State Sovereign Immunity and Tort Liability Chart

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 11th 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 11th 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
WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 1 Last Updated 1/13/22
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.
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.
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.
“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 11th 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.”
TORT CLAIMS ACT
STATE NOTICE DEADLINES CLAIMS/ACTIONS ALLOWED COMMENTS/EXCEPTIONS DAMAGE CAPS
(None or Citation)
Individual State employees
have qualified immunity (State- Operating a vehicle in scope of employment
No Tort Claims Act. agent immunity) and can be is protected. State-agent immunity protects
sued for conduct “contrary to State employees when formulating plans,
Alabama distinguishes clearly established law” if not
between liability of the exercising judgment, or discharging duties
acting in good faith. Issue is (including driving a vehicle), unless:
State and liability of State whether a reasonable official
employees in their (1) When the U.S. or Alabama Constitutions
could have believed his or her
individual capacity (State- or state law require otherwise; or
actions were lawful in light of
agent liability). (2) Where State agent acts “willfully,
clearly established law. Ex
maliciously, fraudulently, in bad faith,
Alabama enjoys strong parte Sawyer, 876 So.2d 433 None
beyond his or her authority, or under a
sovereign immunity (Ala. 2003).
mistaken interpretation of the law.”* The damage caps
(known as “State-agent State employees whose found in Ala. Stat. §§
immunity”). It is almost Ex parte Cranman, 792 So.2d 392 (Ala.2000);
positions exist by virtue of Parker v. Amerson, 519 So.2d 442 (Ala. 11-93-1 to 11-95-3 do
invincible. Hutchinson v. legislative pronouncement get not apply to actions
ALABAMA Bd. of Trs. of Univ. of Ala., None 1987).
“State-agent immunity.” against State.
256 So.2d 281 (Ala. App. *Police given Peace Officer Immunity under
1971). Claims against State employees § 6-5-338(a) for “discretionary acts.” Two- No punitive damages
who serve as constitutional prong test: against the State.
It can never be made a officers barred by full State
defendant in any court. (1) defendant must prove discretionary Ala. Stat. § 6-11-26.
immunity.
Ala. Const. Art. I, § 14. (“§ function; and
14”). Burden-shifting process. State (2) burden then shifts to plaintiff to show
employee must show that bad faith/malice/willfulness.
Alabama immunity is called action was subject to
“State immunity”. Hollis v. City of Brighton, 950 So.2d 300 (Ala.
immunity. Then burden shifts 2006).
Individual State employee to plaintiff to show exception.
immunity is called “State- Ex parte Estate of Reynolds, Liability insurance covering State employees
agent immunity.” 946 So.2d (Ala. 2006) (e.g., for wrongful acts is required. Ala. Code § 36-
employee on personal errand 1.6.1.
at time of accident).
TORT CLAIMS ACT
(None or Citation)
The doctrine of sovereign A tort claim may not be brought when the
immunity allows any person or claim is an action for a tort based upon an
corporation having a tort claim act or omission of a State employee in the
to bring action against the execution of a statute or regulation or
“The legislature shall State. Alaska Stat. § 09.50.250. performance or failure to perform a Damages awarded by
Actions Where State Is a
establish procedures Failure to remove natural discretionary function or duty. Alaska Stat. § a court for all claims
Party.
for suits against the accumulation of ice and snow 09.50.250. arising out of a single
Alaska Stat. §§ 09.50.250- State.” Article II, § 21 on state highways. State v. Discretionary acts or functions for which injury or death may
.300 (1962). of Alaska Constitution. Abbott, 498 P.2d 712 (Alaska State has immunity from tort liability are not exceed $400,000.
ALASKA Abolished sovereign Claims against peace 1972). only those acts or functions occurring at Alaska Stat. §
immunity and made State officers shall be made Operating motor vehicle. planning level, as opposed to operational 09.17.010.
liable for its torts, with within two years after Rutherford v. State, 605 P.2d 16 level; planning decision is one that involves No punitive damages
limited exceptions, the cause of action. (Alaska 1979). policy formation, whereas operational against the State.
including discretionary Alaska Stat. § decision involves policy execution or Alaska Stat. §
functions. Failure to provide sign warning
09.10.070. bicyclists of hazardous railroad implementation. State, Dep’t of Transp. & 09.50.280.
crossing. Guerrero ex rel. Pub. Facilities v. Sanders, 944 P.2d 453
Guerrero v. Alaska Hous. Fin. (Alaska 1997).
Corp., 123 P.3d 966 (Alaska See Alaska Stat. § 09.50.250 for other
2005). exceptions.
All actions against A public entity is not liable for If absent proof of a public employee’s gross None
public entities or losses that arise out of an act negligence or intent to cause injury, public
Actions Against Public No law shall limit the
public employees shall or omission determined to be a entities have qualified immunity for:
Entities or Public amount of damages
be brought within one criminal felony by a public
Employees Act. (1) The failure to make an arrest or to retain to be recovered for
year after the cause of employee unless the public
Public entities are granted action. A.R.S. § 12- entity knew of the employee’s an arrested person; causing the death or
ARIZONA absolute immunity for the 821. propensity for that action. (2) An injury to the driver of a vehicle that is
injury of any person.
exercise of a judicial, caused by a violation by another driver; and Ariz. Const. Art. II, §
Claims against the This subsection does not apply (3) Preventing the sale of a handgun to a 31.
legislative, or discretionary
State shall be filled to acts or omissions arising out person who may lawfully possess a handgun, No punitive damages
function. A.R.S. § 12-
within 180 days after of the operation or use of a etc.
820.01 (1984). against the State.
the action occurs. motor vehicle. A.R.S. § 12-
A.R.S. § 12-821.01. 820.05. See A.R.S. § 12-820.02 for other exceptions. A.R.S. § 12-820.04.
TORT CLAIMS ACT
(None or Citation)
The State’s sovereign immunity
is waived when:
No Tort Claims Act. (1) the State is the moving
Arkansas shall never be party seeking relief; Few exceptions to immunity granted by
made a defendant in any Claim must be filed (2) an act of the legislature Arkansas’ Constitution.
of her courts. (applies only with the Director of creates a specific waiver of State officials are not immune to the extent
to state). Ark. Const. Art. V, the Arkansas State immunity; and that they are covered by liability insurance.
Claims Commission (3) where a State agency’s None
§ 20. A.C.A. § 19-10-305.
within the period actions are illegal, or when a No punitive damages
ARKANSAS The Arkansas State Claims allowed by law for the public employee refuses to do Arkansas requires all political subdivisions to against the State.
Commission shall have same type of claim a ministerial act required by carry the minimum amounts of motor A.C.A. § 21-9-203.
exclusive jurisdiction over against a private statute. vehicle liability coverage. Therefore, in the
all claims against the State person. A.C.A. § 19-10- State Office of Child Support case of a car accident, all political
of Arkansas and its several 209. Enf’t v. Mitchell, 954 S.W.2d subdivisions may be held liable up to the
agencies. A.C.A. § 19-10- 907 (1997); Travelers Cas. & minimum limits. A.C.A. § 21-9-303.
204. Sur. Co. of Am. v. Arkansas
State Highway Comm’n, 120
S.W.3d 50 (2003).
California Tort Claims Act. Personal injury/

property claim within A public entity (e.g., state) is
Except as otherwise six months after liable for injuries proximately
provided by statute, public accrual of the cause of caused by their employee’s A public employee is not liable for an injury
entities are not liable for action. All other claims acts or omissions except when resulting from his act or omission where the
an injury, arising from an shall be presented that employee is immune from act or omission was the result of a
act or omission of the within one year. Cal. liability. Cal. Gov’t Code § discretionary act. Cal. Gov’t Code § 820.2.
public entity or their Gov’t Code § 911.2. 815.2. None
employee. Cal. Gov’t Code Public entities are not liable for injuries
State Board of Control A public entity is liable for caused by misrepresentation. Cal. Gov’t No punitive damages
CALIFORNIA § 815.
Gov’t Claims Branch, death or injury proximately Code § 818.8. against the State. Cal.
Numerous immunities P.O. Box 3035 caused by a negligent or Gov’t Code § 818.
provided. Cal. Gov’t Code Sacramento, wrongful act or omission in the Public entities are not liable for an injury
CA
§§ 815 - 996.6 (1963). operation of any motor vehicle caused by adopting or failing to adopt an
95812-3035.
Public employee liable for Board must respond by a public employee acting enactment or by failing to enforce any law.
injury to the same extent within 45 days. Then within the scope of his Cal. Gov’t Code § 818.2.
as a private person. Cal. six (6) months to file employment. Cal. Veh. Code §
Gov’t Code § 815. 17001.
suit
TORT CLAIMS ACT
(None or Citation)
Claims against the
Immunity is waived for claims resulting from:
State shall be filed
Colorado Governmental within 182 days of the (1) The operation of a vehicle owned by a
Immunity Act. The Colorado Governmental public entity used in the scope of
injury. C.R.S. § 24-10- $350,000 Per Person
Immunity Act generally bars employment, except emergency vehicles;
C.R.S. §§ 24-10-101 109. $900,000 per
action against the State and (2) The operation of public hospital,
through 24-10-120. occurrence, with no
File with Atty General. public entities for tort claims. correctional facility, or jail;
A public entity is immune Medina v. State, 35 P.3d 443 one person receiving
COLORADO File suit after denial or (3) The dangerous condition of public
from liability in all tort (Colo. 2001). more than $350,000.
