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MATTHIESEN, WICKERT & LEHRER, S.C.
Hartford, WI ❖ New Orleans, LA ❖ Orange County, CA
❖ Austin, TX ❖ Jacksonville, FL ❖ Boston, MA
Phone: (800) 637-9176
gwickert@mwl-law.com
www.mwl-law.com
STATE SOVEREIGN IMMUNITY AND TORT LIABILITY IN ALL 50 STATES
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. The terms “sovereign immunity” and “governmental immunity” are frequently conflated, but they are entirely different legal concepts.
Sovereign immunity protects the State and its divisions, including agencies, boards, hospitals, and universities; while “governmental immunity” technically only
protects political subdivisions of the State including cities, counties, towns, villages, and school districts. Throughout the country, case law has continually conflated
these two terms. For purposes of this chart we refer to both terms interchangeably.
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 chart deals 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 chart deals only 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), which is the
subject of another chart found HERE, or claims of negligence against municipal, county, or local governments, which is the subject of another chart found HERE.
Generally
The common law origins of sovereign immunity can be traced back to the notion that the king made the laws, and thus anything the king did was necessarily legal.
The doctrine was thought to pass through to the several states before the founding of this country. When the Constitution was drafted in 1787, Article III raised
questions about this principle by exposing states to suits from citizens of other states and foreign states. U.S. Const. Art. III, § 2 (“The judicial Power shall extend ... to
Controversies ... between a State and Citizens of another State ... and between a State ... and foreign States, Citizens or Subjects”). In 1793, the U.S. Supreme Court
dealt with precisely this issue in Chisholm v. Georgia and abolished the doctrine of sovereign immunity with respect to states. Chisolm v. Georgia, 2 U.S. 419 (1793)
(“the Constitution warrants a suit against a State, by an individual citizen of another State”). Several years later, in response to Chisholm, Congress proposed, and
three-fourths of the states ratified, the 11
th
Amendment, which reinstated states’ sovereign immunity, at least to the extent that Article III encroached upon it.
Therefore, there could be no valid suit against a government entity. By the early 1800s, this sovereign immunity was adopted by nearly every state. However, the
enjoyment of sovereign immunity is limited to government bodies that are 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. Sovereign
immunity today has been limited or eliminated, at least in part, in most jurisdictions by either legislative or judicial action.
Still undecided was the issue of whether a state could be sued by its own citizens. For more than 100 years, states enjoyed protection from lawsuits, and the Supreme
Court extended 11
th
Amendment protections to prohibit suits against a state by one of its citizens. Hans v. Louisiana, 134 U.S. 1 (1890). However, the doctrine began
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to weaken in 1908 when the Supreme Court ruled that sovereign immunity was not without exceptions and states could be sued for an unconstitutional action by the
state. Ex parte Young, 209 U.S. 123 (1908). In 1946, the federal government passed the Federal Tort Claims Act, which waived sovereign immunity for itself with
respect to torts. Federal Torts Claims Act, Pub. L. No. 79-601, ch. 753, 60 Stat. 842 (1946). Soon thereafter, state legislatures began to enact their own state tort
claims acts.
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. Today, in many states, Tort
Claims Acts waive subrogation legislatively. The state statutes waiving sovereign immunity are generally of three types: (1) absolute waivers; (2) limited waivers
applicable only to specific types of claims; and (3) general waivers subject to certain defined exceptions. The first type of statutory scheme simply abolishes state
immunity altogether. They usually include a blanket statement of state liability for the torts of governmental entities and employees. The second type of statute
maintains sovereign immunity overall but provides limited waivers of immunity for certain state acts. The third type provides a general waiver of sovereign immunity
but lists several specified exceptions.
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
doctrine of sovereign 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. 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 sometimes 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.
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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 containing very specific
information. Failure to provide sufficient notice can be fatal to an action against a governmental entity and constitute 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.
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Monetary Limits or Caps
State law often provides monetary damage limitations of “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 for damages that may be recovered from judgments against the 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. At least 33 states’ Acts limit, or “cap,” the monetary amount for damages that may be
recovered from judgments against the state, and at least 29 states (often in combination with a cap) prohibit a judgment against the state from including punitive or
exemplary damages.
Public Duty Doctrine
Separate and apart from the concepts of sovereign immunity and official immunity, some states adopt the Public Duty Doctrine. It can serve as an exception to
immunity in the performance of a governmental or discretionary act. The Public Duty Doctrine states that a public employee is not civilly liable for the breach of a
duty owed to the general public, rather than a particular individual. This Public Duty Doctrine is based on the absence of a duty to the particular individual, as
contrasted to the duty owed to the general public. This doctrine does not insulate a public employee from all liability, as he or she could still be found liable for a
breach of ministerial duties in which an injured party had a “special, direct, and distinctive interest.” See, e.g., Southers v. City of Farmington, 263 S.W.3d 603 (Mo.
2008). It is not an affirmative defense, but rather delineates the legal duty the defendant public employee owes the plaintiff. In effect, the applicability of the Public
Duty Doctrine negates the duty element required to prove negligence, such that there can be no cause of action for injuries sustained as the result of an alleged
breach of public duty to the community as a whole.
Federal Civil Rights Liability (42 U.S.C. § 1983)
The Federal Civil Rights Statute is the basis by which a state or local government employee can assert a civil rights claim. Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
The most common claims brought under § 1983 are for violation of constitutional rights, including:
• First Amendment rights of freedom of religion, speech, and press.
• Fourth Amendment protections against searches and seizures.
• Fifth Amendment protection from self-incrimination.
• Eighth Amendment protection against cruel and unusual punishment.
• Fourteenth Amendment protections against deprivations of life, liberty or property without due process.
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“Any citizen” can bring a § 1983 action against any person who, while acting “under color of state law” deprives the plaintiff of his or her constitutional rights and that
challenged conduct caused a constitutional violation. The “color of law” element is established where a public employee acts pursuant to his or her office or in his or
her official capacity.
Jurisdiction
Suits against the states must be brought in state court. The 11
th
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.
NOTE: This chart concerns itself with the immunity granted to and liability of individual state governments and their employees. Issues regarding the immunity granted
to and liability of “political subdivisions” (i.e., local government entities created by the states to help fulfill their obligations, including counties, cities, towns, villages,
and special districts such as school districts, water districts, park districts, and airport districts) are addressed in our sister chart entitled “Municipal/County/Local
Governmental Immunity and Tort Liability In All 50 States found HERE.”
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TORT CLAIMS ACT
(None or Citation)
NOTICE DEADLINES
CLAIMS/ACTIONS ALLOWED
COMMENTS/EXCEPTIONS
DAMAGE CAPS
No Tort Claims Act.
Alabama distinguishes
between liability of the
State and liability of State
employees in their
individual capacity (State-
agent liability).
Alabama enjoys strong
sovereign immunity
(known as “State-agent
immunity”). It is almost
invincible. Hutchinson v.
Bd. of Trs. of Univ. of Ala.,
256 So.2d 281 (Ala. App.
1971).
It can never be made a
defendant in any court.
Ala. Const. Art. I, § 14. (“§
14”).
Alabama immunity is called
“State immunity”.
Individual State employee
immunity is called “State-
agent immunity.”
None
Individual State employees
have qualified immunity (State-
agent immunity) and can be
sued for conduct “contrary to
clearly established law” if not
acting in good faith. Issue is
whether a reasonable official
could have believed his or her
actions were lawful in light of
clearly established law. Ex
parte Sawyer, 876 So.2d 433
(Ala. 2003).
State employees whose
positions exist by virtue of
legislative pronouncement get
“State-agent immunity.”
Claims against State employees
who serve as constitutional
officers barred by full State
immunity.
Burden-shifting process. State
employee must show that
action was subject to
immunity. Then burden shifts
to plaintiff to show exception.
Ex parte Estate of Reynolds,
946 So.2d (Ala. 2006) (e.g.,
employee on personal errand
at time of accident).
Operating a vehicle in scope of employment
is protected. State-agent immunity protects
State employees when formulating plans,
exercising judgment, or discharging duties
(including driving a vehicle), unless:
(1) When the U.S. or Alabama Constitutions
or state law require otherwise; or
(2) Where State agent acts “willfully,
maliciously, fraudulently, in bad faith,
beyond his or her authority, or under a
mistaken interpretation of the law.”*
Ex parte Cranman, 792 So.2d 392 (Ala.2000);
Parker v. Amerson, 519 So.2d 442 (Ala.
1987).
*Police given Peace Officer Immunity under
§ 6-5-338(a) for “discretionary acts.” Two-
prong test:
(1) defendant must prove discretionary
function; and
(2) burden then shifts to plaintiff to show
bad faith/malice/willfulness.
Hollis v. City of Brighton, 950 So.2d 300 (Ala.
2006).
Liability insurance covering State employees
for wrongful acts is required. Ala. Code § 36-
1.6.1.
None
The damage caps
found in Ala. Stat. §§
11-93-1 to 11-95-3 do
not apply to actions
against State.
No punitive damages
against the State.
Ala. Stat. § 6-11-26.
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TORT CLAIMS ACT
(None or Citation)
NOTICE DEADLINES
CLAIMS/ACTIONS ALLOWED
COMMENTS/EXCEPTIONS
DAMAGE CAPS
Actions Where State Is a
Party.
Alaska Stat. §§ 09.50.250-
.300 (1962).
Abolished sovereign
immunity and made State
liable for its torts, with
limited exceptions,
including discretionary
functions.
“The legislature shall
establish procedures
for suits against the
State.” Article II, § 21
of Alaska Constitution.
Claims against peace
officers shall be made
within two years after
the cause of action.
Alaska Stat. §
09.10.070.
The doctrine of sovereign
immunity allows any person or
corporation having a tort claim
to bring action against the
State. Alaska Stat. § 09.50.250.
Failure to remove natural
accumulation of ice and snow
on state highways. State v.
Abbott, 498 P.2d 712 (Alaska
1972).
Operating motor vehicle.
Rutherford v. State, 605 P.2d 16
(Alaska 1979).
Failure to provide sign warning
bicyclists of hazardous railroad
crossing. Guerrero ex rel.
Guerrero v. Alaska Hous. Fin.
Corp., 123 P.3d 966 (Alaska
2005).
A tort claim may not be brought when the
claim is an action for a tort based upon an
act or omission of a State employee in the
execution of a statute or regulation or
performance or failure to perform a
discretionary function or duty. Alaska Stat. §
09.50.250.
Discretionary acts or functions for which
State has immunity from tort liability are
only those acts or functions occurring at
planning level, as opposed to operational
level; planning decision is one that involves
policy formation, whereas operational
decision involves policy execution or
implementation. State, Dep’t of Transp. &
Pub. Facilities v. Sanders, 944 P.2d 453
(Alaska 1997).
See Alaska Stat. § 09.50.250 for other
exceptions.
Damages awarded by
a court for all claims
arising out of a single
injury or death may
not exceed $400,000.
Alaska Stat. §
09.17.010.
No punitive damages
against the State.
Alaska Stat. §
09.50.280.
Actions Against Public
Entities or Public
Employees Act.
Public entities are granted
absolute immunity for the
exercise of a judicial,
legislative, or discretionary
function. A.R.S. § 12-
820.01 (1984).
All actions against
public entities or
public employees shall
be brought within one
year after the cause of
action. A.R.S. § 12-
821.
Claims against the
State shall be filled
within 180 days after
the action occurs.
A.R.S. § 12-821.01.
A public entity is not liable for
losses that arise out of an act
or omission determined to be a
criminal felony by a public
employee unless the public
entity knew of the employee’s
propensity for that action.
