SUING THE KING: State Sovereign Immunity And Tort Liability In All 50 States

Last Updated on

Ronald Reagan famously said, “The most terrifying words in the English language are: I’m from the government and I’m here to help.” Government has become almost synonymous with ineptitude. So it should be no surprise that every day people are injured, killed, or sustain property damage at the hands of careless government employees. Damages available to victims of negligence of state employees can be greatly limited and the hurdles they must clear in order to proceed in tort against a state government are formidable. Given the fact that there are more than 22 million federal, state, and local government employees in the U.S. who drive automobiles, operate equipment, fly planes, build and maintain roads, and spray chemicals in the course and scope of their employment, the chances of getting injured or sustaining property damage from one of them is extraordinarily high. This article discusses the changing face of liability of state governments and state employees and the remedies available to victims of government torts and their subrogated insurance companies. The liability of local government entities and political subdivisions will not be discussed in this article. However, a detailed chart covering the law of immunity and liability of municipal, county, and local government in all 50 states can be found HERE.

Sovereign or governmental immunity concern themselves with the various legal doctrines or statutes that provide federal, state, or local governments immunity from tort-based claims, as well as exceptions to or waivers of that immunity. Generally, a state government is immune from tort suits by individuals under the doctrine of sovereign immunity. Local governments, municipalities, and political subdivisions of the state are immune from tort suits by virtue of governmental immunity, because the state grants them immunity, usually in its Constitution. This article and its accompanying chart deal with state governmental immunity and liability. It should be noted that lawsuits against states, their officers, and employees are frequently asserted under federal law, e.g., 42 U.S.C. § 1983 or other similar statutes. This article and the 50 state chart to which it links to only deals with the separate body of law governing state law tort claims against state governments. It does not cover federal claims under the Federal Tort Claims Act (FTCA) (28 U.S.C. § 2674) or claims of negligence against municipal, county, or local government entities.

Sovereign Immunity Generally

The doctrine of sovereign immunity for both state and federal governmental entities traces its English common law origins to the notion that the king made the laws, and thus the “king” could do no wrong. Therefore, there could be no valid suit against a government entity. This doctrine made its way to the U.S. in the early 1800s and was soon adopted by nearly every state. At common law, individual government employees did not enjoy the same immunity as their employer. However, the enjoyment of sovereign immunity was limited to government bodies that were truly “sovereign,” namely the U.S. federal government and each state government. This presumed immunity was based on the belief that governments would be paralyzed if they faced potential liability for all actions of their employees.

A compromise doctrine subsequently developed at common law, whereby government officers could be held liable for the negligent performance of ministerial functions (operational acts involving carrying out policies), but not for discretionary functions (those involving policy setting and decision making). Restatement (Second) of Torts § 895D (1965). Immunity from liability for discretionary acts developed as an extension of the immunity afforded judicial officers to similarly shield legislative and administrative officials. The definition and application of the two types of functions evolved over time, causing confusion and uncertainty. Whenever suit was brought against an individual government employee because of his official conduct, the court had to consider the practical effects of liability and make a value judgment between the social and individual benefit from compensation to the victim, together with the wholesome deterrence of official excess on one hand; and on the other, the evils that would flow from inhibiting courageous and independent official action, and deterring responsible citizens from entering public life. Each state evolved differently with regard to its grant of sovereign immunity and the exceptions to immunity it provided.

Sovereign immunity today has been limited or eliminated, at least in part, in most jurisdictions by either legislative or judicial action. In many jurisdictions, government officials still enjoy immunity from liability in connection with the performance of their discretionary or governmental functions and acts. On the other hand, liability arising out of the negligent performance of a proprietary or ministerial act by a governmental official is not granted immunity. The degree of governmental immunity varies from state to state, but is usually contained either in a statutory framework (such as a Tort Claims Act) or within judicial and case decisions. Excluded from the doctrine are cities and municipalities, which are considered to be mere creatures of the legislature, and which have no inherent power and must exercise delegated power strictly within the limitations prescribed by the state legislature. As such, by default, municipalities are liable for their actions unless shielded by state law.

Today, many state Tort Claims Acts are modeled after the FTCA and constitute a statutory general waiver of sovereign immunity allowing tort claims against the state, with certain exceptions, or reenact immunity with limited waivers that apply only to certain types of claims. Some of these acts are called, “Tort Claims Acts” but many others are given different names. State Claims Acts (as opposed to Tort Claims Acts) are another type of statute that limit immunity and establish a procedure for bringing claims against a state government.

State laws may provide for “discretionary function” exceptions to state liability (a discretionary function exception retains state immunity for essential governmental functions that require the exercise of discretion or judgment, such as planning or policy level decisions). These “discretionary functions” are distinguished from “ministerial” or “operational” functions that involve only the execution of policies and set tasks. A state may also employ a “misrepresentation exception” to state liability (a misrepresentation exception means immunity still applies in certain cases of governmental failure to communicate correct information).

These acts sometime establish a special court of claims, board or commission to determine such claims, and often limit damages or provide for certain exceptions to liability. Connecticut, Illinois, Kentucky, North Carolina, and Ohio use this approach.

Premises Liability

In cases involving premises liability, many states provide immunity or limit liability for premises defects. This is done by establishing a relatively low standard of care owed to those on government property, such as requiring that the government exercise that level of care which a private person would owe a licensee, instead of the “ordinary care” standard that has been adopted by most states for actions between private parties. In addition, some states create different standards of care depending on the type of defect at issue (“special defect” is an unusual danger which is more dangerous than most defects) and whether the injured party paid to use the property.