90 days has passed. housing;
claims for injury except as (4) The dangerous condition of a public No punitive damages
C.R.S. § 24-10-109(6). A public entity, by resolution,
otherwise provided. roadway; and against the State.
may waive immunity. C.R.S. §
C.R.S. §§ 24-10-101 – 120 Use Statute of (5) The operation and maintenance of public C.R.S. § 24-10-114.
24-10-104.
(1971). Limitations for that facilities.
type of action. C.R.S. §
C.R.S. § 24-10-106.
24-10-109(5).
TORT CLAIMS ACT
(None or Citation)
Claims against the There are certain claims which may be
State shall be Connecticut’s doctrine of brought directly against the State:
presented within one sovereign immunity does not (1) Any person injured through the
year after it accrues. allow the State to be sued negligence of any State official or employee
C.G.S.A. § 4-148. without its consent. when operating a motor vehicle owned and
General Assembly The Claims Commissioner was insured by the State shall have a claim
may, through special created to process claims and against the State. C.G.S.A. § 52-556 (not
act, authorize a person grant consent for claims against subrogation claims);
to present a claim the State. C.G.S.A. §§ 4-142 and (2) Claims for the periodic payment of
after one year if: 4-160. disability, pension, retirement or other
Claims Against The State.
employment benefits;
(1) just and equitable; Commissioner can approve the
No State officer or (3) Claims upon which suit otherwise is
and immediate payment of “just
employee shall be authorized by law (injured by defective
(2) express finding of claims” not exceeding $7,500.
personally liable for bridge/road. C.G.S.A. § 13a-144) (not
compelling equitable “Just claims” are those that in
CONNECTICUT damage or injury, not subrogation claims); and None
circumstances that equity and justice the State
wanton, reckless or (4) Claims for which an administrative
would serve a public should pay, as long as it caused
malicious, caused within hearing procedure otherwise is established
purpose. the damage or injury. C.G.S.A.
the scope of his or her by law.
Claims for injuries §§ 4-141, 158.
employment or duties.
resulting from Suits can be brought against NOTE: Subrogation claims under C.G.S.A. §
C.G.S.A. § 4-165 (1959).
defective highways, state for defective or poorly 52-556 and § 13a-144 may not be brought
sidewalks, roads, or maintained highways, bridges, by subrogated carrier because they are not a
bridges must be and sidewalks. Not limited to “person”.
brought within two (2) roads within the state highway Nationwide Gen. Ins. Co. v. Colon, 2016 WL
years and notice system, but no liability for 3391622 (Conn. Super. 2016).
within ninety (90) sidewalks maintained by a
days. Inaccuracy in municipality. Government must
notice will preclude have actual or constructive
recovery. C.G.S.A. §§ notice. C.G.S.A. § 13a-144.
13a-149, 13a-144.
TORT CLAIMS ACT
(None or Citation)
Delaware Tort Claims Act.
No claim shall arise against
the State, public officer/
employee if the act/ Bringing a tort claim against the Sovereign Immunity is waived where
omission: State requires a party to prove insurance coverage exists by statute. Del.
(1) arose out of an official that the action is not precluded Code tit. 18, § 6511.
duty requiring discretion; by the State Tort Claims Act or Where a State officer/employee is negligent
DELAWARE None None
(2) was done in good faith the doctrine of sovereign in performing routine functions, they may be
and for the best interest of immunity. Marvel v. Prison held personally liable. This includes motor
the State; and Indus., 884 A.2d 1065 (Del. vehicle accidents. Simon v. Heald, 359 A.2d
(3) was done without gross Super. 2005). 666 (Del. Super. 1976).
negligence.
Del. Code tit. 10, § 4001-
4005 (1978).
An action for
unliquidated damages D.C. shall not be immune for a
to person or property claim resulting from a State A discretionary governmental function of
Claims Against District.
must be made by hand employee acting within their D.C. is immune from suit. The test to
The Mayor of the District delivery or U.S. mail scope of employment determine if an action is discretionary is
DISTRICT OF of Columbia is empowered within six months in negligently operates a motor whether that function poses a threat to the
to settle, in his discretion, vehicle. D.C. Code Ann. § 2-412. None
COLUMBIA writing to the Mayor, quality and efficiency of government if
claims against D.C. D.C. stating the time, place, liability is imposed on the negligent act or
Pothole accidents, fallen trees,
Code Ann. § 2-401 through cause, and omission. Shifrin v. Wilson, 412 F. Supp. 1282
damage caused by D.C.
§ 2-416 (1929). circumstances of the (D.D.C. 1976).
government, its property, or its
injury or damage. D.C. employees.
Code Ann. § 12-309.
TORT CLAIMS ACT
(None or Citation)
An action may not be The State shall not be
Florida’s Sovereign brought against the Public duty exception. A governmental entity
is not liable for a tort caused by the liable to pay a claim
Immunity Statute. State or one of its
breaching of a duty owed to the public at to any one person
Government entities may agencies unless which exceeds the
be liable for damages claimant presents the Operational functions, such as large. Lewis v. City of St. Petersburg, 98 F.
Supp.2d 1344 (M.D. Fla. 2000) aff’d in part, sum of $200,000 or
resulting from negligent or claim within three negligently driving a motor $300,000 for any
wrongful action of public years after such claim vehicle, are not covered within rev’d in part, 260 F.3d 1260 (11th Cir. 2001).
FLORIDA claim arising out of
employees in the scope of accrues. the discretionary act exception. Discretionary Function Exception. A the same incident or
their employment if a Kaisner v. Kolb, 543 So.2d 732 governmental agency is immune from tort occurrence. F.S.A. §
For wrongful death (Fla. 1989).
private person would be liability based upon actions that involve 768.28 (5).
claim, it must be
liable in similar discretionary functions. Cook ex rel. Estate of No punitive damages
presented within two
circumstances. F.S.A. § Tessier v. Sheriff of Monroe County, Fla., 402 against the State.
years.
768.28(1) (1973). F.3d 1092 (11th Cir. 2005).
F.S.A. § 768.28 (6)(a). F.S.A. § 768.28 (5).
Except as provided,
Georgia Tort Claims Act. Georgia does not waive immunity for losses
Georgia is not liable
Sovereign immunity is arising from:
The State is subject to liability for damages
waived for torts of State for its employee’s negligence (1) an act or omission by a State employee exceeding $1 million
officers and employees Written notice of a when operating a motor exercising due care in the execution of a for single occurrence
while acting within the claim shall be given vehicle if the damage was not statute, regulation, or rule; and the State’s
scope of their employment within twelve (12) caused from a method of (2) the exercise or the failure to exercise a liability per
GEORGIA months of the date providing police protection. discretionary function;
and shall be liable for such occurrence shall not
torts in the same manner the loss. O.C.G.A. § 50- (3) the collection of any tax; exceed $3 million.
21-26. Georgia Dep’t of Pub. Safety v. (4) legislative or judicial action; and
as a private individual O.C.G.A. § 50-21-29.
Davis, 285 Ga. 203, 676 S.E.2d (5) methods of providing law enforcement.
would be liable under like
1 (2009). No punitive damages
circumstances. O.C.G.A. §§ See O.C.G.A. § 50-21-24 for other
50-21-20, 50-21-37 (1992). against the State.
exceptions.
O.C.G.A. § 50-21-30.
TORT CLAIMS ACT
(None or Citation)
As a no-fault state, no claim
arises against a liable State Non-economic
Hawaii State Tort Liability employee for negligently
Claim for damage or operating a motor vehicle until Hawaii does not waive immunity for any damages are capped
Act.
claim arising from: at $375,000. Haw.
Haw. Stat. § 662-2 (1957). injury must be the accident is deemed to be
Stat. § 663-8.7.
presented to the State “serious” (medical expenses (1) An act or omission in the execution of a
Immunity waived for State within two (2) years of statute or a discretionary duty; No punitive damages
over $5,000, use of body part
employees to the same when claim accrues. (2) Any claim arising in the collection of any against the State.
HAWAII permanent, in death). Property
extent as private Haw. Stat. § 662-4. tax; and Haw. Stat. § 662-2.
claims allowed. Haw. Stat. §
individuals under similar Medical tort claims (3) Any claim arising out of assault, battery,
431:10C-306; Savini v. Univ. of Any judgment over $1
circumstances (“Private shall be presented false imprisonment.
Hawaii, 113 Haw. 459, 153 P.3d million against State
Analog”) unless exception. within six (6) years.
1144 (2007). See Haw. Stat. § 662-15 for other may be paid over five
Cootey v. Sun Inv., Inc., 718 Haw. Stat. § 657-7.3. exceptions.
Immunity also waived to extent years. Haw. Stat. §
P.2d 1086 (Haw. 1986).
of insurance. Haw. Stat. § 657-24.
661.11.