This subsection does not apply
to acts or omissions arising out
of the operation or use of a
motor vehicle. A.R.S. § 12-
820.05.
If absent proof of a public employee’s gross
negligence or intent to cause injury, public
entities have qualified immunity for:
(1) The failure to make an arrest or to retain
an arrested person;
(2) An injury to the driver of a vehicle that is
caused by a violation by another driver; and
(3) Preventing the sale of a handgun to a
person who may lawfully possess a handgun,
etc.
See A.R.S. § 12-820.02 for other exceptions.
None
No law shall limit the
amount of damages
to be recovered for
causing the death or
injury of any person.
Ariz. Const. Art. II, §
31.
No punitive damages
against the State.
A.R.S. § 12-820.04.
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TORT CLAIMS ACT
(None or Citation)
NOTICE DEADLINES
CLAIMS/ACTIONS ALLOWED
COMMENTS/EXCEPTIONS
DAMAGE CAPS
No Tort Claims Act.
Arkansas shall never be
made a defendant in any
of her courts. (applies only
to state). Ark. Const. Art. V,
§ 20.
The Arkansas State Claims
Commission shall have
exclusive jurisdiction over
all claims against the State
of Arkansas and its several
agencies. A.C.A. § 19-10-
204.
Claim must be filed
with the Director of
the Arkansas State
Claims Commission
within the period
allowed by law for the
same type of claim
against a private
person. A.C.A. § 19-10-
209.
The State’s sovereign immunity
is waived when:
(1) the State is the moving
party seeking relief;
(2) an act of the legislature
creates a specific waiver of
immunity; and
(3) where a State agency’s
actions are illegal, or when a
public employee refuses to do
a ministerial act required by
statute.
State Office of Child Support
Enf’t v. Mitchell, 954 S.W.2d
907 (1997); Travelers Cas. &
Sur. Co. of Am. v. Arkansas
State Highway Comm’n, 120
S.W.3d 50 (2003).
Few exceptions to immunity granted by
Arkansas’ Constitution.
State officials are not immune to the extent
that they are covered by liability insurance.
A.C.A. § 19-10-305.
Arkansas requires all political subdivisions to
carry the minimum amounts of motor
vehicle liability coverage. Therefore, in the
case of a car accident, all political
subdivisions may be held liable up to the
minimum limits. A.C.A. § 21-9-303.
None
No punitive damages
against the State.
A.C.A. § 21-9-203.
California Tort Claims Act.
Except as otherwise
provided by statute, public
entities are not liable for
an injury, arising from an
act or omission of the
public entity or their
employee. Cal. Gov’t Code
§ 815.
Numerous immunities
provided. Cal. Gov’t Code
§§ 815 - 996.6 (1963).
Public employee liable for
injury to the same extent
as a private person. Cal.
Gov’t Code § 815.
Personal injury/
property claim within
six months after
accrual of the cause of
action. All other claims
shall be presented
within one year. Cal.
Gov’t Code § 911.2.
State Board of Control
Gov’t Claims Branch,
P.O. Box 3035
Sacramento, CA
95812-3035.
Board must respond
within 45 days. Then
six (6) months to file
suit
A public entity (e.g., state) is
liable for injuries proximately
caused by their employee’s
acts or omissions except when
that employee is immune from
liability. Cal. Gov’t Code §
815.2.
A public entity is liable for
death or injury proximately
caused by a negligent or
wrongful act or omission in the
operation of any motor vehicle
by a public employee acting
within the scope of his
employment. Cal. Veh. Code §
17001.
A public employee is not liable for an injury
resulting from his act or omission where the
act or omission was the result of a
discretionary act. Cal. Gov’t Code § 820.2.
Public entities are not liable for injuries
caused by misrepresentation. Cal. Gov’t
Code § 818.8.
Public entities are not liable for an injury
caused by adopting or failing to adopt an
enactment or by failing to enforce any law.
Cal. Gov’t Code § 818.2.
None
No punitive damages
against the State. Cal.
Gov’t Code § 818.
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TORT CLAIMS ACT
(None or Citation)
NOTICE DEADLINES
CLAIMS/ACTIONS ALLOWED
COMMENTS/EXCEPTIONS
DAMAGE CAPS
Colorado Governmental
Immunity Act.
C.R.S. §§ 24-10-101
through 24-10-120.
A public entity is immune
from liability in all tort
claims for injury except as
otherwise provided.
C.R.S. §§ 24-10-101 – 120
(1971).
Claims against the
State shall be filed
within 182 days of the
injury. C.R.S. § 24-10-
109.
File with Atty General.
File suit after denial or
90 days has passed.
C.R.S. § 24-10-109(6).
Use Statute of
Limitations for that
type of action. C.R.S. §
24-10-109(5).
The Colorado Governmental
Immunity Act generally bars
action against the State and
public entities for tort claims.
Medina v. State, 35 P.3d 443
(Colo. 2001).
A public entity, by resolution,
may waive immunity. C.R.S. §
24-10-104.
Immunity is waived for claims resulting from:
(1) The operation of a vehicle owned by a
public entity used in the scope of
employment, except emergency vehicles;
(2) The operation of public hospital,
correctional facility, or jail;
(3) The dangerous condition of public
housing;
(4) The dangerous condition of a public
roadway; and
(5) The operation and maintenance of public
facilities.
C.R.S. § 24-10-106.
$350,000 Per Person
$900,000 per
occurrence, with no
one person receiving
more than $350,000.
No punitive damages
against the State.
C.R.S. § 24-10-114.
WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 10 Last Updated 1/13/22
TORT CLAIMS ACT
(None or Citation)
NOTICE DEADLINES
CLAIMS/ACTIONS ALLOWED
COMMENTS/EXCEPTIONS
DAMAGE CAPS
Claims Against The State.
No State officer or
employee shall be
personally liable for
damage or injury, not
wanton, reckless or
malicious, caused within
the scope of his or her
employment or duties.
C.G.S.A. § 4-165 (1959).
Claims against the
State shall be
presented within one
year after it accrues.
C.G.S.A. § 4-148.
General Assembly
may, through special
act, authorize a person
to present a claim
after one year if:
(1) just and equitable;
and
(2) express finding of
compelling equitable
circumstances that
would serve a public
purpose.
Claims for injuries
resulting from
defective highways,
sidewalks, roads, or
bridges must be
brought within two (2)
years and notice
within ninety (90)
days. Inaccuracy in
notice will preclude
recovery. C.G.S.A. §§
13a-149, 13a-144.
Connecticut’s doctrine of
sovereign immunity does not
allow the State to be sued
without its consent.
The Claims Commissioner was
created to process claims and
grant consent for claims against
the State. C.G.S.A. §§ 4-142 and
4-160.
Commissioner can approve the
immediate payment of “just
claims” not exceeding $7,500.
“Just claims” are those that in
equity and justice the State
should pay, as long as it caused
the damage or injury. C.G.S.A.
§§ 4-141, 158.
Suits can be brought against
state for defective or poorly
maintained highways, bridges,
and sidewalks. Not limited to
roads within the state highway
system, but no liability for
sidewalks maintained by a
municipality. Government must
have actual or constructive
notice. C.G.S.A. § 13a-144.
There are certain claims which may be
brought directly against the State:
(1) Any person injured through the
negligence of any State official or employee
when operating a motor vehicle owned and
insured by the State shall have a claim
against the State. C.G.S.A. § 52-556 (not
subrogation claims);
(2) Claims for the periodic payment of
disability, pension, retirement or other
employment benefits;
(3) Claims upon which suit otherwise is
authorized by law (injured by defective
bridge/road. C.G.S.A. § 13a-144) (not
subrogation claims); and
(4) Claims for which an administrative
hearing procedure otherwise is established
by law.
NOTE: Subrogation claims under C.G.S.A. §
52-556 and § 13a-144 may not be brought
by subrogated carrier because they are not a
“person”.
Nationwide Gen. Ins. Co. v. Colon, 2016 WL
3391622 (Conn. Super. 2016).
None
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Delaware Tort Claims Act.
No claim shall arise against
the State, public officer/
employee if the act/
omission:
(1) arose out of an official
duty requiring discretion;
(2) was done in good faith
and for the best interest of
the State; and
(3) was done without gross
negligence.
Del. Code tit. 10, § 4001-
4005 (1978).
None
Bringing a tort claim against the
State requires a party to prove
that the action is not precluded
by the State Tort Claims Act or
the doctrine of sovereign
immunity. Marvel v. Prison
Indus., 884 A.2d 1065 (Del.
Super. 2005).
Sovereign Immunity is waived where
insurance coverage exists by statute. Del.
Code tit. 18, § 6511.
Where a State officer/employee is negligent
in performing routine functions, they may be
held personally liable. This includes motor
vehicle accidents. Simon v. Heald, 359 A.2d
666 (Del. Super. 1976).
None
Claims Against District.
The Mayor of the District
of Columbia is empowered
to settle, in his discretion,
claims against D.C. D.C.
Code Ann. § 2-401 through
§ 2-416 (1929).
An action for
unliquidated damages
to person or property
must be made by hand
delivery or U.S. mail
within six months in
writing to the Mayor,
stating the time, place,
cause, and
circumstances of the
injury or damage. D.C.
Code Ann. § 12-309.
D.C. shall not be immune for a
claim resulting from a State
employee acting within their
scope of employment
negligently operates a motor
vehicle. D.C. Code Ann. § 2-412.
Pothole accidents, fallen trees,
damage caused by D.C.
government, its property, or its
employees.
A discretionary governmental function of
D.C. is immune from suit. The test to
determine if an action is discretionary is
whether that function poses a threat to the
quality and efficiency of government if
liability is imposed on the negligent act or
omission. Shifrin v. Wilson, 412 F. Supp. 1282
(D.D.C. 1976).
None
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Florida’s Sovereign
Immunity Statute.
Government entities may
be liable for damages
resulting from negligent or
wrongful action of public
employees in the scope of
their employment if a
private person would be
liable in similar
circumstances. F.S.A. §
768.28(1) (1973).
An action may not be
brought against the
State or one of its
agencies unless
claimant presents the
claim within three
years after such claim
accrues.
For wrongful death
claim, it must be
presented within two
years.
F.S.A. § 768.28 (6)(a).
Operational functions, such as
negligently driving a motor
vehicle, are not covered within
the discretionary act exception.
Kaisner v. Kolb, 543 So.2d 732
(Fla. 1989).
Public duty exception. A governmental entity
is not liable for a tort caused by the
breaching of a duty owed to the public at
large. Lewis v. City of St. Petersburg, 98 F.
Supp.2d 1344 (M.D. Fla. 2000) aff’d in part,
rev’d in part, 260 F.3d 1260 (11
th
Cir. 2001).
Discretionary Function Exception. A
governmental agency is immune from tort
liability based upon actions that involve
discretionary functions. Cook ex rel. Estate of
Tessier v. Sheriff of Monroe County, Fla., 402
F.3d 1092 (11
th
Cir. 2005).
The State shall not be
liable to pay a claim
to any one person
which exceeds the
sum of $200,000 or
$300,000 for any
claim arising out of
the same incident or
occurrence. F.S.A. §
768.28 (5).
No punitive damages
against the State.
F.S.A. § 768.28 (5).
Georgia Tort Claims Act.
Sovereign immunity is
waived for torts of State
officers and employees
while acting within the
scope of their employment
and shall be liable for such
torts in the same manner
as a private individual
would be liable under like
circumstances. O.C.G.A. §§
50-21-20, 50-21-37 (1992).
