Derivative Immunity: The Impact of Campbell-Ewald Co. V. Gomez

Abstract

INTRODUCTION|As the complexity of society grows, so will the demands on government. Consequently, government must rely on private entities to perform certain governmental services. The prudent use of private entities can improve efficiency and decrease the costs involved in delivering services. However, issues arise concerning liability when individuals or businesses are harmed by these private entities.|Traditionally, government is sovereignly immune from liability unless such immunity is waived. Though it is the prerogative of Congress to statutorily waive its sovereign immunity, it is the courts that have actually determined the extent of a sovereign's actual liability. Private entities naturally seek to utilize such immunity to decrease their risk of liability arising from civil actions. The general rule is that these private entities that contract with the government cannot claim immunity from tort liability. However, this general rule has an ever-growing number of exceptions.|These exceptions depend upon the type of claim and the function the contractor performs. The focus of this Article is on the common law exception first introduced in Yearsley v. W.A. Ross Construction Co. and recently examined in Campbell-Ewald Co. v. Gomez. What has been referred to as Yearsley or derivative immunity concerns those situations where a federal contractor who was performing a service, can claim immunity from liability. Although the United States Supreme Court has clarified what will be referred to in this Article as derivative immunity, many questions affecting the scope of this common law doctrine remain...