Idaho shall not be
liable for damages
Idaho Tort Claims Act. Idaho and its employees while acting within from a single
Every governmental entity Tort claims against the A governmental entity will be the scope of their employment and without occurrence exceeding
is subject to liability arising State shall be filed held liable for the negligence of malice shall not be liable for: $500,000. This limit
out of its negligent or with the Secretary of their employees while driving a (1) An act or omission in the execution of a does not apply if the
otherwise wrongful acts or State within 180 days motor vehicle as long as the statute or a discretionary duty; State has purchased
omissions and those of its from when the claim employee was driving while in (2) Any claim arising out of assault, battery, liability insurance in
IDAHO
employees acting within arose, and action must the scope of their employment misrepresentation, false imprisonment; and excess or if the action
the scope of employment commence within two and no exceptions apply. (3) Arises out of the collection of any tax or is caused by willful or
to the same extent a years. Idaho Code §§ Teurlings v. Larson, 156 Idaho fee. reckless conduct.
private person would be 6-905 and 6-911. 65, 320 P.3d 1224 (2014). Idaho Code § 6-926.
liable. Idaho Code § 6-903 See Idaho Code § 6-904; § 6-904 (a); and § 6-
(1976). 904 (b) for other specific exceptions. No punitive damages
against the State.
Idaho Code § 6-918.
TORT CLAIMS ACT
(None or Citation)
State Lawsuit Immunity Illinois State employees are immune from
Act. liability if their act or omission is
745 I.L.C.S. § 5/1 (1972). discretionary in function. Michigan Ave. Nat.
Bank v. Cty. of Cook, 191 Ill.2d 493, 732 Claims for tort
State is immune unless
N.E.2d 528 (2000); Harinek v. 161 N. Clark St. damages are limited
legislative exception.
Tort claims made against the Ltd. P’ship, 692 N.E.2d 1177 (1998). to $100,000 if it does
Court of Claims Act. Tort claims against the
State involving the negligent Discretionary acts of a local government and not involve the
705 I.L.C.S. § 505/1. State shall be filed
operation of a State vehicle are its employees are entitled to absolute operation of a State
within two (2) years
ILLINOIS All claims against the State to be heard by the Court of immunity. Johnson v. Mers, 664 N.E.2d 668 motor vehicle. 705
from when the claim
for damages in cases Claims and are not limited to (Ill. App. 1996). Discretionary acts are unique I.L.C.S. § 505/8.
arose. 705 I.L.C.S. §
sounding in tort, if like the $100,000 cap. 705 I.L.C.S. § to public office and require deliberation,
505/22.
cause of action would lie 505/8(d). decision, or judgment. White v. Village of If State-owned vehicle
against a private person or Homewood, 673 N.E.2d 1092 (Ill. App. 1996). operated by State
corporation shall be heard Ministerial acts are generally performed in employee, no limit.
before the Court of Claims prescribed manner in obedience to legal
(7 judges). 705 I.L.C.S. § authority. Snyder v. Curran Township, 657
505/8. N.E.2d 988 (Ill. 1995).
There are several exceptions to Indiana’s No punitive damages
Claims against the waiver of immunity including: against the State. I.C.
State are barred (1) discretionary functions*; § 34-13-3-4.
unless Tort Claims (2) the adoption and enforcement of or Indiana shall not be
Indiana Tort Claims Act. Notice is filed with failure to adopt and enforce a law; and liable for more than
Governmental entity can attorney general or (3) the act or omission of anyone other than
The defense of sovereign $300,000 to a single
be subjected to liability for the state agency the governmental entity or their employee.
immunity is not available to the claimant (if before
their own tortious conduct involved within 270
State for the negligent See I.C. § 34-13-3-3 for more exceptions. 1/1/06) or $500,000
or conduct of their days after the loss
operation of its vehicles. State (if after 1/1/06 and
INDIANA employees acting within occurs. I.C. § 34-13-3- *“Planning/operational test” is used.
v. Turner, 286 N.E.2d before 1/1/08) or
the scope of employment, 6. Immunity only if function characterized as
697(1972); 3A Ind. Law Encyc. $700,000 (if after
unless the conduct is “policy decisions that have resulted from a
Suit based on breach Automobiles and Motor 1/1/08) and for a
within an immunity conscious balancing of risks and benefits
of express or implied Vehicles § 123. single occurrence,
granted by statute. I.C. § and/or weighing of priorities.” Peavler v. Bd.
contract must be filed liability shall not
34-13-3-3 (1973). of Comm’rs of Monroe Cty., 528 N.E.2d 40
within ten (10) years. exceed $5,000,000.
(Ind. 1988).
Usual statutes of I.C. § 34-13-3-4.
limitation otherwise Any contributory negligence remains a
apply. I.C. § 34-13-1-1. complete defense to any claim under the
Tort Claims Act. I.C. § 34-51-2-2.
TORT CLAIMS ACT
(None or Citation)
Iowa Tort Claims Act.
The State may be held Iowa shall be liable to the same
liable for its negligence and A governmental entity is entitled to
extent as a private individual immunity only to the extent permitted by
the negligence of its under like circumstances. I.C.A.
employees while acting statute. Walker v. State, 801 N.W.2d 548
Claims against the § 669.4. (Iowa 2011).
with the scope of
employment. I.C.A. § State are barred This includes the negligence of Iowa retains immunity for claims arising out
669.5. unless notice is the State or its employees No punitive damages
of:
IOWA provided in writing acting under the scope of against the State. I.C.
The State shall defend, within two (2) years of (1) acts or omissions of a State employee in § 669.4.
employment while operating a
indemnify, and hold the claim. I.C.A. § the execution of a statute;
motor vehicle. Swanger v.
harmless any employee, 669.13. (2) discretionary functions; and
State, 445 N.W.2d 344 (Iowa
against any claim so long (3) any claim arising out of assault, battery,
1989); Starlin v. State, 450
as the employee’s conduct false imprisonment, misrepresentation.
N.W.2d 257 (Iowa Ct. App.
was not willful or 1989). See I.C. § 669.14 for more exceptions.
malicious. I.C.A. § 669.21
(1965).
No liability for: State’s liability shall
None.
(1) legislative functions; not exceed $500,000
Kansas Tort Claims Act. One case stretches the Governmental entities shall be (2) judicial functions; for claims arising out
120-day noticeliable for damages caused by a (3) failure to enforce a law; of a single occurrence
K.S.A. §§ 75-6101 - 75-
requirement for claims negligent act or omission of any (4) failure to exercise or perform a or accident.
6120 (1979).
against municipalities of its employees while acting discretionary function or duty on the part of
KANSAS Governmental entity liable to also apply for claimswithin the scope of Governmental entity
a governmental entity or employee.
for negligence unless against the State. employment under or its employees
See K.S.A. § 75-6104 for more exceptions. acting within the
exception in Act. Harris v. Christopher v. State ex circumstances where a private
Werholtz, 260 P.3d 101 rel. Kansas Juvenile person, would be liable. K.S.A. “Discretionary function” means more than scope of employment
(Kan. Ct. App. 2011). Justice Auth., 143 P.3d § 75-6103. use of judgment. Must involve element of shall not be liable for
685 (2006). policy formation. Clark v. Thomas, 505 punitive damages.
F.Supp.2d 884 (D. Kan. 2007). K.S.A. § 75-6105.
TORT CLAIMS ACT
(None or Citation)
The Board is empowered “to
investigate, hear proof, and to
compensate persons for Jurisdiction of the
damages sustained to either
The Board of Claims preserves sovereign Board is exclusive,
Kentucky Board of Claims person or property as a and a single claim
immunity for acts involving:
Act. proximate result of negligence may not exceed
on the part of the (1) discretionary acts or decisions;
The Board of Claims has All claims must be $200,000. If a single
Commonwealth (includes (2) executive decisions;
jurisdiction over civil filed with the Board of act results in multiple
employees’ negligence in (3) ministerial acts;
actions brought against the Claims within one (1) claims, the total
operating a motor vehicle). (4) actions in the performance of obligations
KENTUCKY Commonwealth, its year from the time the award may not
Johnson v. Kentucky State running to the public as a whole;
agencies, officers, and claim for relief exceed $350,000,
Police, 2010 WL 2788156 (Ky. (5) governmental performance of a self-
employees, while acting accrued. K.R.S. § equally divided
Ct. App. 2010). imposed protective function to the public or
within the scope of their 44.110. among the claimants,
citizen; and
employment. K.R.S. §§ The Board of Claims does not but no one claimant
(6) administrative acts.
44.070 and 44.072 (1986). have jurisdiction over claims may receive more
K.R.S. § 44.073. than $200,000. K.R.S.
made against State employees
in their individual capacity. § 44.070.
Spillman v. Beauchamp, 362
S.W.2d 33 (Ky. 1962).
In order for a State employee
to be a “covered individual”,
they must present the Attorney
General with a copy of the
Louisiana Governmental Suit must be brought $500,000 per person
complaint, who will then Liability shall not be imposed on public
Claims Act. in Louisiana State for personal injury or
determine whether the entities or their officers or employees based
Court. La. R.S. § wrongful death. La.
La. R.S. §§ 13:5101- 5113 individual was within their upon the exercise or the failure to exercise
13:5106. R.S. § 13:5106(B).
(1975). scope of employment during their policymaking or discretionary acts
The notice deadline the cause of action. La. R.S. § when such acts are within the scope of their Money for medical
LOUISIANA The State, a State agency, for a suit against the 13:5108.1. care post-judgment
or a political subdivision lawful powers and duties except for acts not
State is the equal to reasonably related to governmental placed in reversionary
shall not be immune from The State will be liable for the
the normal statute of objectives and acts which constitute trust which goes back
suit and liability for injury negligent operation of a motor
limitations for that criminal, fraudulent, or intentional to political subdivision
to person or property. La. vehicle by an employee or
type of claim.La. R.S. § misconduct. La. R.S. § 9:2798.1. if not used. La. R.S. §
Const. Art. XII, § 10. officer done within the scope
13:5108. 13:5106(B)(3).