Written notice of a
claim shall be given
within twelve (12)
months of the date
the loss. O.C.G.A. § 50-
21-26.
The State is subject to liability
for its employee’s negligence
when operating a motor
vehicle if the damage was not
caused from a method of
providing police protection.
Georgia Dep’t of Pub. Safety v.
Davis, 285 Ga. 203, 676 S.E.2d
1 (2009).
Georgia does not waive immunity for losses
arising from:
(1) an act or omission by a State employee
exercising due care in the execution of a
statute, regulation, or rule;
(2) the exercise or the failure to exercise a
discretionary function;
(3) the collection of any tax;
(4) legislative or judicial action; and
(5) methods of providing law enforcement.
See O.C.G.A. § 50-21-24 for other
exceptions.
Except as provided,
Georgia is not liable
for damages
exceeding $1 million
for single occurrence
and the State’s
liability per
occurrence shall not
exceed $3 million.
O.C.G.A. § 50-21-29.
No punitive damages
against the State.
O.C.G.A. § 50-21-30.
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Hawaii State Tort Liability
Act.
Haw. Stat. § 662-2 (1957).
Immunity waived for State
employees to the same
extent as private
individuals under similar
circumstances (“Private
Analog”) unless exception.
Cootey v. Sun Inv., Inc., 718
P.2d 1086 (Haw. 1986).
Claim for damage or
injury must be
presented to the State
within two (2) years of
when claim accrues.
Haw. Stat. § 662-4.
Medical tort claims
shall be presented
within six (6) years.
Haw. Stat. § 657-7.3.
As a no-fault state, no claim
arises against a liable State
employee for negligently
operating a motor vehicle until
the accident is deemed to be
“serious” (medical expenses
over $5,000, use of body part
permanent, in death). Property
claims allowed. Haw. Stat. §
431:10C-306; Savini v. Univ. of
Hawaii, 113 Haw. 459, 153 P.3d
1144 (2007).
Immunity also waived to extent
of insurance. Haw. Stat. §
661.11.
Hawaii does not waive immunity for any
claim arising from:
(1) An act or omission in the execution of a
statute or a discretionary duty;
(2) Any claim arising in the collection of any
tax; and
(3) Any claim arising out of assault, battery,
false imprisonment.
See Haw. Stat. § 662-15 for other
exceptions.
Non-economic
damages are capped
at $375,000. Haw.
Stat. § 663-8.7.
No punitive damages
against the State.
Haw. Stat. § 662-2.
Any judgment over $1
million against State
may be paid over five
years. Haw. Stat. §
657-24.
Idaho Tort Claims Act.
Every governmental entity
is subject to liability arising
out of its negligent or
otherwise wrongful acts or
omissions and those of its
employees acting within
the scope of employment
to the same extent a
private person would be
liable. Idaho Code § 6-903
(1976).
Tort claims against the
State shall be filed
with the Secretary of
State within 180 days
from when the claim
arose, and action must
commence within two
years. Idaho Code §§
6-905 and 6-911.
A governmental entity will be
held liable for the negligence of
their employees while driving a
motor vehicle as long as the
employee was driving while in
the scope of their employment
and no exceptions apply.
Teurlings v. Larson, 156 Idaho
65, 320 P.3d 1224 (2014).
Idaho and its employees while acting within
the scope of their employment and without
malice shall not be liable for:
(1) An act or omission in the execution of a
statute or a discretionary duty;
(2) Any claim arising out of assault, battery,
misrepresentation, false imprisonment; and
(3) Arises out of the collection of any tax or
fee.
See Idaho Code § 6-904; § 6-904 (a); and § 6-
904 (b) for other specific exceptions.
Idaho shall not be
liable for damages
from a single
occurrence exceeding
$500,000. This limit
does not apply if the
State has purchased
liability insurance in
excess or if the action
is caused by willful or
reckless conduct.
Idaho Code § 6-926.
No punitive damages
against the State.
Idaho Code § 6-918.
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State Lawsuit Immunity
Act.
745 I.L.C.S. § 5/1 (1972).
State is immune unless
legislative exception.
Court of Claims Act.
705 I.L.C.S. § 505/1.
All claims against the State
for damages in cases
sounding in tort, if like
cause of action would lie
against a private person or
corporation shall be heard
before the Court of Claims
(7 judges). 705 I.L.C.S. §
505/8.
Tort claims against the
State shall be filed
within two (2) years
from when the claim
arose. 705 I.L.C.S. §
505/22.
Tort claims made against the
State involving the negligent
operation of a State vehicle are
to be heard by the Court of
Claims and are not limited to
the $100,000 cap. 705 I.L.C.S. §
505/8(d).
Illinois State employees are immune from
liability if their act or omission is
discretionary in function. Michigan Ave. Nat.
Bank v. Cty. of Cook, 191 Ill.2d 493, 732
N.E.2d 528 (2000); Harinek v. 161 N. Clark St.
Ltd. P’ship, 692 N.E.2d 1177 (1998).
Discretionary acts of a local government and
its employees are entitled to absolute
immunity. Johnson v. Mers, 664 N.E.2d 668
(Ill. App. 1996). Discretionary acts are unique
to public office and require deliberation,
decision, or judgment. White v. Village of
Homewood, 673 N.E.2d 1092 (Ill. App. 1996).
Ministerial acts are generally performed in
prescribed manner in obedience to legal
authority. Snyder v. Curran Township, 657
N.E.2d 988 (Ill. 1995).
Claims for tort
damages are limited
to $100,000 if it does
not involve the
operation of a State
motor vehicle. 705
I.L.C.S. § 505/8.
If State-owned vehicle
operated by State
employee, no limit.
Indiana Tort Claims Act.
Governmental entity can
be subjected to liability for
their own tortious conduct
or conduct of their
employees acting within
the scope of employment,
unless the conduct is
within an immunity
granted by statute. I.C. §
34-13-3-3 (1973).
Claims against the
State are barred
unless Tort Claims
Notice is filed with
attorney general or
the state agency
involved within 270
days after the loss
occurs. I.C. § 34-13-3-
6.
Suit based on breach
of express or implied
contract must be filed
within ten (10) years.
Usual statutes of
limitation otherwise
apply. I.C. § 34-13-1-1.
The defense of sovereign
immunity is not available to the
State for the negligent
operation of its vehicles. State
v. Turner, 286 N.E.2d
697(1972); 3A Ind. Law Encyc.
Automobiles and Motor
Vehicles § 123.
There are several exceptions to Indiana’s
waiver of immunity including:
(1) discretionary functions*;
(2) the adoption and enforcement of or
failure to adopt and enforce a law; and
(3) the act or omission of anyone other than
the governmental entity or their employee.
See I.C. § 34-13-3-3 for more exceptions.
*“Planning/operational test” is used.
Immunity only if function characterized as
“policy decisions that have resulted from a
conscious balancing of risks and benefits
and/or weighing of priorities.” Peavler v. Bd.
of Comm’rs of Monroe Cty., 528 N.E.2d 40
(Ind. 1988).
Any contributory negligence remains a
complete defense to any claim under the
Tort Claims Act. I.C. § 34-51-2-2.
No punitive damages
against the State. I.C.
§ 34-13-3-4.
Indiana shall not be
liable for more than
$300,000 to a single
claimant (if before
1/1/06) or $500,000
(if after 1/1/06 and
before 1/1/08) or
$700,000 (if after
1/1/08) and for a
single occurrence,
liability shall not
exceed $5,000,000.
I.C. § 34-13-3-4.
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Iowa Tort Claims Act.
The State may be held
liable for its negligence and
the negligence of its
employees while acting
with the scope of
employment. I.C.A. §
669.5.
The State shall defend,
indemnify, and hold
harmless any employee,
against any claim so long
as the employee’s conduct
was not willful or
malicious. I.C.A. § 669.21
(1965).
Claims against the
State are barred
unless notice is
provided in writing
within two (2) years of
the claim. I.C.A. §
669.13.
Iowa shall be liable to the same
extent as a private individual
under like circumstances. I.C.A.
§ 669.4.
This includes the negligence of
the State or its employees
acting under the scope of
employment while operating a
motor vehicle. Swanger v.
State, 445 N.W.2d 344 (Iowa
1989); Starlin v. State, 450
N.W.2d 257 (Iowa Ct. App.
1989).
A governmental entity is entitled to
immunity only to the extent permitted by
statute. Walker v. State, 801 N.W.2d 548
(Iowa 2011).
Iowa retains immunity for claims arising out
of:
(1) acts or omissions of a State employee in
the execution of a statute;
(2) discretionary functions; and
(3) any claim arising out of assault, battery,
false imprisonment, misrepresentation.
See I.C. § 669.14 for more exceptions.
No punitive damages
against the State. I.C.
§ 669.4.
Kansas Tort Claims Act.
K.S.A. §§ 75-6101 - 75-
6120 (1979).
Governmental entity liable
for negligence unless
exception in Act. Harris v.
Werholtz, 260 P.3d 101
(Kan. Ct. App. 2011).
None.
One case stretches the
120-day notice
requirement for claims
against municipalities
to also apply for claims
against the State.
Christopher v. State ex
rel. Kansas Juvenile
Justice Auth., 143 P.3d
685 (2006).
Governmental entities shall be
liable for damages caused by a
negligent act or omission of any
of its employees while acting
within the scope of
employment under
circumstances where a private
person, would be liable. K.S.A.
§ 75-6103.
No liability for:
(1) legislative functions;
(2) judicial functions;
(3) failure to enforce a law;
(4) failure to exercise or perform a
discretionary function or duty on the part of
a governmental entity or employee.
See K.S.A. § 75-6104 for more exceptions.
“Discretionary function” means more than
use of judgment. Must involve element of
policy formation. Clark v. Thomas, 505
F.Supp.2d 884 (D. Kan. 2007).
State’s liability shall
not exceed $500,000
for claims arising out
of a single occurrence
or accident.
Governmental entity
or its employees
acting within the
scope of employment
shall not be liable for
punitive damages.
K.S.A. § 75-6105.
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Kentucky Board of Claims
Act.
The Board of Claims has
jurisdiction over civil
actions brought against the
Commonwealth, its
agencies, officers, and
employees, while acting
within the scope of their
employment. K.R.S. §§
44.070 and 44.072 (1986).
All claims must be
filed with the Board of
Claims within one (1)
year from the time the
claim for relief
accrued. K.R.S. §
44.110.
The Board is empowered “to
investigate, hear proof, and to
compensate persons for
damages sustained to either
person or property as a
proximate result of negligence
on the part of the
Commonwealth (includes
employees’ negligence in
operating a motor vehicle).
Johnson v. Kentucky State
Police, 2010 WL 2788156 (Ky.
Ct. App. 2010).
The Board of Claims does not
have jurisdiction over claims
made against State employees
in their individual capacity.
Spillman v. Beauchamp, 362
S.W.2d 33 (Ky. 1962).
The Board of Claims preserves sovereign
immunity for acts involving:
(1) discretionary acts or decisions;
(2) executive decisions;
(3) ministerial acts;
(4) actions in the performance of obligations
running to the public as a whole;
(5) governmental performance of a self-
imposed protective function to the public or
citizen; and
(6) administrative acts.
K.R.S. § 44.073.
Jurisdiction of the
Board is exclusive,
and a single claim
may not exceed
$200,000. If a single
act results in multiple
claims, the total
award may not
exceed $350,000,
equally divided
among the claimants,
but no one claimant
may receive more
than $200,000. K.R.S.
