Chapter 5.3.1 Liability Associated with Discretionary Acts

Liability Associated with Discretionary Acts

A discretionary act is defined as a quasi-judicial act that requires the exercise of judgment in the development or implementation of public policy.  Discretionary acts are generally indicated by terms such as “may” or “can” or “discretion.”  Whether an act is discretionary depends on several factors: (1) the degree to which reason and judgment is required; (2) the nature of the official’s duties; (3) the extent to which policymaking is involved in the act; and (4) the likely policy consequences of withholding immunity. See Heins Implement Co. v. Mo. Hwy. & Trans. Comm’n, 859 S.W.2d 681, 695 (Mo. 1993).  Generally, a state official may not be held liable for injuries associated with discretionary acts under the doctrine of qualified immunity. Polk County v. Ellington, 702 S.E.2d 17 (Ga. Ct. App. 2010).