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.
TORT CLAIMS ACT
(None or Citation)
$400,000 per single
Maine Tort Claims Act. occurrence. M.R.S.A.,
Every claim against a
M.R.S.A., Tit. 14, §§ 8101 – governmental entity Except as otherwise expressly provided by Tit. 14, § 8105.
8118 (1977). or its employees is A governmental entity is liable statute, all governmental entities shall be Except as otherwise
Except as otherwise forever barred unless for its negligent acts or immune from suit on any and all tort claims. provided, personal
provided in the statutes, all an action therein is omissions in its ownership, Me. Rev. Stat. Tit. 14, § 8103. liability of an
governmental entities are begun within two maintenance or operation of: employee is limited to
A governmental entity is not liable for any
immune from suit on any years after the cause (1) motor vehicle; $10,000 for any such
claim which results from:
MAINE and all tort claims seeking of action accrues. (2) unimproved land; and claims arising out of a
recovery of damages. If M.R.S.A., Tit. 14, § (1) legislative acts;
(3) land, buildings, structures, single occurrence.
immunity is removed by 8110. facilities or equipment (2) judicial acts; M.R.S.A., Tit. 14, §
the Tort Claims Act, a claim designed for use primarily by (3) discretionary acts (except if the act 8104-D.
Written notice shall be
for damages must be the public. involves operating a motor vehicle).
filed within 180 days No judgment against
brought subject to the
after any claim or See M.R.S.A., Tit. 14, § 8104-A. See M.R.S.A., Tit. 14, § 8104-B for more governmental entity
limitations contained in
cause. M.R.S.A., Tit. exceptions. shall include punitive
the Act. M.R.S.A., Tit. 14, §
14, § 8107. damages. M.R.S.A.,
8103.
Tit. 14, § 8105.
Immunity of the State is waived
A claimant may not for tortious acts of State The liability of the
institute an action personnel while acting within State and its units
against the State the scope of public duties may not exceed
unless: which shall include, but not be $400,000 to a single
Maryland Tort Claims Act. limited to:
(1) the claimant claimant for injuries
Md. Code. Ann., State Immunity of the State is not waived for any
submits a written (1) any authorized use of a tortious act or omission of State personnel
arising from a single
Gov’t §§ 12-101 - 12-110.
claim to the Treasurer State-owned vehicle by State that:
incident or
The immunity of the State within one year; personnel, including, but not occurrence.
MARYLAND and of its units is waived as (2) the Treasurer or limited to, commuting to and (1) is not within the scope of the public Md. Code, State Gov’t
to a tort action, in a court designee denies the from the place of employment; duties of the State personnel; or § 12-104.
of the State. claim; or (2) services (defined by § 12- (2) is made with malice or gross negligence.
The State and its
Md. Code, State Gov’t § (3) the cause of action 101) to third parties performed Md. Code, Cts. & Jud. Proc. § 5-522. officers and units are
12-104 (1984). by State personnel in the
is filed within three course of participation in an not liable for punitive
years after it arises. approved clinical training or damages.
Md. Code, State Gov’t academic program. Md. Code, Cts. & Jud.
§ 12-106. Md. Code, Cts. & Jud. Proc. § 5- Proc. § 5-522.
522.
TORT CLAIMS ACT
(None or Citation)
The State shall not be liable for any claim State not liable for
based upon an act or omission: interest prior to
State shall be liable for injury or (1) in the execution of a statute; judgment or for
loss of property caused by the (2) discretionary acts; or punitive damages.
Claim must be negligent or wrongful act or (3) arising out of an intentional tort, assault, Liability of the State
presented in writing omission of any public libel, slander, or misrepresentation. shall not exceed
Massachusetts Tort Claims
within two years after employee while acting within $100,000. M.G.L.A.
Act. See other exceptions at M.G.L.A. 258, § 10.
MASSACHUSETTS the date upon which the scope of employment, in Ch. 258, § 2.
M.G.L.A. Ch. 258, § 2 to § the cause of action the same manner and to the Tort Claims Act is not to be construed Claims against the
14 (1978). arose. M.G.L.A. Ch. same extent as a private restrictively for motor vehicles. Cop driving Massachusetts Bay
258, § 4. individual under like vehicle owned and registered to State, Transportation
circumstances. M.G.L.A. Ch. caused accident while “on call.” Tort Claims Authority are not
258, § 2. Act was ruled not to apply since cop was not subject to the
acting within scope of employment. Clickner $100,000 limit.
v. City of Lowell, 663 N.E.2d 852 (1996). M.G.L.A. Ch. 258, § 2.
TORT CLAIMS ACT
(None or Citation)
Notice of claim must The State is immune from tort
Governmental Tort be filed within 120 liability if engaged in the
Liability Act. days and served on exercise or discharge of a Specific exceptions to immunity:
the municipal governmental function. A State
M.C.L.A. §§ 691.1401 (1) maintenance of public highways (knew or
employee appointed employee will be immune from
through 1419 (1986). should have known of defect), M.C.L.A. §
to accept service of tort liability if: 691.1402;
Governmental agency complaints, (extended (1) acting or reasonably (2) negligent operation of a government-
(including state) is immune up to 180 days if believes they are acting within owned motor vehicle,* M.C.L.A. § 691.1405; None
if engaged in a disability). Substantialthe scope of employment; (3) public building defects, M.C.L.A. §
governmental function compliance is okay. (2) the governmental agency is Punitive damages are
691.1406;
(activity mandated or M.C.L.A. § 600.1404. engaged in the exercise of a generally not
(4) performance of proprietary functions by
authorized by constitution, All claims must be governmental function; or government entities, M.C.L.A. § 691.1413; recoverable unless
MICHIGAN
statute, local charter or filed with the Clerk of (3) does not involve gross (5) medical care or treatment provided to a authorized by statute.
ordinance, or other law). the Court of Claims negligence or an intentional patient, M.C.L.A. § 691.1407(4); and Casey v. Auto Owners
M.C.L.A. §§ 691.1407(1). within one year after act. M.C.L.A. § 691.1407. (6) sewage disposal system events, M.C.L.A. Ins. Co., 729 N.W.2d
such claim has Immunity does not apply when § 691.1417. 277 (2006).
Governmental immunity is
to be broadly construed, accrued. M.C.L.A. § engaged in a proprietary *Municipal employee’s personal liability
unless a narrowly drawn 600.6431. function (any activity which is when driving his own vehicle or the
exception applies in a Court of Claims has conducted primarily for the municipality’s vehicle is restricted to actions
claim. Nawrocki v Macomb exclusive jurisdiction purpose of producing a found to be “grossly negligent.” Alex v.
County Road Comm., 615 over claims made pecuniary profit for the Wildfong, 594 N.W.2d 469 (Mich. 1999).
N.W.2d 702 (Mich. 2000). against the State. governmental agency). M.C.L.A.
M.C.L.A. § 600.6419. § 691.1413.
State will pay for property The State and its employees are not liable $500,000 per person;
damage or personal injury for losses caused by: $1,500,000 per
caused by an act or omission of occurrence after July
(1) an act or omission of a state employee
Notice is required a State employee while acting
Minnesota Tort Claims exercising due care in the execution of a 1, 2009. M.S.A. §
within 180 days after within scope of employment 3.736.
Act. statute or rule;
MINNESOTA the alleged loss or under circumstances where the
(2) discretionary functions; or No punitive damages.
M.S.A. § 3.736 (1976). injury is discovered. State, if a private person,
(3) conditions of highways or public If liability insurance,
M.S.A. § 3.736. would be liable to the claimant,
buildings, except if caused by employee limits of insurance are
whether arising out of a
negligence. the maximum. M.S.A.
governmental or proprietary
function. M.S.A. § 3.736. See M.S.A. § 3.736 for other exclusions. § 3.736.
TORT CLAIMS ACT
(None or Citation)
Notice of claim must
be filed with chief
The State and its employees preserve their
executive officer of
immunity for claims caused by:
the governmental
entity at least 90 days (1) a legislative or judicial action or inaction;
Mississippi Tort Claims before instituting suit. (2) an act or omission of a State employee
Act. The immunity of the State and exercising due care in the execution of a The State’s liability
M.C.A. § 11-46-11(1).
M.C.A. §§ 11-46-1 through its political subdivisions from statute or rule; shall not exceed
11-46-23 (1984). Suit must be claims arising out of the torts of (3) police/fire protection (unless reckless);$500,000 for all
commenced within such governmental entities and claims arising out of a
(4) discretionary function (official required to
MISSISSIPPI State waives immunity for one (1) year after the the torts of their employees single occurrence.
use judgment or discretion).
tort and contract claims, date of the tort. while acting within the scope of The State will not pay
subject to statutory See M.C.A. § 11-46-9 for other exceptions.
M.C.A. § 11-46-11(3). their employment is hereby punitive damages.
exceptions. M.C.A. § 11- waived. M.C.A. § 11-46-5. Immunity will not be granted to a State M.C.A. § 11-46-15.
46-5. Bodily injury and
employee when they negligently operate a
property claims must
motor vehicle outside of a discretionary
be brought within
function. Mixon v. Mississippi Dep’t of
three (3) years after
Transp., 183 So.3d 90 (Miss. Ct. App. 2015).
injury is discovered.
M.C.A. § 11-15-49.