§ 44.070.
Louisiana Governmental
Claims Act.
La. R.S. §§ 13:5101- 5113
(1975).
The State, a State agency,
or a political subdivision
shall not be immune from
suit and liability for injury
to person or property. La.
Const. Art. XII, § 10.
Suit must be brought
in Louisiana State
Court. La. R.S. §
13:5106.
The notice deadline
for a suit against the
State is the equal to
the normal statute of
limitations for that
type of claim.La. R.S. §
13:5108.
In order for a State employee
to be a “covered individual”,
they must present the Attorney
General with a copy of the
complaint, who will then
determine whether the
individual was within their
scope of employment during
the cause of action. La. R.S. §
13:5108.1.
The State will be liable for the
negligent operation of a motor
vehicle by an employee or
officer done within the scope
of their employment. Fullilove
v. U.S. Cas. Co. of N.Y., 129
So.2d 816 (La. Ct. App. 1961);
La. Civ. Code. Art. 2317.
Liability shall not be imposed on public
entities or their officers or employees based
upon the exercise or the failure to exercise
their policymaking or discretionary acts
when such acts are within the scope of their
lawful powers and duties except for acts not
reasonably related to governmental
objectives and acts which constitute
criminal, fraudulent, or intentional
misconduct. La. R.S. § 9:2798.1.
$500,000 per person
for personal injury or
wrongful death. La.
R.S. § 13:5106(B).
Money for medical
care post-judgment
placed in reversionary
trust which goes back
to political subdivision
if not used. La. R.S. §
13:5106(B)(3).
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Maine Tort Claims Act.
M.R.S.A., Tit. 14, §§ 8101 –
8118 (1977).
Except as otherwise
provided in the statutes, all
governmental entities are
immune from suit on any
and all tort claims seeking
recovery of damages. If
immunity is removed by
the Tort Claims Act, a claim
for damages must be
brought subject to the
limitations contained in
the Act. M.R.S.A., Tit. 14, §
8103.
Every claim against a
governmental entity
or its employees is
forever barred unless
an action therein is
begun within two
years after the cause
of action accrues.
M.R.S.A., Tit. 14, §
8110.
Written notice shall be
filed within 180 days
after any claim or
cause. M.R.S.A., Tit.
14, § 8107.
A governmental entity is liable
for its negligent acts or
omissions in its ownership,
maintenance or operation of:
(1) motor vehicle;
(2) unimproved land; and
(3) land, buildings, structures,
facilities or equipment
designed for use primarily by
the public.
See M.R.S.A., Tit. 14, § 8104-A.
Except as otherwise expressly provided by
statute, all governmental entities shall be
immune from suit on any and all tort claims.
Me. Rev. Stat. Tit. 14, § 8103.
A governmental entity is not liable for any
claim which results from:
(1) legislative acts;
(2) judicial acts;
(3) discretionary acts (except if the act
involves operating a motor vehicle).
See M.R.S.A., Tit. 14, § 8104-B for more
exceptions.
$400,000 per single
occurrence. M.R.S.A.,
Tit. 14, § 8105.
Except as otherwise
provided, personal
liability of an
employee is limited to
$10,000 for any such
claims arising out of a
single occurrence.
M.R.S.A., Tit. 14, §
8104-D.
No judgment against
governmental entity
shall include punitive
damages. M.R.S.A.,
Tit. 14, § 8105.
Maryland Tort Claims Act.
Md. Code. Ann., State
Gov’t §§ 12-101 - 12-110.
The immunity of the State
and of its units is waived as
to a tort action, in a court
of the State.
Md. Code, State Gov’t §
12-104 (1984).
A claimant may not
institute an action
against the State
unless:
(1) the claimant
submits a written
claim to the Treasurer
within one year;
(2) the Treasurer or
designee denies the
claim; or
(3) the cause of action
is filed within three
years after it arises.
Md. Code, State Gov’t
§ 12-106.
Immunity of the State is waived
for tortious acts of State
personnel while acting within
the scope of public duties
which shall include, but not be
limited to:
(1) any authorized use of a
State-owned vehicle by State
personnel, including, but not
limited to, commuting to and
from the place of employment;
(2) services (defined by § 12-
101) to third parties performed
by State personnel in the
course of participation in an
approved clinical training or
academic program.
Md. Code, Cts. & Jud. Proc. § 5-
522.
Immunity of the State is not waived for any
tortious act or omission of State personnel
that:
(1) is not within the scope of the public
duties of the State personnel; or
(2) is made with malice or gross negligence.
Md. Code, Cts. & Jud. Proc. § 5-522.
The liability of the
State and its units
may not exceed
$400,000 to a single
claimant for injuries
arising from a single
incident or
occurrence.
Md. Code, State Gov’t
§ 12-104.
The State and its
officers and units are
not liable for punitive
damages.
Md. Code, Cts. & Jud.
Proc. § 5-522.
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Massachusetts Tort Claims
Act.
M.G.L.A. Ch. 258, § 2 to §
14 (1978).
Claim must be
presented in writing
within two years after
the date upon which
the cause of action
arose. M.G.L.A. Ch.
258, § 4.
State shall be liable for injury or
loss of property caused by the
negligent or wrongful act or
omission of any public
employee while acting within
the scope of employment, in
the same manner and to the
same extent as a private
individual under like
circumstances. M.G.L.A. Ch.
258, § 2.
The State shall not be liable for any claim
based upon an act or omission:
(1) in the execution of a statute;
(2) discretionary acts; or
(3) arising out of an intentional tort, assault,
libel, slander, or misrepresentation.
See other exceptions at M.G.L.A. 258, § 10.
Tort Claims Act is not to be construed
restrictively for motor vehicles. Cop driving
vehicle owned and registered to State,
caused accident while “on call.” Tort Claims
Act was ruled not to apply since cop was not
acting within scope of employment. Clickner
v. City of Lowell, 663 N.E.2d 852 (1996).
State not liable for
interest prior to
judgment or for
punitive damages.
Liability of the State
shall not exceed
$100,000. M.G.L.A.
Ch. 258, § 2.
Claims against the
Massachusetts Bay
Transportation
Authority are not
subject to the
$100,000 limit.
M.G.L.A. Ch. 258, § 2.
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(None or Citation)
NOTICE DEADLINES
CLAIMS/ACTIONS ALLOWED
COMMENTS/EXCEPTIONS
DAMAGE CAPS
Governmental Tort
Liability Act.
M.C.L.A. §§ 691.1401
through 1419 (1986).
Governmental agency
(including state) is immune
if engaged in a
governmental function
(activity mandated or
authorized by constitution,
statute, local charter or
ordinance, or other law).
M.C.L.A. §§ 691.1407(1).
Governmental immunity is
to be broadly construed,
unless a narrowly drawn
exception applies in a
claim. Nawrocki v Macomb
County Road Comm., 615
N.W.2d 702 (Mich. 2000).
Notice of claim must
be filed within 120
days and served on
the municipal
employee appointed
to accept service of
complaints, (extended
up to 180 days if
disability). Substantial
compliance is okay.
M.C.L.A. § 600.1404.
All claims must be
filed with the Clerk of
the Court of Claims
within one year after
such claim has
accrued. M.C.L.A. §
600.6431.
Court of Claims has
exclusive jurisdiction
over claims made
against the State.
M.C.L.A. § 600.6419.
The State is immune from tort
liability if engaged in the
exercise or discharge of a
governmental function. A State
employee will be immune from
tort liability if:
(1) acting or reasonably
believes they are acting within
the scope of employment;
(2) the governmental agency is
engaged in the exercise of a
governmental function; or
(3) does not involve gross
negligence or an intentional
act. M.C.L.A. § 691.1407.
Immunity does not apply when
engaged in a proprietary
function (any activity which is
conducted primarily for the
purpose of producing a
pecuniary profit for the
governmental agency). M.C.L.A.
§ 691.1413.
Specific exceptions to immunity:
(1) maintenance of public highways (knew or
should have known of defect), M.C.L.A. §
691.1402;
(2) negligent operation of a government-
owned motor vehicle,* M.C.L.A. § 691.1405;
(3) public building defects, M.C.L.A. §
691.1406;
(4) performance of proprietary functions by
government entities, M.C.L.A. § 691.1413;
(5) medical care or treatment provided to a
patient, M.C.L.A. § 691.1407(4); and
(6) sewage disposal system events, M.C.L.A.
§ 691.1417.
*Municipal employee’s personal liability
when driving his own vehicle or the
municipality’s vehicle is restricted to actions
found to be “grossly negligent.” Alex v.
Wildfong, 594 N.W.2d 469 (Mich. 1999).
None
Punitive damages are
generally not
recoverable unless
authorized by statute.
Casey v. Auto Owners
Ins. Co., 729 N.W.2d
277 (2006).
Minnesota Tort Claims
Act.
M.S.A. § 3.736 (1976).
Notice is required
within 180 days after
the alleged loss or
injury is discovered.
M.S.A. § 3.736.
State will pay for property
damage or personal injury
caused by an act or omission of
a State employee while acting
within scope of employment
under circumstances where the
State, if a private person,
would be liable to the claimant,
whether arising out of a
governmental or proprietary
function. M.S.A. § 3.736.
The State and its employees are not liable
for losses caused by:
(1) an act or omission of a state employee
exercising due care in the execution of a
statute or rule;
(2) discretionary functions; or
(3) conditions of highways or public
buildings, except if caused by employee
negligence.
See M.S.A. § 3.736 for other exclusions.
$500,000 per person;
$1,500,000 per
occurrence after July
1, 2009. M.S.A. §
3.736.
No punitive damages.
If liability insurance,
limits of insurance are
the maximum. M.S.A.
§ 3.736.
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COMMENTS/EXCEPTIONS
DAMAGE CAPS
Mississippi Tort Claims
Act.
M.C.A. §§ 11-46-1 through
11-46-23 (1984).
State waives immunity for
tort and contract claims,
subject to statutory
exceptions. M.C.A. § 11-
46-5.
Notice of claim must
be filed with chief
executive officer of
the governmental
entity at least 90 days
before instituting suit.
M.C.A. § 11-46-11(1).
Suit must be
commenced within
one (1) year after the
date of the tort.
M.C.A. § 11-46-11(3).
Bodily injury and
property claims must
be brought within
three (3) years after
injury is discovered.
M.C.A. § 11-15-49.
The immunity of the State and
its political subdivisions from
claims arising out of the torts of
such governmental entities and
the torts of their employees
while acting within the scope of
their employment is hereby
waived. M.C.A. § 11-46-5.
The State and its employees preserve their
immunity for claims caused by:
(1) a legislative or judicial action or inaction;
(2) an act or omission of a State employee
exercising due care in the execution of a
statute or rule;
(3) police/fire protection (unless reckless);
(4) discretionary function (official required to
use judgment or discretion).
See M.C.A. § 11-46-9 for other exceptions.
Immunity will not be granted to a State
employee when they negligently operate a
motor vehicle outside of a discretionary
function. Mixon v. Mississippi Dep’t of
Transp., 183 So.3d 90 (Miss. Ct. App. 2015).
The State’s liability
shall not exceed
$500,000 for all
claims arising out of a
single occurrence.
The State will not pay
punitive damages.
M.C.A. § 11-46-15.
Missouri Tort Claims Act.
Mo. Stat. §§ 537.600 -
537.650 (1978).
Tort immunity not waived.
Claims against the
State shall be brought
to the Commissioner
of Administration, for
approval, within two
years after such claim
accrues. Mo. Stat. §
33.120.