Operation of Motor Vehicle

Many states expressly provide for waiver of immunity for property damage, personal injury, or death caused by the wrongful act or omission or the negligence of a state employee acting within the scope of employment and arising out of the operation or use of a motor-driven vehicle or motor-driven equipment. This liability may even be extended to the operation of emergency vehicles, which are permitted to disregard traffic rules and the speed limit, provided it displays its lights and sirens while doing so. Even then, it must exercise “due regard” for the safety of the motoring public. Regrettably, this is not always done with the foreseeable result that innocent third parties at the wrong place at the wrong time are injured. Most states provide for a waiver of sovereign immunity for the negligent operation of governmental vehicles, but the burden is on the plaintiff to establish that the emergency vehicle exceeded the liberties given to it under state law by failing to exercise their emergency lights and siren and/or by disregarding the due regard for the safety of the public. Other states, like Alabama, strongly preserve sovereign immunity, even for motor vehicle accidents.

Highway Defect Statutes

Enacting highway defect statutes is another specific way of waiving the sovereign immunity of state transportation departments. This approach focuses on the potential liability of a state Department of Transportation, whereas a general waiver of sovereign immunity exposes a state to tort liability on any theory. For example, the highway defect statute established in Connecticut states:

Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge, or sidewalk which it is the duty of the commissioner of transportation to keep in repair…may bring a civil action. C.G.S.A. § 13a-144.

Since highway defect statutes are different from Tort Claims Acts, it must be determined whether a plaintiff’s claim is associated to a “road defect” statute or arises under the Tort Claims Act. Under a defect statue the question is whether the claimant’s injuries were actually caused from a defect that arose within the meaning of the statute. In other words, was the highway defect in itself defined to be the cause of liability? However, the focus with a Tort Claims Act is whether the injury was the result of a negligent act by a governmental entity. These differences are what separate a “highway defect statute” from a “Tort Claims Act”.

Notice Requirements

State Tort Claims Acts usually require that a certain type of notice be given to the governmental entity within a certain period of time and that it contains very specific information. Failure to provide sufficient notice can be fatal to an action against a governmental entity and it constitutes a complete bar to an action. These statutes usually specify that a plaintiff must provide the governmental entity with notice of the name and address of the plaintiff, date, place, and circumstances of the occurrence or transaction giving rise to the claim asserted, a general description of the injury, damage, or loss incurred, the name of the public entities or employees causing the injury, damage, or loss, and the specific amount of damages claimed (i.e., a “sum certain”). Many states require such notice to be submitted on a form that they provide or specify.

Monetary Limits or Caps

State laws often provide monetary damage limitations or “caps” on the amount of money that can be recovered from a governmental entity. At least 33 states’ Acts limit, or “cap” the monetary amount that may be recovered from a state, and at least 29 states (often in combination with a cap) prohibit a judgment against the state from including punitive or exemplary damages. Texas, for example provides a per person limit of $250,000 for claims against the state, a $100,000 limit for claims against local governments, and a $250,000 limit for claims against municipalities. The New Jersey Tort Claims Act, on the other hand, provides for a verbal threshold which states that, “No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.” Damage caps are often set between $100,000 and $1 million. Some states, such as Arkansas and California, have no damage caps.


Suits against the states must be brought in state court. The Eleventh Amendment to the U.S. Constitution limits private actions brought against states in federal court. It provides:

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any foreign state.

This Amendment prevents federal courts from exercising jurisdiction over state defendants. A federal court will not even hear the case if a state is the defendant. A state may not be sued in federal court by its own citizen or a citizen of another state, unless the state consents to jurisdiction. Eleventh Amendment immunity extends to suits filed against the state in state courts and before federal administrative agencies. Unless the state or the federal government creates an exception to the state’s sovereign immunity, the state is immune from being sued without consent by any citizen in federal courts, state courts, or before federal administrative agencies.


Victims of torts committed by state employees, as well as their health insurance companies, workers’ compensation insurance companies, auto insurance carriers, and other personal and commercial insurers subrogated to their rights, must be aware of the narrow and treacherous avenues of civil justice available to them. Strict notice of claim deadlines, damage caps, as well as complicated and arcane state Tort Claims Acts which must be carefully navigated, all work against the plaintiff and in favor of the negligent state employee. Knowing when and how you can recover can make the difference between a big damage recovery and no recovery at all.

A chart detailing the law of state tort liability and immunity in all 50 states can be found HERE. A chart detailing the liability and immunity of municipal, county, and local government in all 50 states, can be found HERE. These charts deal only with the separate body of laws governing claims against state and local governments and political subdivisions of a particular state. They do not cover tort claims against the U.S. federal government under the FTCA which is the subject of another MWL publication that can be found HERE.

If you have any questions regarding the subjection of governmental immunity and the liability of local government for torts committed by its employees or subrogation in general, please contact Gary Wickert at [email protected].

Gary L. Wickert

Gary L. Wickert is an insurance trial lawyer and partner with the law firm of Matthiesen, Wickert & Lehrer, S.C. Gary has nearly four decades of litigation experience and is regarded as one of the world’s leading experts on insurance subrogation. He is the author of several subrogation books and legal treatises and a national and international speaker and lecturer on subrogation and motivational topics.