The immunity of the State is
waived in these instances: Claims shall not
(1) injuries resulting from State The Commissioner of Administration and the exceed $2,000,000 for
Claims against the employee’s negligent act or governing body of each political subdivision claims arising out of a
State shall be brought omission while operating a of the State may purchase liability insurance single occurrence and
Missouri Tort Claims Act. to the Commissioner motor vehicle within the scope for tort claims, made against the State or the shall not exceed
Mo. Stat. §§ 537.600 - of Administration, for of employment; political subdivision. $300,000 for any one
MISSOURI 537.650 (1978). approval, within two (2) injuries caused by the person in a single
years after such claim dangerous condition of a State- Immunity is waived up to the extent of the accident or
Tort immunity not waived. coverage provided in the policy or self- occurrence.
accrues. Mo. Stat. § owned property; and
33.120. (3) Contract claims. insurance plan.
The State will not pay
Mo. Stat. § 537.600; Kunzie v. Mo. Stat. § 537.610. punitive damages.
City of Olivette, 184 S.W.3d 570 Mo. Stat. § 537.610.
(Mo. 2006).
TORT CLAIMS ACT
(None or Citation)
Complaint must first The State is not liable

be presented in for tort claims in
writing to Department excess of $750,000
of Administration. The State is subject to liability for for each claim and
The State shall not be liable for certain
Department must its torts and those of its $1.5 million for each
legislative, judicial, and gubernatorial
Montana Tort Claims Act. grant or deny the employees acting within the occurrence. Mont.
actions. Mont. Stat. §§ 2-9-111 through 2-9-
MONTANA Mont. Stat. §§ 2-9-101 claim within 120 days. scope of employment or duties Stat. § 2-9-108.
113.
through 2-9-114 (1973). whether arising out of a The State and other
Upon receipt of the See Mont. Stat. § 2-9-108 for other
governmental or proprietary governmental entities
claim, the statute of exceptions.
function. Mont. Stat. § 2-9-102. are immune from
limitations is tolled for
120 days. exemplary and
punitive damages.
Mont. Stat. § 2-9-301. Mont. Stat. § 2-9-105.
The State shall be liable in the
same manner and to the same
extent as a private individual
Claims shall be forever under like circumstances. Neb. The State does not waive its immunity for
barred unless the Rev. Stat. § 81-8,215. claims involving:
claim is made in Injury to any innocent third (1) a discretionary function or due care in
Nebraska Tort Claims Act.
writing to the Risk party proximately caused by the execution of a statute; or
NEBRASKA Neb. Rev. Stat. §§ 81-8,209 None
Manager within two the action of a law (2) assault, battery, false imprisonment, or
- 81-8,239.11 (1969). years after such claim enforcement officer employed misrepresentation.
accrued. Neb. Rev. by the State during vehicular See Neb. Rev. Stat. § 81-8,219 for other
Stat. § 81-8,227. pursuit, damages shall be paid exceptions.
to such third party by the State
employing the officer. Neb.
Rev. Stat. § 81-8,215.01.
TORT CLAIMS ACT
(None or Citation)
No action may be brought against the State
or its employees which are based upon:
(1) an act or omission of an officer or
A claim must be filed
Nevada hereby waives its employee exercising due care, in the
with the Attorney
immunity from liability and execution of a statute, or in the performance
General within two Damages against the
action and consents to have its of a discretionary act;
Nevada Tort Claims Act. years after the cause State may not exceed
liability determined in (2) failure to inspect any building, structure,
of action accrues. the sum of $100,000.
NEVADA N.R.S. §§ 41.031 through accordance with the same rules vehicle, street, public highway or other
Filing a claim is not a The State will not pay
41.0337 (1965). of law as are applied to civil public work, to determine any hazards,
condition precedent to punitive damages.
actions against natural persons, deficiencies or other matters, whether or
bringing an action N.R.S. § 41.035.
except as otherwise provided. not there is a duty to inspect;
against the State.
N.R.S. § 41.031. (3) an injury sustained from a public building
N.R.S. § 41.036.
or public vehicle by a person who was
engaged in any criminal act.
N.R.S. § 41.032, § 41.033 and § 41.0334.
Suit against State must
All claims arising out
be commenced within
State generally waives its of single incident shall
three years. Written State does not waive its immunity for claims be limited to an
notice must be immunity to tort liability. N.H. involving:
Rev. Stat. § 541-B:2, § 541-B:9, award not to exceed
presented to the (1) the exercise of a legislative or judicial $475,000
Claims Against the State. § 541-B:9-a. per
agency within 180 function; claimant and
N.H. Rev. Stat. §§ 541-B:1 days of the injury. N.H. Immunity also waived as to
Rev. Stat. § 541-B:14. (2) an act or omission of a State employee, $3,750,000 per any
to 541-B:23 (1985). contract liability. N.H. Rev. Stat. or official when exercising due care in the single incident, or the
NEW HAMPSHIRE Sovereign immunity deeply Claims made against § 491:8. execution of any statute; proceeds from any
entrenched. Krzysztalowski the State for less than A claim against the State for (3) discretionary function (involves executive insurance policy,
v. Fortin, 230 A.2d 750 $5,000 are to be heard the negligent use of a motor or planning function); and whichever amount is
(N.H. 1967). by the Board of Claims vehicle is allowed since the greater.
for the State. Any (4) an intentional tort, assault, libel, slander,
State has purchased insurance. misrepresentation. The State will not pay
claim against the State State v. Brosseau, 470 A.2d 869
N.H. Rev. Stat. § 541-B:19. punitive damages.
in excess of $5,000 (1983). N.H. Rev. Stat. § 541-
shall be heard by the
B:14.
Superior Court.
TORT CLAIMS ACT
(None or Citation)
No Dollar Caps
New Jersey Tort Claims Limitations on liability: No subrogation
Act. A claim against a
“public entity” for Public entity liable for: • A discretionary function (involves policy allowed against “a
N.J.S.A. §§ 59:1-1 through death or for injury or judgment or determining resources or public entity or public
59:12-3 (1972). • Condition of property if employee.” N.J.S.A. §
damage to person or when or whether to purchase equipment,
dangerous condition and 59:9-2(e).
“Public entity” includes all to property shall be construct or maintain facilities, hire
failure to take action
counties, municipalities, presented not later personnel or provide adequate services). No recovery for pain
“palpably unreasonable.”
districts, and other political than the 90th day after N.J.S.A. § 59:2-3. and suffering, but this
N.J.S.A. § 59:2-3.
subdivisions. N.J.S.A. § accrual of the cause of • Adopting or failing to adopt a law or by limitation on recovery
• Sewer back up if
59:1-3. action. failing to enforce any law. N.J.S.A. § 59:2- unless permanent
maintenance program was
NEW JERSEY Six (6) months after 4. loss of bodily
Immunity waived. A palpably unreasonable or
notice has been • Failure to make an inspection, or negligent function, permanent
“public entity” is liable for negligence in performance.
received, suit may be • Ministerial or operational inspection of any property. N.J.S.A. § 59:2- disfigurement or
injury caused by an act or 6.
filed. dismemberment
omission of a public functions.
• Crime, actual fraud, actual malice, or when medical
employee in the same Suit must be filed Negligent operation of motor
willful misconduct. N.J.S.A. § 59:2-10. expenses are in
manner and to the same within two (2) years vehicle. Gruschow v. New
after the date of Jersey State Highway Dep't, • Discretion in decision-making or excess of $3,600.
extent as a private
accrual. prioritizing needs when faced with
individual unless there is 152 A.2d 150 (N.J. App. 1959). Punitive damages
budgetary issues.
exception in Act. N.J.S.A. § N.J.S.A § 59:8-8. cannot be awarded.
59:2-2. See N.J.S.A. § 59:2-5 for other exceptions. N.J.S.A. § 59:9-2 (c)
and (d).
TORT CLAIMS ACT
(None or Citation)
Liability of State for a
single occurrence
shall not exceed:
(1) $200,000 for
damage to or
Exclusions to the Tort Claims Act include: destruction of real
Written notice must (1) negligence of public employees within property;
be provided within 90 the scope of their duties in the operation or (2) $300,000 for past
days after the Tort Claims Act shields the maintenance of any motor vehicle, aircraft and future medical
occurrence. N.M.R.A. State and public employees or watercraft (N.M.R.A. § 41-4-5); and expenses;
Tort Claims Act. § 41-4-16. from liability for torts except (2) negligence of public employees within (3) $400,000 for all
NEW MEXICO N.M.R.A. §§ 41-4-1
through 41-4-30 (1976). Action against the when immunity is specifically the scope of their duties in the operation or damages other than
State must be brought waived. N.M.R.A. §§ 41-4-1 and maintenance of any building, public park, real property damage
within two years after 41-4-4. machinery, equipment or furnishings and medical
the occurrence. (N.M.R.A. § 41-4-6). expenses; and
N.M.R.A. § 41-4-15. See N.M.R.A. §§ 41-4-4 through 41-4-12 for (4) total liability for a
other exceptions. single occurrence
shall not exceed
$750,000.
State will not pay
punitive damages.
N.M.R.A. § 41-4-19.
