CONTRACTS
Southern Next Posting 2.docx

6 in the past governmental immunity has prevented

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(6) In the past, governmental immunity has prevented liability, but that doctrine is rapidly disappearing from the law. When governmental immunity is abrogated the state is usu- ally deemed liable “in the same manner and to the same extent as a private individual under like circumstances.” See 28 U.S.C. § 2674 (Federal Tort Claim Act). Is this approach sensible in re- gard to the privilege of public necessity? Some jurisdictions have provided for compensation by statute. (7) Do the federal and state constitutional provisions against taking private property for public use without just compensation, have any application here? See, e.g ., Customer Co. v. City of Sacramento, 10 Cal.4th 368 (1995) (owner of convenience store substantially damaged by SWAT team attempting to flush out fugitive sought recovery under just compensation clause of California constitution) and Kelley v. Story County Sheriff, 611 N.W.2d 475 (Ia. 2000) (claim by owner of rental property for damage done by sheriff’s office while breaking in to make an arrest was not a taking of private property under Iowa Constitution but exercise of police power for which there could be no recovery). 190
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109 Minn. 456 Vincent v. Lake Erie Trans. Co. Supreme Court of Minnesota January 14, 1910 Action by R.C. Vincent and others against the Lake Erie Transportation Company. Verdict for plaintiffs. From an order denying a new trial, defendant appeals. O’BRIEN, J. [1] The steamship Reynolds, owned by the defendant, was for the purpose of discharging her cargo on November 27, 1905, moored to plaintiff's dock in Duluth. While the unloading of the boat was taking place a storm from the northeast developed, which at about 10 o'clock p. m., when the unloading was completed, had so grown in violence that the wind was then moving at 50 miles per hour and continued to increase during the night. There is some evidence that one, and perhaps two, boats were able to enter the harbor that night, but it is plain that navigation was practically suspended from the hour mentioned until the morning of the 29th, when the storm abated, and during that time no master would have been justified in attempting to navigate his vessel, if he could avoid doing so. After the discharge of the cargo the Reynolds signaled for a tug to tow her from the dock, but none could be obtained because of the severity of the storm. If the lines holding the ship to the dock had been cast off, she would doubtless have drifted away; but, instead, the lines were kept fast, and as soon as one parted or chafed it was replaced, some- times with a larger one. The vessel lay upon the outside of the dock, her bow to the east, the wind and waves striking her starboard quarter with such force that she was constantly being lifted and thrown against the dock, resulting in its damage, as found by the jury, to the amount of $500.
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