A recent edition of the Birmingham News had separate articles about two incredibly tragic events. The first article discussed the event that’s been on everyone’s mind lately, the death of a child as a result of a fallen sign at the Birmingham Airport. The second article discussed a child molester who terrorized children and was given the opportunity to do so even though those in charge had reason to know what that something was not right and failed to take whatever steps were necessary to protect innocent children from becoming victims of this monster.
These two stories have two things in common. First, of course, both stories concern the most helpless of all victims: children. Second, both articles talk about how those who should be held responsible might not be due to something called immunity.
The law can be complicated. However, I tell my clients that civil law generally boils down to two questions: (1) did someone do something wrong; and (2) did that something wrong cause you to be damaged? If the answer to each of those questions is yes, then generally there’s a case. It’s a simple, common sense analysis, and it makes sense. If you hurt someone else, you should be responsible. Immunity takes that simple analysis and turns it on his head. If someone is immune, then even if he or she does something wrong and hurts someone else, then that person is not responsible, and the victim is simply out of luck.
So who is harmed by the concept of immunity? The victims, of course. Imagine being a parent and losing a child or learning that some monster molested your child. Then imagine being told that someone whose screw up led to that death or that molestation could get out of being held responsible. How would that make you feel?
Aside from the victims, who else is harmed by the concept of immunity? Everyone. The whole purpose of holding people responsible when they mess up is to encourage people to be careful. Knowing that there are consequences for your mistakes makes you much less inclined to make mistakes. It’s just like when you see a sign in a store that says “You break it, you buy it.” What’s your reaction when you see that sign? Probably, you think “I don’t want to have to pay for anything, so I’m going to be careful.” On the other hand, if someone is immune and not responsible for his or her mistakes, then what incentive is there to be careful? Put another way, would you be more comfortable being around someone who was responsible when he or she messed up or someone who could mess up without any consequences?
One of the main reasons why immunity exists is because governments are often immune since the money paid to victims would essentially come from taxpayers. This is a poor justification for immunity. Government entities have the opportunity to purchase liability insurance just like private businesses do. While the premiums for insurance would be paid for through tax revenue, this seems like a much more favorable result than leaving victims uncompensated. Imagine that someone is permanently injured as a result of the carelessness of a government employee. The victim will never be able to work again and can no longer support his or her family. Is it fairer that the victim’s family should lose everything due to the carelessness of someone else or would it be better if we had all contributed to liability insurance so the insurance company could fairly compensate the victim? That’s what insurance companies are for – to pay victims. Just because someone is a victim of a government employee rather than of a private company should not change the result.
Would the sign have still fallen even if the Airport were not immune? Would as many children have been molested were the school board not immune? We don’t know for sure, but there’s certainly a reasonable possibility. If our system of immunity in any way contributed to the victimization of a single child, how could anyone support that system?