TORT CLAIMS ACT
(None or Citation)
If governmental act involved, no liability
New York Court of Claims Written notice of even if there was malice or special duty
State immune when owed to plaintiff as opposed to mere public
Act. intention to file claim performing governmental act duty (Public Duty Defense). Special duty
N.Y. Ct. Cl. Act §§ 8 – 12 must be filed and (legislating, judging, or making
(1929). served on Attorney formed in three ways:
discretionary decisions) as
State waives immunity and General within 90 days (1) Statute for class of persons;
opposed to proprietary act (act None
consents to being sued in (6 months for breach substitutes for or supplement (2) Assumption of duty toward person (most
of contract claims). common); and No punitive damages
the same manner as a traditionally private
N.Y. Ct. Cl. Act § 10. allowed.
private person would, so enterprises). (3) Assume direction and control in face of
NEW YORK long as requirements of Specific requirements Wang v. N.Y. State
known safety violation.
Proprietary acts include: Dep’t of Health, 933
the Court of Claims Act are for filing claim. N.Y. Ct. If ministerial act, plaintiff must still show a N.Y.S.2d 503 (N.Y.
complied with. Cl. Act § 11. • Rents real property;
special duty existed. McLean v. City of New Sup. Ct. 2011).
Parallel statute deals with Court of Claims has • Health care;
York, 905 N.E.2d 1167 (N.Y. App. 2009) (duty
Port Authority almost exclusive jurisdiction • Operating school; and
trumps all else).
identically. over claims against • Operating vehicle.
If governmental act and special duty exists,
N.Y. Unconsol. Law §§ State but not city, Morell v. Balasubramanian, 514
no immunity if act was ministerial. If
7101 to 7112. county or town. N.E.2d 1101 (1987).
discretionary, government must actually
have exercised its discretion to be immune.
Claims against the
State must be filed Contributory negligence by the claimant bars
Claim for Injury and
with IndustrialThe Tort Claims Act covers all recovery under the State Tort Claims Act.
damage to any one
Accident Commission claims arising as a result of the N.C.G.S.A. § 143-299.1; Oates v. N. Carolina
person capped at
North Carolina Tort Claims within three (3) years negligence of any officer, Dep’t of Motor Vehicles, 24 N.C. App. 690,
$1,000,000 less any
Act. of the accident. employee, involuntary servant, 212 S.E.2d 33 (1975).
NORTH commercial liability
or agent of the State while
CAROLINA N.C.G.S.A. § 143-291 If death results, claim acting within the scope of his Intentional acts are not compensable. White insurance purchased
(1951). must be filed within office, employment, service, v. Trew, 366 N.C. 360, 736 S.E.2d 166 (2013). by the State that is
two years by personal agency or authority. N.C.G.S.A. applicable to the
Claims are brought before the Industrial
representative of the § 143-291. claim. N.C.G.S.A. §
Commission, reviewable by Superior Court.
deceased. 143-299.2.
N.C.G.S.A. § 143-291.
N.C.G.S.A. § 143-299.
TORT CLAIMS ACT
(None or Citation)
State waives immunity for both
tort and contract claims. State
liable for an injury caused by:
Suit against State must
be commenced within (1) negligence of employee Recovery limited to a
three years. N.D.C.C. § acting within scope of total of $250,000 per
32-12.2-02. employment (including person and
operating motor vehicles); or N.D.C.C. § 32-12.2-02(3) lists claims for $1,000,000 for any
Claims Against The State. Written notice must (2) use or condition of tangible which a State employee is not liable. (e.g., number of claims
be presented in property, if employee would be legislative, quasi-legislative, public duties, arising from a single
NORTH DAKOTA N.D.C.C. §§ 32-12.2-01 to collection of taxes, environmental occurrence
32-12.2-18 (1995). writing to the Director personally liable if a private and
of the Office of person would be liable under contamination, liability assumed under prohibits punitive
Management and the circumstances. N.D.C.C. § contract except for rental vehicles, etc.). damages in actions
Budget within 180 32-12.2-02. against the State.
days. N.D.C.C. § 32- N.D.C.C. § 32-12.2-02.
12.2-04. Employee cannot be personally
liable. This includes operation
of a motor vehicle. N.D.C.C. §
32-12.2-03.
TORT CLAIMS ACT
(None or Citation)
No subrogation
Plaintiff must attempt claims. Damages
to have claim reduced by other
compromised or collateral source
satisfied by the State’s State waives immunity and recoveries received
liability insurance. by the claimant. Ohio
consents to be sued and have
No jury trial in Court of Claims. Ohio Rev. Rev. Code §
If State does not its liability determined in the Code § 2743.11; Loc.R. 6 of the Court of 2743.02(D).
compromise within a Court of Claims by the same Claims.
Court of Claims. reasonable time (at rules as a suit between private No Punitive Damages
Ohio Rev. Code §§ 2743.01 least 60 days) before parties. Ohio Rev. Code § Settlements must be approved by Attorney State may, but is not
- .03 (1985). SOL expires, or if the 2743.02(A)(1). General and the Court of Claims. Ohio Rev. required to, insure its
amount of the claim Claims allowed against State Code § 2743.16. employees for
OHIO Court of Claims – Practice exceeds the State’s for negligence operation of
and Procedure. State immune from liability for claims arising operation of motor
liability insurance motor vehicle driven by State out of the performance or nonperformance vehicles.
Ohio Rev. Code §§ 2743.11 coverage, plaintiff may employee, even if driving own of a public duty. Ohio Rev. Code § Any such insurance
to 2743.20. commence an action. personal vehicle. Ohio Rev. 2743.02(3)(a). must be provided by
Ohio Rev. Code Ann. § Code § 2743.16(B).
Subrogation claims not permitted. Ohio Rev. the Department of
2743.16(B). State employee cannot be sued
Code § 2744.05(B). Administrative
Two (2) year statute of personally unless not in scope Services (DAS)
limitations on actions of employment. through the Office of
against State. Ohio Risk Management
Rev. Code § (ORM).
2743.16(A). Ohio Rev. Code §
9.83.
TORT CLAIMS ACT
(None or Citation)
Property Claims:
Thirty-seven (37) exceptions where State not $25,000.
Notice of claim within liable for torts of State employees acting in
one (1) year after loss. scope of employment: Other Losses:
51 Okla. Stat. § 156(B). State employee acting in scope $175,000 per person.
of employment is liable for loss (1) legislative functions;
Oklahoma Governmental Notice filed CMRRR unless falls under exceptions ($200,000 for medical
(2) discretionary acts such as policy decisions negligence). $1
Tort Claims Act. with Risk Management (General Waiver of Immunity). (limited). “Planning-operational” approach million per
51 Okla. Stat. § 151 – 200 Administrator of the 51 Okla. Stat. § 152.1(A). to understanding the scope of this exception occurrence. 51 Okla.
(1978). Office of Public Affairs. to liability;
51 Okla. Stat. § 152.1(A) 51 Okla. Stat. § 156(C). No subrogation claims allowed Stat. § 154(A).
OKLAHOMA against State. 51 Okla. Stat. § (3) natural snow or ice conditions; No punitive damages.
adopts sovereign Suit may be filed once 155(28).
(4) absence, condition, location or Several liability only.
immunity. claim denied (deemed
malfunction of traffic sign unless not
51 Okla. Stat. § 152.1(B) denied if not approved Liable for operation of motor 51 Okla. Stat. § 154.
vehicles. However, liability corrected within reasonable time after If insurance, policy
waives immunity as within 90 days).
limited to amount of liability notice; terms govern rights
provided in the Act. Plaintiff has 180 days insurance purchased. 51 Okla.
(5) subrogation claim; and and obligations of
after 90-day period to Stat. §§ 157.1-158.2.
file. 51 Okla. Stat. § (6) any loss to person covered by workers’ State. 51 Okla. Stat. §
157. compensation. 158.
See 51 Okla. Stat. § 155 for more exceptions. No subro claims. Okla.
Stat. § 155(28).
TORT CLAIMS ACT
(None or Citation)
Personal Injury:
Action must be $2,073,600 Per
commenced within Person. $4,147,100
two (2) years. O.R.S. § Per Occurrence.
30.275(9). Exceptions to liability:
Oregon Tort Claims Act is Property Damage:
Notice of claim to the (1) injury covered by workers’
limited waiver of sovereign $113,400 Per Person.
office of the Director compensation;
immunity. $566,900 Per
Tort Actions Against Public of the Oregon (2) exercise of discretionary function* or Occurrence. O.R.S. §§
Bodies (a/k/a Oregon Tort Department of Every public body subject to duty; and
liability for its employees’ and 30.271(4), 30.272(4),
OREGON Claims Act). Administrative (3) act under apparent authority of law. 30.273(3).
Services within 180 agents’ torts committed within
O.R.S. §§ 30.260 - 30.300 O.R.S. § 30.265(6). Claims which are
days. the scope of their employment,
(1967). subject to the OTCA
including operation of motor *Discretionary function is policy-making
No particular form for vehicles. decision (policy judgment). Negligent are not subject to
notice. Provide time, O.R.S. § 30.275. implementation of policy is not immune. No O.R.S. § 30.710,
place, circumstances, immunity if duty to act. setting limit of
damages, contact $500,000 for non-
information. O.R.S. § economic damages in
30.275. civil actions. O.R.S. §
30.269(2).
Sovereign Immunity Act waives
Notice of Intention to
Commonwealth immunity for
Make Claim against
damages arising out of a
“Commonwealth $250,000 Per Person.