The immunity of the State is
waived in these instances:
(1) injuries resulting from State
employee’s negligent act or
omission while operating a
motor vehicle within the scope
of employment;
(2) injuries caused by the
dangerous condition of a State-
owned property; and
(3) Contract claims.
Mo. Stat. § 537.600; Kunzie v.
City of Olivette, 184 S.W.3d 570
(Mo. 2006).
The Commissioner of Administration and the
governing body of each political subdivision
of the State may purchase liability insurance
for tort claims, made against the State or the
political subdivision.
Immunity is waived up to the extent of the
coverage provided in the policy or self-
insurance plan.
Mo. Stat. § 537.610.
Claims shall not
exceed $2,000,000 for
claims arising out of a
single occurrence and
shall not exceed
$300,000 for any one
person in a single
accident or
occurrence.
The State will not pay
punitive damages.
Mo. Stat. § 537.610.
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Montana Tort Claims Act.
Mont. Stat. §§ 2-9-101
through 2-9-114 (1973).
Complaint must first
be presented in
writing to Department
of Administration. The
Department must
grant or deny the
claim within 120 days.
Upon receipt of the
claim, the statute of
limitations is tolled for
120 days.
Mont. Stat. § 2-9-301.
State is subject to liability for
its torts and those of its
employees acting within the
scope of employment or duties
whether arising out of a
governmental or proprietary
function. Mont. Stat. § 2-9-102.
The State shall not be liable for certain
legislative, judicial, and gubernatorial
actions. Mont. Stat. §§ 2-9-111 through 2-9-
113.
See Mont. Stat. § 2-9-108 for other
exceptions.
The State is not liable
for tort claims in
excess of $750,000
for each claim and
$1.5 million for each
occurrence. Mont.
Stat. § 2-9-108.
The State and other
governmental entities
are immune from
exemplary and
punitive damages.
Mont. Stat. § 2-9-105.
Nebraska Tort Claims Act.
Neb. Rev. Stat. §§ 81-8,209
- 81-8,239.11 (1969).
Claims shall be forever
barred unless the
claim is made in
writing to the Risk
Manager within two
years after such claim
accrued. Neb. Rev.
Stat. § 81-8,227.
The State shall be liable in the
same manner and to the same
extent as a private individual
under like circumstances. Neb.
Rev. Stat. § 81-8,215.
Injury to any innocent third
party proximately caused by
the action of a law
enforcement officer employed
by the State during vehicular
pursuit, damages shall be paid
to such third party by the State
employing the officer. Neb.
Rev. Stat. § 81-8,215.01.
The State does not waive its immunity for
claims involving:
(1) a discretionary function or due care in
the execution of a statute; or
(2) assault, battery, false imprisonment, or
misrepresentation.
See Neb. Rev. Stat. § 81-8,219 for other
exceptions.
None
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CLAIMS/ACTIONS ALLOWED
COMMENTS/EXCEPTIONS
DAMAGE CAPS
Nevada Tort Claims Act.
N.R.S. §§ 41.031 through
41.0337 (1965).
A claim must be filed
with the Attorney
General within two
years after the cause
of action accrues.
Filing a claim is not a
condition precedent to
bringing an action
against the State.
N.R.S. § 41.036.
Nevada hereby waives its
immunity from liability and
action and consents to have its
liability determined in
accordance with the same rules
of law as are applied to civil
actions against natural persons,
except as otherwise provided.
N.R.S. § 41.031.
No action may be brought against the State
or its employees which are based upon:
(1) an act or omission of an officer or
employee exercising due care, in the
execution of a statute, or in the performance
of a discretionary act;
(2) failure to inspect any building, structure,
vehicle, street, public highway or other
public work, to determine any hazards,
deficiencies or other matters, whether or
not there is a duty to inspect;
(3) an injury sustained from a public building
or public vehicle by a person who was
engaged in any criminal act.
N.R.S. § 41.032, § 41.033 and § 41.0334.
Damages against the
State may not exceed
the sum of $100,000.
The State will not pay
punitive damages.
N.R.S. § 41.035.
Claims Against the State.
N.H. Rev. Stat. §§ 541-B:1
to 541-B:23 (1985).
Sovereign immunity deeply
entrenched. Krzysztalowski
v. Fortin, 230 A.2d 750
(N.H. 1967).
Suit against State must
be commenced within
three years. Written
notice must be
presented to the
agency within 180
days of the injury. N.H.
Rev. Stat. § 541-B:14.
Claims made against
the State for less than
$5,000 are to be heard
by the Board of Claims
for the State. Any
claim against the State
in excess of $5,000
shall be heard by the
Superior Court.
State generally waives its
immunity to tort liability. N.H.
Rev. Stat. § 541-B:2, § 541-B:9,
§ 541-B:9-a.
Immunity also waived as to
contract liability. N.H. Rev. Stat.
§ 491:8.
A claim against the State for
the negligent use of a motor
vehicle is allowed since the
State has purchased insurance.
State v. Brosseau, 470 A.2d 869
(1983).
State does not waive its immunity for claims
involving:
(1) the exercise of a legislative or judicial
function;
(2) an act or omission of a State employee,
or official when exercising due care in the
execution of any statute;
(3) discretionary function (involves executive
or planning function); and
(4) an intentional tort, assault, libel, slander,
misrepresentation.
N.H. Rev. Stat. § 541-B:19.
All claims arising out
of single incident shall
be limited to an
award not to exceed
$475,000 per
claimant and
$3,750,000 per any
single incident, or the
proceeds from any
insurance policy,
whichever amount is
greater.
The State will not pay
punitive damages.
N.H. Rev. Stat. § 541-
B:14.
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DAMAGE CAPS
New Jersey Tort Claims
Act.
N.J.S.A. §§ 59:1-1 through
59:12-3 (1972).
“Public entity” includes all
counties, municipalities,
districts, and other political
subdivisions. N.J.S.A. §
59:1-3.
Immunity waived. A
“public entity” is liable for
injury caused by an act or
omission of a public
employee in the same
manner and to the same
extent as a private
individual unless there is
exception in Act. N.J.S.A. §
59:2-2.
A claim against a
“public entity” for
death or for injury or
damage to person or
to property shall be
presented not later
than the 90
th
day after
accrual of the cause of
action.
Six (6) months after
notice has been
received, suit may be
filed.
Suit must be filed
within two (2) years
after the date of
accrual.
N.J.S.A § 59:8-8.
Public entity liable for:
• Condition of property if
dangerous condition and
failure to take action
“palpably unreasonable.”
N.J.S.A. § 59:2-3.
• Sewer back up if
maintenance program was
palpably unreasonable or
negligence in performance.
• Ministerial or operational
functions.
Negligent operation of motor
vehicle. Gruschow v. New
Jersey State Highway Dep't,
152 A.2d 150 (N.J. App. 1959).
Limitations on liability:
• A discretionary function (involves policy
judgment or determining resources or
when or whether to purchase equipment,
construct or maintain facilities, hire
personnel or provide adequate services).
N.J.S.A. § 59:2-3.
• Adopting or failing to adopt a law or by
failing to enforce any law. N.J.S.A. § 59:2-
4.
• Failure to make an inspection, or negligent
inspection of any property. N.J.S.A. § 59:2-
6.
• Crime, actual fraud, actual malice, or
willful misconduct. N.J.S.A. § 59:2-10.
• Discretion in decision-making or
prioritizing needs when faced with
budgetary issues.
See N.J.S.A. § 59:2-5 for other exceptions.
No Dollar Caps
No subrogation
allowed against “a
public entity or public
employee.” N.J.S.A. §
59:9-2(e).
No recovery for pain
and suffering, but this
limitation on recovery
unless permanent
loss of bodily
function, permanent
disfigurement or
dismemberment
when medical
expenses are in
excess of $3,600.
Punitive damages
cannot be awarded.
N.J.S.A. § 59:9-2 (c)
and (d).
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COMMENTS/EXCEPTIONS
DAMAGE CAPS
Tort Claims Act.
N.M.R.A. §§ 41-4-1
through 41-4-30 (1976).
Written notice must
be provided within 90
days after the
occurrence. N.M.R.A.
§ 41-4-16.
Action against the
State must be brought
within two years after
the occurrence.
N.M.R.A. § 41-4-15.
Tort Claims Act shields the
State and public employees
from liability for torts except
when immunity is specifically
waived. N.M.R.A. §§ 41-4-1 and
41-4-4.
Exclusions to the Tort Claims Act include:
(1) negligence of public employees within
the scope of their duties in the operation or
maintenance of any motor vehicle, aircraft
or watercraft (N.M.R.A. § 41-4-5); and
(2) negligence of public employees within
the scope of their duties in the operation or
maintenance of any building, public park,
machinery, equipment or furnishings
(N.M.R.A. § 41-4-6).
See N.M.R.A. §§ 41-4-4 through 41-4-12 for
other exceptions.
Liability of State for a
single occurrence
shall not exceed:
(1) $200,000 for
damage to or
destruction of real
property;
(2) $300,000 for past
and future medical
expenses;
(3) $400,000 for all
damages other than
real property damage
and medical
expenses; and
(4) total liability for a
single occurrence
shall not exceed
$750,000.
State will not pay
punitive damages.
N.M.R.A. § 41-4-19.
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COMMENTS/EXCEPTIONS
DAMAGE CAPS
New York Court of Claims
Act.
N.Y. Ct. Cl. Act §§ 8 – 12
(1929).
State waives immunity and
consents to being sued in
the same manner as a
private person would, so
long as requirements of
the Court of Claims Act are
complied with.
Parallel statute deals with
Port Authority almost
identically.
N.Y. Unconsol. Law §§
7101 to 7112.
Written notice of
intention to file claim
must be filed and
served on Attorney
General within 90 days
(6 months for breach
of contract claims).
N.Y. Ct. Cl. Act § 10.
Specific requirements
for filing claim. N.Y. Ct.
Cl. Act § 11.
Court of Claims has
exclusive jurisdiction
over claims against
State but not city,
county or town.
State immune when
performing governmental act
(legislating, judging, or making
discretionary decisions) as
opposed to proprietary act (act
substitutes for or supplement
traditionally private
enterprises).
Proprietary acts include:
• Rents real property;
• Health care;
• Operating school; and
• Operating vehicle.
Morell v. Balasubramanian, 514
N.E.2d 1101 (1987).
If governmental act involved, no liability
even if there was malice or special duty
owed to plaintiff as opposed to mere public
duty (Public Duty Defense). Special duty
formed in three ways:
(1) Statute for class of persons;
(2) Assumption of duty toward person (most
common); and
(3) Assume direction and control in face of
known safety violation.
If ministerial act, plaintiff must still show a
special duty existed. McLean v. City of New
York, 905 N.E.2d 1167 (N.Y. App. 2009) (duty
trumps all else).
If governmental act and special duty exists,
no immunity if act was ministerial. If
discretionary, government must actually
have exercised its discretion to be immune.
None
No punitive damages
allowed.
Wang v. N.Y. State
Dep’t of Health, 933
N.Y.S.2d 503 (N.Y.
Sup. Ct. 2011).
North Carolina Tort Claims
Act.
N.C.G.S.A. § 143-291
(1951).
Claims against the
State must be filed
with Industrial
Accident Commission
within three (3) years
of the accident.
If death results, claim
must be filed within
two years by personal
representative of the
deceased.
N.C.G.S.A. § 143-299.
The Tort Claims Act covers all
claims arising as a result of the
negligence of any officer,
employee, involuntary servant,
or agent of the State while
acting within the scope of his
office, employment, service,
agency or authority. N.C.G.S.A.
