§ 101.0215.Liability of a Municipality

The governmental-proprietary distinction, and the Legislature settled it with a list.

A municipality is liable under this chapter for damages arising from its governmental functions — those enjoined on a municipality by law and given it by the state as part of the state's sovereignty, to be exercised in the interest of the general public. Thirty-six are enumerated, including police and fire protection, health and sanitation, street construction and maintenance, jails, hospitals, sewers, airports, waterworks, parks and zoos, libraries, ambulance service, traffic regulation, animal control, building codes and inspection, zoning and plat approval, and enforcement of land use restrictions.

Subsection (b) states the other half: the chapter does not apply to the liability of a municipality for damages arising from its proprietary functions — those a municipality may, in its discretion, perform in the interest of the inhabitants of the municipality. Three are named: operation and maintenance of a public utility, amusements owned and operated by the municipality, and any activity that is abnormally dangerous or ultrahazardous.

The consequence of the split runs opposite to intuition. A claim arising from a governmental function is governed by this chapter — and so is subject to its caps, its exclusions, and its six-month notice. A claim arising from a proprietary function is outside the chapter altogether, and the municipality is liable as a private business would be, without the caps.

Being outside the Act is therefore better for a claimant, not worse.

Subsection (c) resolves overlaps in favour of the list: the proprietary functions of a municipality do not include those governmental activities listed under Subsection (a). Where an activity appears on the enumerated list, it is governmental whatever else might be said of it.