Pennsylvania Sovereign negligent act where the
Party” must be made $1,000,000 Per
Immunity Act. damages would be recoverable
within six months Occurrence.
by private person. 42 Pa. C. S. § Exceptions to sovereign immunity. Plaintiff
42 Pa. C.S. § 8501, et seq. after cause of action
8522(a). It includes: cannot recover under motor vehicle Can only recover:
(1988). accrued. 42 Pa. C.S. §
(1) motor vehicle operation; exception if fleeing apprehension of resisting
5522. (1) past and future
Commonwealth Court has (2) medical profession; arrest by a police officer. 42 Pa. C.S. §§
PENNSYLVANIA No notice needed (3) care, custody, control of 8522(b) and 8542(b). loss of earnings;
jurisdiction over civil
where “dangerous personal property; (2) pain and suffering;
actions brought against the No property damage recoverable under (3) medical expenses;
“Commonwealth condition” of real (4) real estate, highways,
potholes and dangerous conditions. 42 Pa. (4) loss of consortium;
government” with four estate, highways, and sidewalks;
C.S. § 8528(c)(5). and
specific exceptions. 42 Pa. sidewalks. Potholes (5) potholes and dangerous
require actual written conditions; (5) property losses.
C.S. § 761.
notice and time to fix. (6) control of animals; and 42 Pa. C.S. § 8528.
42 Pa. C.S. § (7) vaccines.
5522(a)(3).
Pa. C.S. § 8522(b).
TORT CLAIMS ACT
(None or Citation)
Damages may not
exceed $100,000.
R.I.G.L. § 9-31-2
(West).
Three (3) year statute Limit not applicable if
Governmental Tort State was engaged in
Liability Act. of limitation for any State’s sovereign immunity as
action against State. to tort actions and its 11th a proprietary function
R.I.G.L. § 9-31-1 (1970). R.I.G.L. § 9-1-25. Amendment immunity both or has agreed to
State liable for all actions There are few conditions on the State’s indemnify the federal
Notice of Claim must waived. Laird v. Chrysler, 460 consent to suit. Marrapese v. State, 500 F. government or any
RHODE ISLAND of tort in the same manner be given within three A.2d 425 (R.I. 1983). Supp. 1207 (D. R.I. 1980). agency. R.I.G.L. § 9-
as a private individual or (3) years from the Does not apply to proceedings
corporation unless 31-3.
date the cause of against State before
exception. R.I.G.L. § 9-31- action accrues. R.I.G.L. administrative agencies. State must secure $75
1. § 9-1-25. million insurance
policy covering
operation of
commuter rail
service. R.I.G.L. § 9-
31-3.
Two (2) year statute of
limitations; Three Statute lists non-exclusive list of 40
South Carolina Tort Claims years after Notice of exceptions to the general waiver of State
Act. Claim (year added to sovereign immunity, including, among
Statute of Limitations others:
S.C. Code § 15-78-10, et if notice procedure
seq. (1986). (1) legislative, judicial actions; $300,000 Per Person
followed). S.C. Code § (2) discretionary acts;
Sovereign immunity waived $600,000 Per
Limited waiver of 15-78-110. (3) natural snow or ice conditions;
(State liable) for all torts unless Occurrence
SOUTH CAROLINA sovereign immunity, Notice setting forth (4) authorized entry on property;
subject to exceptions. listed under exceptions to No Punitive Damages
the circumstances, (5) absence or condition of traffic sign or
State is liable for torts to waiver of immunity.
extent of loss, time barrier unless given reasonable notice to S.C. Code § 15-78-
the same extent as private and place, names of all repair; 120.
individual, subject to persons involved, and (6) claim against DOT allowed for improper
limitations. S.C. Code § 15- amount of loss, must maintenance but not faulty design; and
78-40. be filed within one (1) (7) any judicial proceeding.
year. S.C. Code § 15- S.C. Code § 15-78-60.
78-80.
TORT CLAIMS ACT
(None or Citation)
Whether a State employee, Factors to be considered in determining a
who is sued in an individual discretionary function include:
capacity, is entitled to (1) nature and importance;
immunity depends upon the (2) extent to which passing judgment on
function performed by the exercise of discretion passes judgment on
Remedies Against The employee. Immune branch of government;
State. discretionary function (involves (3) would liability impair free exercise of
S.D.C.L. §§ 21-32-1 to 21- policy-making power), but not discretion;
32-21 (1947). when they perform ministerial (4) likelihood of harm to members of public
function (“absolute, certain, if action taken;
South Dakota common law Written notice of the
and imperative” act simple (5) nature and seriousness of harm; and
and Constitution prohibit time, place, and cause
carrying out of a policy already (6) availability of other remedies.
that “governing acts” of of the injury is given to
established).*
SOUTH DAKOTA State, its agencies and the public entity Discretionary: Highway construction and None
other public entities can’t within 180 days after Wulf v. Senst, 669 N.W.2d 135 Maintenance; Allocating plows, resource and
be attacked in court the injury. S.D.C.L. § 3- (S.D. 2003). equipment for snow removal.
without the State's 21-2. *Even if discretionary function Ministerial: Once it is determined that act
consent. involved: State may purchase should be performed, subsequent
S.D. Const. Art. III, § 27; liability insurance. S.D.C.L. § 21- performance is ministerial. (e.g., operating
Blue Fox Bar, Inc. v. City of 32-15. motor vehicle).
Yankton, 424 N.W.2d 915 Purchase of insurance waives No immunity for breach of contract claims.
(S.D. 1988). immunity and is consent to be Masad v. Weber, 772 N.W.2d 144 (S.D.
sued. S.D.C.L. § 21-32-16. 2009).
State and its employees S.D.C.L. § 21-32-1 establishes the Office of
immune except as provided in Commissioner of Claims, which hears
§ 21-32-16; S.D.C.L. § 21-32-17. contract and tort claims against the State.
TORT CLAIMS ACT
(None or Citation)
Claims Commission has
exclusive jurisdiction to hear
claims against State, it is $300,000 for bodily
None applicable to the
limited to those claims listed in injury or death of any
State.
§ 9-8-307(a). one person in any one
Tennessee Claims accident, occurrence
Written notice of Common law negligence rules
Commission created to or act. $700,000 for
claim must be filed (on apply.
hear and adjudicate claims Purchase of liability insurance does not bodily injury or death
against State. T.C.A. §§ 9- Claim For Damages Otherwise State is immune. of all persons in any
Form) with Division of waive sovereign immunity. 1984 Tenn. Pub.
8-301 to 307 (1984). Claims allowed: Acts 972; Op. Tenn. Atty. Gen. 85-087 one accident. T.C.A. §
Claims Administration 9-8-307(3)(e).
Established State’s liability (1) operation of motor vehicle; (1985).
(DCA) within
in tort based on traditional (2) nuisances; Tennessee Governmental Tort Liability Act (§ No Punitive Damages
applicable statute of
concepts of duty and (3) dangerous conditions on 9-8-307) not applicable to State. Lucas v. Bowden Bldg. Corp. v.
TENNESSEE limitations.
reasonably prudent real property (foreseeable and State, 141 S.W.3d 121 (Tenn. App. 2004). Tennessee Real Estate
persons’ standard of care. DCA has 90 days to notice);
approve or deny. Then (4) legal/medical malpractice; If State is liable, employee is immune, unless Comm'n, 15 S.W.3d
Act restricts State to the outside scope of employment, intentional, 434, 446 (Tenn. App.
that jurisdiction (5) negligent care of persons or
defense of absolute or done for personal gain. T.C.A. § 29-20- 1999).
transfers to Tennessee property;
immunity only as an 310(b).
Claims Commission. (6) negligent construction of If claim exceeds
exception to Act’s broad
T.C.A. § 9-8-402. sidewalks/buildings; $25,000, Tennessee
abrogation of sovereign
(7) design and construction of Claims Administration
immunity. Lucas v. State,
roads; turns it over to State
141 S.W.3d 121 (Tenn.
(8) highway conditions; Attorney General to
App. 2004).
(9) negligent operation of investigate.
Machinery; and
(10) many others.
TORT CLAIMS ACT
(None or Citation)
State’s immunity is waived for:
Texas Tort Claims Act (1) use of motor vehicle;* State employees enjoy either absolute
(TTCA). Tex. Civ. Prac. & Rem. Code immunity (e.g., judges) or qualified immunity
Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1). (e.g., jailers, sheriffs, and other public
Ann. §§ 101.001–.109 Formal, written notice (2) injury caused by condition officers or employees).
(1965). no later than six or use of tangible personal or State employees’ qualified immunity applies
Absent a waiver of months after day the real property;** only to discretionary actions taken in good
immunity, governmental incident occurs, Tex. Civ. Prac. & Rem. Code faith within the scope of the employee’s
entities are generally reasonably describing: Ann. § 101.021(2); and authority.
immune from liability. (1) the damage or (3) claims arising from premises No qualified immunity for ministerial Bodily Injury/Death:
University of Tex. Sw. Med. injury claimed; defects. (mandatory) actions. $250,000 Per Person
Ctr. v. Estate of Arancibia, (2) the time and place Tex. Civ. Prac. & Rem. Code
of the incident; and State involved in joint enterprise is liable for $500,000 Occurrence
324 S.W.3d 544 (Tex. Ann. § 101.021(2).*** the torts of other members of the joint
TEXAS 2010). (3) the incident. Damage to Property:
*State only liable if employee enterprise.
TTCA is a limited waiver of Tex. Civ. Prac. & Rem. operating vehicle would have $100,000 occurrence
Code Ann. § Texas Dep’t of Transp. v. Able, 35 S.W.3d 608
sovereign immunity been liable. (Tex. 2000). Tex. Civ. Prac. Rem.