§ 143-291.
Contributory negligence by the claimant bars
recovery under the State Tort Claims Act.
N.C.G.S.A. § 143-299.1; Oates v. N. Carolina
Dep’t of Motor Vehicles, 24 N.C. App. 690,
212 S.E.2d 33 (1975).
Intentional acts are not compensable. White
v. Trew, 366 N.C. 360, 736 S.E.2d 166 (2013).
Claims are brought before the Industrial
Commission, reviewable by Superior Court.
N.C.G.S.A. § 143-291.
Claim for Injury and
damage to any one
person capped at
$1,000,000 less any
commercial liability
insurance purchased
by the State that is
applicable to the
claim. N.C.G.S.A. §
143-299.2.
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COMMENTS/EXCEPTIONS
DAMAGE CAPS
Claims Against The State.
N.D.C.C. §§ 32-12.2-01 to
32-12.2-18 (1995).
Suit against State must
be commenced within
three years. N.D.C.C. §
32-12.2-02.
Written notice must
be presented in
writing to the Director
of the Office of
Management and
Budget within 180
days. N.D.C.C. § 32-
12.2-04.
State waives immunity for both
tort and contract claims. State
liable for an injury caused by:
(1) negligence of employee
acting within scope of
employment (including
operating motor vehicles); or
(2) use or condition of tangible
property, if employee would be
personally liable if a private
person would be liable under
the circumstances. N.D.C.C. §
32-12.2-02.
Employee cannot be personally
liable. This includes operation
of a motor vehicle. N.D.C.C. §
32-12.2-03.
N.D.C.C. § 32-12.2-02(3) lists claims for
which a State employee is not liable. (e.g.,
legislative, quasi-legislative, public duties,
collection of taxes, environmental
contamination, liability assumed under
contract except for rental vehicles, etc.).
Recovery limited to a
total of $250,000 per
person and
$1,000,000 for any
number of claims
arising from a single
occurrence and
prohibits punitive
damages in actions
against the State.
N.D.C.C. § 32-12.2-02.
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COMMENTS/EXCEPTIONS
DAMAGE CAPS
Court of Claims.
Ohio Rev. Code §§ 2743.01
- .03 (1985).
Court of Claims – Practice
and Procedure.
Ohio Rev. Code §§ 2743.11
to 2743.20.
Plaintiff must attempt
to have claim
compromised or
satisfied by the State’s
liability insurance.
If State does not
compromise within a
reasonable time (at
least 60 days) before
SOL expires, or if the
amount of the claim
exceeds the State’s
liability insurance
coverage, plaintiff may
commence an action.
Ohio Rev. Code Ann. §
2743.16(B).
Two (2) year statute of
limitations on actions
against State. Ohio
Rev. Code §
2743.16(A).
State waives immunity and
consents to be sued and have
its liability determined in the
Court of Claims by the same
rules as a suit between private
parties. Ohio Rev. Code §
2743.02(A)(1).
Claims allowed against State
for negligence operation of
motor vehicle driven by State
employee, even if driving own
personal vehicle. Ohio Rev.
Code § 2743.16(B).
State employee cannot be sued
personally unless not in scope
of employment.
No jury trial in Court of Claims. Ohio Rev.
Code § 2743.11; Loc.R. 6 of the Court of
Claims.
Settlements must be approved by Attorney
General and the Court of Claims. Ohio Rev.
Code § 2743.16.
State immune from liability for claims arising
out of the performance or nonperformance
of a public duty. Ohio Rev. Code §
2743.02(3)(a).
Subrogation claims not permitted. Ohio Rev.
Code § 2744.05(B).
No subrogation
claims. Damages
reduced by other
collateral source
recoveries received
by the claimant. Ohio
Rev. Code §
2743.02(D).
No Punitive Damages
State may, but is not
required to, insure its
employees for
operation of motor
vehicles.
Any such insurance
must be provided by
the Department of
Administrative
Services (DAS)
through the Office of
Risk Management
(ORM).
Ohio Rev. Code §
9.83.
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TORT CLAIMS ACT
(None or Citation)
NOTICE DEADLINES
CLAIMS/ACTIONS ALLOWED
COMMENTS/EXCEPTIONS
DAMAGE CAPS
Oklahoma Governmental
Tort Claims Act.
51 Okla. Stat. § 151 – 200
(1978).
51 Okla. Stat. § 152.1(A)
adopts sovereign
immunity.
51 Okla. Stat. § 152.1(B)
waives immunity as
provided in the Act.
Notice of claim within
one (1) year after loss.
51 Okla. Stat. § 156(B).
Notice filed CMRRR
with Risk Management
Administrator of the
Office of Public Affairs.
51 Okla. Stat. § 156(C).
Suit may be filed once
claim denied (deemed
denied if not approved
within 90 days).
Plaintiff has 180 days
after 90-day period to
file. 51 Okla. Stat. §
157.
State employee acting in scope
of employment is liable for loss
unless falls under exceptions
(General Waiver of Immunity).
51 Okla. Stat. § 152.1(A).
No subrogation claims allowed
against State. 51 Okla. Stat. §
155(28).
Liable for operation of motor
vehicles. However, liability
limited to amount of liability
insurance purchased. 51 Okla.
Stat. §§ 157.1-158.2.
Thirty-seven (37) exceptions where State not
liable for torts of State employees acting in
scope of employment:
(1) legislative functions;
(2) discretionary acts such as policy decisions
(limited). “Planning-operational” approach
to understanding the scope of this exception
to liability;
(3) natural snow or ice conditions;
(4) absence, condition, location or
malfunction of traffic sign unless not
corrected within reasonable time after
notice;
(5) subrogation claim; and
(6) any loss to person covered by workers’
compensation.
See 51 Okla. Stat. § 155 for more exceptions.
Property Claims:
$25,000.
Other Losses:
$175,000 per person.
($200,000 for medical
negligence). $1
million per
occurrence. 51 Okla.
Stat. § 154(A).
No punitive damages.
Several liability only.
51 Okla. Stat. § 154.
If insurance, policy
terms govern rights
and obligations of
State. 51 Okla. Stat. §
158.
No subro claims. Okla.
Stat. § 155(28).
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DAMAGE CAPS
Tort Actions Against Public
Bodies (a/k/a Oregon Tort
Claims Act).
O.R.S. §§ 30.260 - 30.300
(1967).
Action must be
commenced within
two (2) years. O.R.S. §
30.275(9).
Notice of claim to the
office of the Director
of the Oregon
Department of
Administrative
Services within 180
days.
No particular form for
notice. Provide time,
place, circumstances,
damages, contact
information. O.R.S. §
30.275.
Oregon Tort Claims Act is
limited waiver of sovereign
immunity.
Every public body subject to
liability for its employees’ and
agents’ torts committed within
the scope of their employment,
including operation of motor
vehicles.
O.R.S. § 30.275.
Exceptions to liability:
(1) injury covered by workers’
compensation;
(2) exercise of discretionary function* or
duty; and
(3) act under apparent authority of law.
O.R.S. § 30.265(6).
*Discretionary function is policy-making
decision (policy judgment). Negligent
implementation of policy is not immune. No
immunity if duty to act.
Personal Injury:
$2,073,600 Per
Person. $4,147,100
Per Occurrence.
Property Damage:
$113,400 Per Person.
$566,900 Per
Occurrence. O.R.S. §§
30.271(4), 30.272(4),
30.273(3).
Claims which are
subject to the OTCA
are not subject to
O.R.S. § 30.710,
setting limit of
$500,000 for non-
economic damages in
civil actions. O.R.S. §
30.269(2).
Pennsylvania Sovereign
Immunity Act.
42 Pa. C.S. § 8501, et seq.
(1988).
Commonwealth Court has
jurisdiction over civil
actions brought against the
“Commonwealth
government” with four
specific exceptions. 42 Pa.
C.S. § 761.
Notice of Intention to
Make Claim against
“Commonwealth
Party” must be made
within six months
after cause of action
accrued. 42 Pa. C.S. §
5522.
No notice needed
where “dangerous
condition” of real
estate, highways, and
sidewalks. Potholes
require actual written
notice and time to fix.
42 Pa. C.S. §
5522(a)(3).
Sovereign Immunity Act waives
Commonwealth immunity for
damages arising out of a
negligent act where the
damages would be recoverable
by private person. 42 Pa. C. S. §
8522(a). It includes:
(1) motor vehicle operation;
(2) medical profession;
(3) care, custody, control of
personal property;
(4) real estate, highways,
sidewalks;
(5) potholes and dangerous
conditions;
(6) control of animals; and
(7) vaccines.
Pa. C.S. § 8522(b).
Exceptions to sovereign immunity. Plaintiff
cannot recover under motor vehicle
exception if fleeing apprehension of resisting
arrest by a police officer. 42 Pa. C.S. §§
8522(b) and 8542(b).
No property damage recoverable under
potholes and dangerous conditions. 42 Pa.
C.S. § 8528(c)(5).
$250,000 Per Person.
$1,000,000 Per
Occurrence.
Can only recover:
(1) past and future
loss of earnings;
(2) pain and suffering;
(3) medical expenses;
(4) loss of consortium;
and
(5) property losses.
42 Pa. C.S. § 8528.
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Governmental Tort
Liability Act.
R.I.G.L. § 9-31-1 (1970).
State liable for all actions
of tort in the same manner
as a private individual or
corporation unless
exception. R.I.G.L. § 9-31-
1.
Three (3) year statute
of limitation for any
action against State.
R.I.G.L. § 9-1-25.
Notice of Claim must
be given within three
(3) years from the
date the cause of
action accrues. R.I.G.L.
§ 9-1-25.
State’s sovereign immunity as
to tort actions and its 11
th
Amendment immunity both
waived. Laird v. Chrysler, 460
A.2d 425 (R.I. 1983).
Does not apply to proceedings
against State before
administrative agencies.
There are few conditions on the State’s
consent to suit. Marrapese v. State, 500 F.
Supp. 1207 (D. R.I. 1980).
Damages may not
exceed $100,000.
R.I.G.L. § 9-31-2
(West).
Limit not applicable if
State was engaged in
a proprietary function
or has agreed to
indemnify the federal
government or any
agency. R.I.G.L. § 9-
31-3.
State must secure $75
million insurance
policy covering
operation of
commuter rail
service. R.I.G.L. § 9-
31-3.
South Carolina Tort Claims
Act.
S.C. Code § 15-78-10, et
seq. (1986).
Limited waiver of
sovereign immunity,
subject to exceptions.
State is liable for torts to
the same extent as private
individual, subject to
limitations. S.C. Code § 15-
78-40.
Two (2) year statute of
limitations; Three
years after Notice of
Claim (year added to
Statute of Limitations
if notice procedure
followed). S.C. Code §
15-78-110.
Notice setting forth
the circumstances,
extent of loss, time
and place, names of all
persons involved, and
amount of loss, must
be filed within one (1)
year. S.C. Code § 15-
78-80.
Sovereign immunity waived
(State liable) for all torts unless
listed under exceptions to
waiver of immunity.
Statute lists non-exclusive list of 40
exceptions to the general waiver of State
sovereign immunity, including, among
others:
(1) legislative, judicial actions;
(2) discretionary acts;
(3) natural snow or ice conditions;
(4) authorized entry on property;
(5) absence or condition of traffic sign or
barrier unless given reasonable notice to
repair;
(6) claim against DOT allowed for improper
maintenance but not faulty design; and
(7) any judicial proceeding.
S.C. Code § 15-78-60.
