Legal Memorandum: Statutory Immunity from Liability in LA

Issue: What dispositive motions may be available to further the a public employee’s defense for an act that occurred during the scope of their duty?

By statute, “[l]iability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties.”  La. Rev. Stat. § 9:2798.1 (2011).  This immunity, however, does not apply to acts that are “not reasonably related to the legitimate governmental objective for which the policymaking or discretionary power exists” or for intentional misconduct.  Id.  “Immunity from liability under these provisions for discretionary acts is essentially the same as the immunity conferred on the federal government by the exception in the Federal Tort Claims Act (FTCA).”  Hebert v. Adcock, 55 So. 3d 1007 (La. Ct. App. 3d Cir. 2011).  When applying § 9:2798.1,

[a] court must first consider whether the government employee had an element of choice.  “[T]he discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. In this event, the employee has no rightful option but to adhere to the directive.” If the employee had no discretion or choice as to appropriate conduct, there is no immunity.  When discretion is involved, the court must then determine whether that discretion is the kind which is shielded by the exception, that is, one grounded in social, economic or political policy.  If the action is not based on public policy, the government is liable for […]

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