.The immunity of a foreign sovereign, its agents, and its instrumentalities
from litigation in U.S. courts. [Cases: International Law 10.31–10.39. C.J.S. International Law
§§ 46–52, 54–55.] government immunity.See sovereign immunity.
intergovernmental immunity.The immunity between the federal and state governments based
on their independent sovereignty. See INTERGOVERNMENTAL-IMMUNITY DOCTRINEE.
judicial immunity.The immunity of a judge from civil liability arising from the performance
of judicial duties. [Cases: Judges 36. C.J.S. Judges §§ 86–92, 94–96.]
legislative immunity.The immunity of a legislator from civil liability arising from the
performance of legislative duties. See congressional immunity. prosecutorial immunity.The absolute immunity of a prosecutor from civil liability for
decisions made and actions taken in a criminal prosecution.
qualified immunity.Immunity from civil liability for a public official who is performing a discretionary function, as long as the conduct does not violate clearly established constitutional or statutory rights. — Also termed prima facie privilege. Cf. absolute immunity. [Cases: Civil Rights
1376; Officers and Public Employees 114. C.J.S. Civil Rights §§ 143–144, 146, 157, 160;
Officers and Public Employees §§ 247–248, 251–258.]
sovereign immunity. 1. A government’s immunity from being sued in its own courts without its consent. • Congress has waived most of the federal government’s sovereign immunity. See FEDERAL TORT CLAIMS ACT. 2. A state’s immunity from being sued in federal court by the state’s own citizens. — Also termed government immunity; governmental immunity.
work-product immunity.See WORK-PRODUCT RULE.
2.Torts. A doctrine providing a complete defense to a tort action. • Unlike a privilege, immunity does not negate the tort, and it must be raised affirmatively or it will be waived. Cf. PRIVILEGE(2).
charitable immunity.The immunity of a charitable organization from tort liability. • This immunity has been eliminated or restricted in most states. — Also termed eleemosynary defense.
[Cases: Charities 45(2). C.J.S. Charities §§ 66–67.]
corporate immunity.A corporate officer’s immunity from personal liability for a tortious act committed while acting in good faith and within the course of corporate duties. [Cases:
Corporations 306, 336. C.J.S. Corporations §§ 537–540, 544–545, 547, 549.]
husband–wife immunity.The immunity of one spouse from a tort action by the other spouse for personal injury. • As of 1992, 38 states and the District of Columbia had abolished interspousal tort immunity either by judicial opinion or by statute. Nine states had abolished the rule only in specific instances such as intentional or vehicular torts. — Also termed interspousal immunity; interspousal tort immunity; marital immunity. [Cases: Husband and Wife 205(2).] interspousal immunity.See husband–wife immunity.
judgmental immunity.See ERROR-OF-JUDGMENT RULE. marital immunity.See husband–wife immunity.
parental immunity. 1. The principle that children cannot sue their parents, and that parents cannot sue their children, for tort claims. • This tort immunity did not exist at English common law; it was created by American courts, first appearing in Hewellette v. George, 9 So. 885 (Miss. 1891). Many courts have abolished the doctrine for some purposes, such as actions by unemancipated minors against parents to recover for injuries sustained in motor-vehicle accidents. See, e.g., Merrick v. Sutterlin, 610 P.2d 891 (Wash. 1980) (en banc). Nor does the immunity apply when an injury is inflicted by the parent or child through willful, wanton, or criminal conduct. See, e.g., Schenk v. Schenk, 241 N.E.2d 12 (Ill. App. Ct. 1968). — Also termed parent–child immunity; parental-immunity doctrine. [Cases: Parent and Child 11. C.J.S. Parent and Child §§ 260, 299–300, 316–320.] 2. The principle that parents are not liable for damages caused by the ordinary negligence of their minor child. Cf. PARENTAL-LIABILITY STATUTE. [Cases: Parent and Child 13.5(2). C.J.S. Parent and Child § 191.]
3.Criminal law. Freedom from prosecution granted by the government in exchange for the person’s testimony. • By granting immunity, the government can compel testimony — despite the Fifth Amendment right against self-incrimination — because that testimony can no longer incriminate the witness. [Cases: Criminal Law 42. C.J.S. Criminal Law §§ 78–86.]
pocket immunity.Immunity that results from the prosecutor’s decision not to prosecute, instead of from a formal grant of immunity. — Also termed informal immunity. [Cases: Criminal
Law 42. C.J.S. Criminal Law §§ 78–86.]
testimonial immunity.Immunity from the use of the compelled testimony against the witness. • Any information derived from that testimony, however, is generally admissible against the witness. [Cases: Criminal Law 42; Witnesses 304. C.J.S. Criminal Law §§ 78–86; Witnesses § 555.]
“Testimonial immunity is a logical corollary to a person’s fifth amendment right not to ‘be compelled in any criminal case to be a witness against himself.’ It provides that when a witness is compelled to testify for any reason, his testimony cannot be used against him in a subsequent criminal proceeding. It also follows that the immunity is not available where the witness testifies voluntarily, and that the protection applies only in a subsequent criminal prosecution in which the witness is subject to prosecution for an offense related to his earlier testimony.” 2 Paul H. Robinson, Criminal Law Defenses § 205, at 482–83 (1984).
transactional immunity.Immunity from prosecution for any event or transaction described in the compelled testimony. • This is the broadest form of immunity. [Cases: Criminal Law 42.
C.J.S. Criminal Law §§ 78–86.]
use immunity.Immunity from the use of the compelled testimony (or any information derived from that testimony) in a future prosecution against the witness. • After granting use immunity, the government can still prosecute if it shows that its evidence comes from a legitimate independent source. — Also termed use/derivative-use immunity. [Cases: Criminal Law 42. C.J.S. Criminal
Law §§ 78–86.]
4. Freedom of a person against having a given legal relation altered by someone else’s act or omission.
[Blacks Law 8th]