$300,000 Per Person
$600,000 Per
Occurrence
No Punitive Damages
S.C. Code § 15-78-
120.
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Remedies Against The
State.
S.D.C.L. §§ 21-32-1 to 21-
32-21 (1947).
South Dakota common law
and Constitution prohibit
that “governing acts” of
State, its agencies and
other public entities can’t
be attacked in court
without the State's
consent.
S.D. Const. Art. III, § 27;
Blue Fox Bar, Inc. v. City of
Yankton, 424 N.W.2d 915
(S.D. 1988).
Written notice of the
time, place, and cause
of the injury is given to
the public entity
within 180 days after
the injury. S.D.C.L. § 3-
21-2.
Whether a State employee,
who is sued in an individual
capacity, is entitled to
immunity depends upon the
function performed by the
employee. Immune
discretionary function (involves
policy-making power), but not
when they perform ministerial
function (“absolute, certain,
and imperative” act simple
carrying out of a policy already
established).*
Wulf v. Senst, 669 N.W.2d 135
(S.D. 2003).
*Even if discretionary function
involved: State may purchase
liability insurance. S.D.C.L. § 21-
32-15.
Purchase of insurance waives
immunity and is consent to be
sued. S.D.C.L. § 21-32-16.
State and its employees
immune except as provided in
§ 21-32-16; S.D.C.L. § 21-32-17.
Factors to be considered in determining a
discretionary function include:
(1) nature and importance;
(2) extent to which passing judgment on
exercise of discretion passes judgment on
branch of government;
(3) would liability impair free exercise of
discretion;
(4) likelihood of harm to members of public
if action taken;
(5) nature and seriousness of harm; and
(6) availability of other remedies.
Discretionary: Highway construction and
Maintenance; Allocating plows, resource and
equipment for snow removal.
Ministerial: Once it is determined that act
should be performed, subsequent
performance is ministerial. (e.g., operating
motor vehicle).
No immunity for breach of contract claims.
Masad v. Weber, 772 N.W.2d 144 (S.D.
2009).
S.D.C.L. § 21-32-1 establishes the Office of
Commissioner of Claims, which hears
contract and tort claims against the State.
None
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None applicable to the
State.
Tennessee Claims
Commission created to
hear and adjudicate claims
against State. T.C.A. §§ 9-
8-301 to 307 (1984).
Established State’s liability
in tort based on traditional
concepts of duty and
reasonably prudent
persons’ standard of care.
Act restricts State to the
defense of absolute
immunity only as an
exception to Act’s broad
abrogation of sovereign
immunity. Lucas v. State,
141 S.W.3d 121 (Tenn.
App. 2004).
Written notice of
claim must be filed (on
Claim For Damages
Form) with Division of
Claims Administration
(DCA) within
applicable statute of
limitations.
DCA has 90 days to
approve or deny. Then
that jurisdiction
transfers to Tennessee
Claims Commission.
T.C.A. § 9-8-402.
Claims Commission has
exclusive jurisdiction to hear
claims against State, it is
limited to those claims listed in
§ 9-8-307(a).
Common law negligence rules
apply.
Otherwise State is immune.
Claims allowed:
(1) operation of motor vehicle;
(2) nuisances;
(3) dangerous conditions on
real property (foreseeable and
notice);
(4) legal/medical malpractice;
(5) negligent care of persons or
property;
(6) negligent construction of
sidewalks/buildings;
(7) design and construction of
roads;
(8) highway conditions;
(9) negligent operation of
Machinery; and
(10) many others.
Purchase of liability insurance does not
waive sovereign immunity. 1984 Tenn. Pub.
Acts 972; Op. Tenn. Atty. Gen. 85-087
(1985).
Tennessee Governmental Tort Liability Act (§
9-8-307) not applicable to State. Lucas v.
State, 141 S.W.3d 121 (Tenn. App. 2004).
If State is liable, employee is immune, unless
outside scope of employment, intentional,
or done for personal gain. T.C.A. § 29-20-
310(b).
$300,000 for bodily
injury or death of any
one person in any one
accident, occurrence
or act. $700,000 for
bodily injury or death
of all persons in any
one accident. T.C.A. §
9-8-307(3)(e).
No Punitive Damages
Bowden Bldg. Corp. v.
Tennessee Real Estate
Comm'n, 15 S.W.3d
434, 446 (Tenn. App.
1999).
If claim exceeds
$25,000, Tennessee
Claims Administration
turns it over to State
Attorney General to
investigate.
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Texas Tort Claims Act
(TTCA).
Tex. Civ. Prac. & Rem. Code
Ann. §§ 101.001–.109
(1965).
Absent a waiver of
immunity, governmental
entities are generally
immune from liability.
University of Tex. Sw. Med.
Ctr. v. Estate of Arancibia,
324 S.W.3d 544 (Tex.
2010).
TTCA is a limited waiver of
sovereign immunity
(qualified immunity) for
certain torts.
Unless there is a waiver of
immunity in the TTCA,
there is sovereign
immunity.
City of Denton v. Van Page,
701 S.W.2d 831 (Tex.
1986).
Formal, written notice
no later than six
months after day the
incident occurs,
reasonably describing:
(1) the damage or
injury claimed;
(2) the time and place
of the incident; and
(3) the incident.
Tex. Civ. Prac. & Rem.
Code Ann. §
101.101(a).
“Actual notice” can
substitute.
Tex. Civ. Prac. & Rem.
Code Ann. §
101.101(c).
State’s immunity is waived for:
(1) use of motor vehicle;*
Tex. Civ. Prac. & Rem. Code
Ann. § 101.021(1).
(2) injury caused by condition
or use of tangible personal or
real property;**
Tex. Civ. Prac. & Rem. Code
Ann. § 101.021(2); and
(3) claims arising from premises
defects.
Tex. Civ. Prac. & Rem. Code
Ann. § 101.021(2).***
*State only liable if employee
operating vehicle would have
been liable.
**Liable only if private person
would have been liable. This
precludes suit predicated solely
on respondeat superior.
Involves activities conducted
on real property, not defects in
the real property.
***Claims involving premises
liability (defect in real property)
brought under this section.
State employees enjoy either absolute
immunity (e.g., judges) or qualified immunity
(e.g., jailers, sheriffs, and other public
officers or employees).
State employees’ qualified immunity applies
only to discretionary actions taken in good
faith within the scope of the employee’s
authority.
No qualified immunity for ministerial
(mandatory) actions.
State involved in joint enterprise is liable for
the torts of other members of the joint
enterprise.
Texas Dep’t of Transp. v. Able, 35 S.W.3d 608
(Tex. 2000).
TTCA (Tex. Civ. Prac. & Rem. Code Ann. §
101.022) says two additional liability
limitations apply:
(1) special defects (e.g., unusual danger);
and
(2) Absence, condition or malfunction of
traffic signs.
Tex. Civ. Prac. & Rem. Code Ann. § 101.060.
Bodily Injury/Death:
$250,000 Per Person
$500,000 Occurrence
Damage to Property:
$100,000 occurrence
Tex. Civ. Prac. Rem.
Code § 101.023.
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Utah Governmental
Immunity Act (GIAU).
U.C.A. §§ 63G-7-101
through 63G-7-904 (1963).
“Governmental Entity” and
its employees retain
immunity for all
“governmental functions”
(defined as “activity,
undertaking, or operation
of a governmental entity”)
no matter how labelled,
unless expressly waived in
Act.
“Governmental Entity”
includes State and all its
political subdivisions.
Written Notice of
Claim must be filed
within one year after
denial of claim. U.C.A.
§§ 63G-7-401.
Within sixty (60) days
of filing written Notice
of Claim government
must approve or deny.
Then suit can be
brought. U.C.A. §§
63G-7-401, 402, 403.
Plaintiff has one (1)
year after denial of
claim or after the 60-
day period ends to
bring the action. Utah
Code Ann. §§63-G-7-
401, 402, 403.
Governmental entity immune
from latent condition of road,
tunnel, bridge, sidewalk or any
public building or structure.
No liability (immunity not
waived) for:
(1) “discretionary function”
(distinct and limited immunity
for decision that involves
policy-making function);
See “Little Test” Little v. Utah,
667 P.2d 49 (Utah 1983) (e.g.,
fire fighting).
(2) assault, false imprisonment;
(3) negligent inspection;
(4) judicial proceedings;
(5) operation or repair of flood
systems; and
(6) many others.
U.C.A. § 63G-7-201.
Immunity waived as to:
(1) any act by employee in scope of
employment;
(2) contractual obligations;
(3) defective, unsafe condition of road,
sidewalk, bridge, etc.;
(4) defect or condition of building, structure,
etc. (U.C.A. § 63G-7-301); and
(5) injury or damage resulting from
employee driving or being in control of a
vehicle.
U.C.A. § 63G-7-202(3)(c)(2).
Three-part test to determine whether
governmental entity enjoys immunity under
the Governmental Immunity Act:
(1) whether the activity is a governmental
function;
(2) whether governmental immunity was
waived for the particular activity; and
(3) whether there is an exception to that
waiver.
Winkler v. Lemieux, 329 P.3d 849 (Utah App.
2014).
Property Damage:
$233,600.
U.C.A. § 63G-7-
604(1)(c).
Personal Injury:
$583,900.
U.C.A. § 63G-7-
604(1)(a).
$2 million limit to
aggregate amount of
individual awards for
single occurrence.
U.C.A. § 63G-7-
604(1)(d).
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Vermont Tort Claims Act.
Vt. Stat. Ann. 12, §§ 5601-
5606 (1961).
Notice of a claim
against a town for
insufficiency of a
bridge or culvert must
be within 20 days. Vt.
Stat. Ann. 19, § 987.
Personal injury and
property claims must
be filed within 3 years.
Vt. Stat. Ann. 12, §§
512(4) and 512(5).
Small claims ($2,000
or less) against State
must be filed within 18
months. Vt. Stat. Ann.
32, § 932(b).
Agent for service is
Attorney General.
State and its employees liable
to same extent as private
individual, unless exception
listed in insurance policy. Vt.
Stat. Ann. 12, § 5601(e).
Exclusive right of action is
against State not employee
(except for gross negligence,
willful act). Vt. Stat. Ann. 12, §
5602(a)(b).
State employees liable for
operating motor vehicle
because source of their
employment is unconnected to
tort of negligent driving.
Kennery v. State, 38 A.3d 35
(Vt. 2011).
Small claim (under $2,000)
against State not otherwise
allowed may be filed in Small
Claims Court. Vt. Stat. Ann. 32,
§ 932(a).
Exceptions to waiver of immunity set forth in
§ 5601(e):
(1) discretionary function: (a) involves either
an element of judgment/ choice or a statute
or regulation prescribes a course of action,
and (b) is it type of act protected by the
exception (presumption can be rebutted)?
Searles v. Agency of Transp., 762 A.2d 812
(Vt. 2000) (e.g., no liability for operating
emergency vehicle pursuant to § 1015(a)(4)
(with lights and siren);
(2) any claim arising from selection of or
purposeful deviation from standards for
planning and design of highways; and
(3) above exceptions do not apply if there is
policy of insurance purchased by
Commissioner of Buildings and General
Services or if employee purchased policy
covering gross negligence.
No subrogation claims against State.
Maximum liability of
the State is $500,000
to any one person
and maximum
aggregate liability is
$2,000,000 to all
persons arising out of
each occurrence.
Vt. Stat. Ann. 12, §
5601(b).
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Virginia Tort Claims Act.
Va. St. §§ 8.01-195.1 to
195.9 (1981).
Provides a limited right to
sue State employee when
a private entity or
individual would be liable,
provided the State
employee is acting in
course and scope.
Only partial waiver of
sovereign immunity.
Commonwealth is immune
from tort liability for acts
of employees, unless an
express statutory or
constitutional provision
waives that immunity.
Immunity of judges,
attorneys, and public
officers of Commonwealth
is preserved.
Notice must be given
within one (1) year of
when claim accrued.
Va. St. § 8.01-195.6
Claim filed with
Director of the
Division of Risk
management or the
Attorney General.
Must contain nature
of claim, time and
place, name of agency
at fault.
Must sue within 18
months of filing
notice. Va. St. § 8.01-
195.7.
Commonwealth employee is
immune if act ministerial
(follows statute or established
rules), but not discretionary
(use of judgment). Messina v.
Burden, 321 S.E.2d 657 (Va.
1984).
Claims allowed include:
Maintenance: Failure to
correct hazardous roadway
conditions within reasonable
time.
General Hazards: Hazards
created by design,
construction, and maintenance
problems (e.g., poor signing,
low shoulders).
Work Zones: Hazardous
construction and work zones
(involving motor vehicles).
Operations: Hazards created by
general operations and work
zone activity that do not
involve motorists.
Operating Motor Vehicle: Is
ministerial act.
Heider v. Clemons, 400 S.E.2d
190 (Va. 1991).
Exceptions to waiver of immunity are listed
in Va. St. § 8.01-195.3.
(1) Tax assessment;
(2) Judicial Proceeding; and
(3) Execution of Court Order.
Claims against Commonwealth for medical
negligence subject to Chapter 21.1 (Va. St. §
8.01-581.1, et seq.).
Recovery in medical malpractice shall not
exceed the limits imposed by Va. St. § 8.01-
195.3.
Immunity waived only for ministerial acts
(obedience to authority without regard to or
the exercise of his or her own judgment) but
not for discretionary acts, which have the
following characteristics:
(1) an authorized individual or agency was
given the power and duty to make a
decision;
(2) the decision was made from a set of valid
alternatives; and
(3) the individual or agency exercised
independent judgment in making the
selection.
No exception for intentional acts. No
immunity if intentional tort or actions
outside scope of employment.
Bailey v. Lewis, 2012 WL 9735223 (Va. Cir.
Ct. 2012); Messina v. Burden, 321 S.E.2d 657
(Va. 1984).
Immunity is waived
up to $100,000 or the
amount of the State’s
insurance coverage,
whichever is greater,
exclusive of interest
and costs. Va. St. §
8.01-195.3.
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Actions and Claims
Against State.
R.C.W.A. § 4.92.090, et
seq. (1963).
Whether acting in
governmental or
proprietary capacity, State
and its employees liable
for torts the same as
private person. R.C.W.A. §
4.92.090.
One of the broadest
waivers of sovereign
immunity in the country.
Verified Notice of
Claim form must be
filed with Washington
Office of Risk
Management prior to
the expiration of the
statute of limitations
for the claim (running
of Statute of
Limitations not
affected). R.C.W.A. §
4.92.100.
Must describe time,
place, conduct and
circumstances of
injury, names of all
witnesses and relevant
persons, amount of
damages, and address
of claimant.
Suit cannot be filed
until 60 days after
standard tort claim
form filed. R.C.W.A. §
4.92.110.
There is no immunity and State
is liable if:
(1) police high speed chase;
(2) discharge of raw sewage
into river: and
(3) operating motor vehicle.
Rahman v. State, 1246 P.3d 182
(Wash. 2011), overturned due
to legislative action.
No immunity for discretionary
activities, unless the
government could show that a
“policy decision.” King v. City of
Seattle, 525 P.2d 228 (Wash.
1974).
No liability can be imposed against State for
“discretionary acts” of State.
Evangelical United Brethren Church of Adna
v. State, 407 P.2d 440 (Wash. 1965).
Guidelines used to determine if act
“discretionary”:
(1) involve basic government policy,
program, or objective;
(2) is act essential to realization of that
policy, program or objective; and
(3) does act involve judgment?
Policy-making is immune.
Evangelical Church of Adna v. State, 407 P.2d
440 (Wash. 1965).
Discretionary decisions must be made at a
“truly executive level” rather than an
operational level. Mason v. Bitton, 534 P.2d
1360 (Wash. 1975).
No caps or
limitations.
State liable for
damages arising out
of tortuous conduct,
whether acting in
governmental or
proprietary capacity,
to same extent as if it
were a private person
or corporation.
R.C.W.A. § 4.92.090.
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COMMENTS/EXCEPTIONS
DAMAGE CAPS
Governmental Tort Claims
Act.
W. Va. Code § 29-12-1 to §
29-12-1 (1957).
Article VI, § 35 of the West
Virginia Constitution
provides immunity to
State. “The State of West
Virginia shall never be
made defendant in any
court of law or equity.”
Claim must be brought
against State within
two years after cause
of action arose. W. Va.
Code § 29-12A-6(a).
State entities and officials are
absolutely immune from policy-
making acts and have qualified
immunity for discretionary acts
that do not violate clearly
established rights and laws.
Discretionary acts that do
violate clearly established laws
which occur outside of the
public official’s scope of
employment strip the official of
his or her qualified immunity,
but the State entity retains its
immunity.
If the official’s offending acts or
omissions occur within the
scope of the official’s
employment, both the State
entity and the official lose their
immunity.
Courts have carved out exceptions to
absolute grant of immunity including suits
that seek recovery under and up to the
State’s liability insurance coverage. Univ. of
W. Virginia Bd. of Trustees ex rel. W. Virginia
Univ. v. Graf, 516 S.E.2d 741 (W. Va. 1998).
The Board of Risk and Insurance
Management has control over all insurance
covering State property, activities and
responsibilities.
Each policy insuring the State must provide
that the insurer is barred and estopped from
relying upon the constitutional immunity of
the State of West Virginia against claims or
suits.
The State is protected from suits by
purchasing adequate insurance coverage.
W. Va. Code § 29-12-5(a).
Where policy is silent on whether State and
its insurer can claim the benefit of immunity,
the immunity of the State is determined by
the qualified immunity of a public executive
official whose acts or omissions give rise to
the case. Parkulo v. W. Virginia Bd. of Prob.
& Parole, 483 S.E.2d 507 (W. Va. 1996).
State authorized to
purchase liability
insurance covering
State “property,
activities and
responsibilities.” W.
Va. Code § 29-12-5
State Board of Risk
and Insurance
Management must
purchase insurance
which “shall provide
that the insurer shall
be barred and
estopped from relying
upon immunity.”
Limited by insurance
coverage purchased
by State Board of Risk
and Insurance
Management.
State ex rel. W.Va.
Dept. of Transp.,
Highways Division v.
Madden, 453 S.E.2d
(W. Va. 1994).
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Claims Against
Governmental Bodies,
Officers and Employees.
Wis. Stat. §§ 893.80-.83
(1987).
Qualified immunity for acts
done in exercise of
legislative, quasi-
legislative, judicial or
quasi-judicial functions.
(i.e., discretion).
Written notice of
claim must be served
within 120 days. Wis.
Stat. § 893.80(1d)(a)
(for municipal entities
and employees); Wis.
Stat. § 893.82(3) (for
the State and its
employees).
The State and its employees
may be sued for “an act
growing out of or committed in
the course of the discharge of
the officer’s, employee’s or
agent's duties.” Wis. Stat. §
893.82(3).
With respect to claims against
governmental entities, “so far
as governmental responsibility
for torts is concerned, the rule
is liability - the exception is
immunity.” Holytz v. City of
Milwaukee, 17 Wis.2d 26, 39,
115 N.W.2d 618 (1962).
Three exceptions to immunity:
(1) Known danger exception: Situation so
dangerous that it is clear the police officer or
State employee required to act in certain
way;
(2) Ministerial duty exception: State
employee required by law to act in specific
way. (e.g., Wis. Stat. § 346.03 says
emergency vehicles given certain privileges
when light and siren on); and
(3) Willful and wanton acts.
Lodi v. Progressive, 646 N.W.2d 314 (Wis.
2002).
State employee is liable for performance of
ministerial, not discretionary duties. Is
ministerial only when it is absolute, certain
and imperative, involving merely the
performance of a specific task when the law
imposes, prescribes and defines the time,
mode and occasion for its performance with
such certainty that nothing remains for
judgment or discretion.” Pries v. McMillon,
784 N.W.2d 648 (Wis. 2010).
$50,000 for claims
against municipal
entities and their
employees; no
punitive damages
allowed. Wis. Stat. §
893.80(3).
$250,000 for claims
against the State and
its employees; no
punitive damages
allowed. Wis. Stat. §
893.82(6).
$250,000 limit for
negligent operation of
any municipal (except
vehicles not required
to be registered
[$50,000] per §
345.05(1)(bm)). Wis.
Stat. § 345.05.
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Wyoming Governmental
Claims Act (WGCA).
Wyo. Stat. §§ 1-39-101 to
121 (1979).
Except as provided in the
WGCA, a governmental
entity (i.e., state or local
government body) is
granted immunity from
liability for any tort. Wyo.
Stat. § 1-39-104.
Written Notice of
Claim must be
presented with two (2)
years. Wyo. Stat. § 1-
39-113.
Compliance with
Notice of Claim
requirement no longer
has to be alleged in
complaint. Brown v.
City of Casper, 248
P.3d 1136 (Wyo.
2011).
Suit must be filed
within one (1) year of
written Notice of
Claim. Wyo. Stat. § 1-
39-114.
Claims allowed for:
(1) Operating motor vehicle:
Wyo. Stat. § 1-39-105.
(2) Operating building or park:
Wyo. Stat. § 1-39-106.
(3) Airport: Wyo. Stat. § 1-39-
107
(4) Operating public utilities
(gas, electric, water, etc.) and
ground transportation: Wyo.
Stat. § 1-39-108.
(5) Operating hospital: Wyo.
Stat. § 1-39-109.
(6) Torts of police: Wyo. Stat. §
1-39-112.
The WGCA abolishes all judicially created
categories such as governmental or
proprietary functions and discretionary or
ministerial acts previously used by the courts
to determine immunity or liability.
Exclusions from the waiver of liability are
listed at W.S. 1-39-120:
(1) defect in plan or design of bridge, culvert,
highway, road, street, sidewalk or parking
lot;
(2) failure to construct or reconstruct bridge,
culvert, etc.; and
(3) maintenance, including maintenance to
compensate for weather conditions, of any
bridge, culvert, etc.
Personal Injury:
$250,000 Per Person;
$500,000 Per
Occurrence
State can purchase
liability insurance in
which case limits are
extended to match
limits of policy.
Wyo. Stat. § 1-39-118.
Property Damage:
Claim must be less
than $500.
Wyo. Stat. § 1-39-
118(f).
These materials and other materials promulgated by Matthiesen, Wickert & Lehrer, S.C. may become outdated or superseded as time goes by. If you should have questions
regarding the current applicability of any topics contained in this publication or any publications distributed by Matthiesen, Wickert & Lehrer, S.C., please contact Gary Wickert at
gwickert@mwl-law.com. This publication is intended for the clients and friends of Matthiesen, Wickert & Lehrer, S.C. This information should not be construed as legal advice
concerning any factual situation and representation of insurance companies and\or individuals by Matthiesen, Wickert & Lehrer, S.C. on specific facts disclosed within the
attorney\client relationship. These materials should not be used in lieu thereof in anyway.