(qualified immunity) for 101.101(a). Code § 101.023.
**Liable only if private person
certain torts. “Actual notice” can would have been liable. This TTCA (Tex. Civ. Prac. & Rem. Code Ann. §
precludes suit predicated solely 101.022) says two additional liability
Unless there is a waiver of substitute.
limitations apply:
immunity in the TTCA, Tex. Civ. Prac. & Rem. on respondeat superior.
there is sovereign Code Ann. § Involves activities conducted (1) special defects (e.g., unusual danger);
immunity. 101.101(c). on real property, not defects in and
the real property. (2) Absence, condition or malfunction of
City of Denton v. Van Page,
***Claims involving premises traffic signs.
701 S.W.2d 831 (Tex.
1986). liability (defect in real property) Tex. Civ. Prac. & Rem. Code Ann. § 101.060.
brought under this section.
TORT CLAIMS ACT
(None or Citation)
Immunity waived as to:
Governmental entity immune (1) any act by employee in scope of
Written Notice of from latent condition of road, employment;
Utah Governmental Claim must be filed tunnel, bridge, sidewalk or any (2) contractual obligations;
Immunity Act (GIAU). within one year after public building or structure. (3) defective, unsafe condition of road, Property Damage:
U.C.A. §§ 63G-7-101 denial of claim. U.C.A. No liability (immunity not sidewalk, bridge, etc.; $233,600.
through 63G-7-904 (1963). §§ 63G-7-401. waived) for: (4) defect or condition of building, structure,
U.C.A. § 63G-7-
etc. (U.C.A. § 63G-7-301); and
“Governmental Entity” and Within sixty (60) days (1) “discretionary function” 604(1)(c).
(5) injury or damage resulting from
its employees retain of filing written Notice (distinct and limited immunity
employee driving or being in control of a Personal Injury:
immunity for all of Claim government for decision that involves
vehicle. $583,900.
“governmental functions” must approve or deny. policy-making function);
UTAH (defined as “activity, Then suit can be U.C.A. § 63G-7-202(3)(c)(2). U.C.A. § 63G-7-
See “Little Test” Little v. Utah,
undertaking, or operation brought. U.C.A. §§ 604(1)(a).
667 P.2d 49 (Utah 1983) (e.g., Three-part test to determine whether
of a governmental entity”) 63G-7-401, 402, 403. fire fighting). governmental entity enjoys immunity under $2 million limit to
no matter how labelled, Plaintiff has one (1) (2) assault, false imprisonment; the Governmental Immunity Act: aggregate amount of
unless expressly waived in year after denial of (1) whether the activity is a governmental individual awards for
Act. (3) negligent inspection;
claim or after the 60- function; single occurrence.
(4) judicial proceedings;
“Governmental Entity” day period ends to (2) whether governmental immunity was U.C.A. § 63G-7-
includes State and all its bring the action. Utah (5) operation or repair of flood waived for the particular activity; and 604(1)(d).
political subdivisions. Code Ann. §§63-G-7- systems; and (3) whether there is an exception to that
401, 402, 403. (6) many others. waiver.
U.C.A. § 63G-7-201. Winkler v. Lemieux, 329 P.3d 849 (Utah App.
2014).
TORT CLAIMS ACT
(None or Citation)
State and its employees liable
to same extent as private Exceptions to waiver of immunity set forth in
Notice of a claim individual, unless exception § 5601(e):
against a town for listed in insurance policy. Vt. (1) discretionary function: (a) involves either
insufficiency of a Stat. Ann. 12, § 5601(e). an element of judgment/ choice or a statute
bridge or culvert must or regulation prescribes a course of action,
Exclusive right of action is
be within 20 days. Vt. and (b) is it type of act protected by the
against State not employee Maximum liability of
Stat. Ann. 19, § 987. exception (presumption can be rebutted)?
(except for gross negligence, the State is $500,000
Personal injury and willful act). Vt. Stat. Ann. 12, § Searles v. Agency of Transp., 762 A.2d 812 to any one person
property claims must 5602(a)(b). (Vt. 2000) (e.g., no liability for operating and maximum
Vermont Tort Claims Act. be filed within 3 years. emergency vehicle pursuant to § 1015(a)(4)
State employees liable for aggregate liability is
VERMONT Vt. Stat. Ann. 12, §§ 5601- Vt. Stat. Ann. 12, §§ (with lights and siren); $2,000,000 to all
5606 (1961). operating motor vehicle
512(4) and 512(5). (2) any claim arising from selection of or persons arising out of
because source of their
Small claims ($2,000 employment is unconnected to purposeful deviation from standards for each occurrence.
or less) against State tort of negligent driving. planning and design of highways; and Vt. Stat. Ann. 12, §
must be filed within 18 Kennery v. State, 38 A.3d 35 (3) above exceptions do not apply if there is 5601(b).
months. Vt. Stat. Ann. (Vt. 2011). policy of insurance purchased by
32, § 932(b). Commissioner of Buildings and General
Small claim (under $2,000) Services or if employee purchased policy
Agent for service is against State not otherwise covering gross negligence.
Attorney General. allowed may be filed in Small
Claims Court. Vt. Stat. Ann. 32, No subrogation claims against State.
§ 932(a).
TORT CLAIMS ACT
(None or Citation)
Exceptions to waiver of immunity are listed
Commonwealth employee is in Va. St. § 8.01-195.3.
immune if act ministerial (1) Tax assessment;
(follows statute or established (2) Judicial Proceeding; and
Virginia Tort Claims Act. rules), but not discretionary
(use of judgment). Messina v. (3) Execution of Court Order.
Va. St. §§ 8.01-195.1 to Burden, 321 S.E.2d 657 (Va. Claims against Commonwealth for medical
195.9 (1981). Notice must be given 1984). negligence subject to Chapter 21.1 (Va. St. §
Provides a limited right to within one (1) year of 8.01-581.1, et seq.).
sue State employee when when claim accrued. Claims allowed include:
Recovery in medical malpractice shall not
a private entity or Va. St. § 8.01-195.6 Maintenance: Failure to exceed the limits imposed by Va. St. § 8.01-
individual would be liable, correct hazardous roadway 195.3.
Claim filed with conditions within reasonable
provided the State Immunity is waived
Director of the time. Immunity waived only for ministerial acts
employee is acting in up to $100,000 or the
Division of Risk (obedience to authority without regard to or
course and scope.
management or the General Hazards: Hazards the exercise of his or her own judgment) but amount of the State’s
Only partial waiver of Attorney General. created by design, not for discretionary acts, which have the insurance coverage,
VIRGINIA
sovereign immunity. construction, and maintenance following characteristics: whichever is greater,
Must contain nature problems (e.g., poor signing, exclusive of interest
Commonwealth is immune (1) an authorized individual or agency was
of claim, time and low shoulders). and costs. Va. St. §
from tort liability for acts given the power and duty to make a
place, name of agency Work Zones: Hazardous 8.01-195.3.
of employees, unless an decision;
at fault. construction and work zones
express statutory or (2) the decision was made from a set of valid
constitutional provision Must sue within 18 (involving motor vehicles). alternatives; and
waives that immunity. months of filing Operations: Hazards created by (3) the individual or agency exercised
Immunity of judges, notice. Va. St. § 8.01- general operations and work independent judgment in making the
attorneys, and public 195.7. zone activity that do not selection.
officers of Commonwealth involve motorists. No exception for intentional acts. No
is preserved. Operating Motor Vehicle: Is immunity if intentional tort or actions
ministerial act. outside scope of employment.
Heider v. Clemons, 400 S.E.2d Bailey v. Lewis, 2012 WL 9735223 (Va. Cir.
190 (Va. 1991). Ct. 2012); Messina v. Burden, 321 S.E.2d 657
(Va. 1984).
TORT CLAIMS ACT
(None or Citation)
Verified Notice of
Claim form must be
filed with Washington
Office of Risk No liability can be imposed against State for
Management prior to “discretionary acts” of State.
the expiration of the There is no immunity and State Evangelical United Brethren Church of Adna
Actions and Claims is liable if:
Against State. statute of limitations v. State, 407 P.2d 440 (Wash. 1965).
for the claim (running (1) police high speed chase; No caps or
R.C.W.A. § 4.92.090, et Guidelines used to determine if act limitations.
of Statute of (2) discharge of raw sewage “discretionary”:
seq. (1963).
Limitations not into river: and State liable for
Whether acting in affected). R.C.W.A. § (1) involve basic government policy,
(3) operating motor vehicle. damages arising out
governmental or 4.92.100. program, or objective;
of tortuous conduct,
proprietary capacity, State Rahman v. State, 1246 P.3d 182 (2) is act essential to realization of that whether acting in
WASHINGTON Must describe time, (Wash. 2011), overturned due
and its employees liable policy, program or objective; and governmental or
place, conduct and to legislative action.
for torts the same as (3) does act involve judgment? proprietary capacity,
circumstances of
private person. R.C.W.A. § No immunity for discretionary Policy-making is immune. to same extent as if it
injury, names of all
4.92.090. activities, unless the were a private person
witnesses and relevant Evangelical Church of Adna v. State, 407 P.2d
One of the broadest persons, amount of government could show that a or corporation.
440 (Wash. 1965).
waivers of sovereign damages, and address “policy decision.” King v. City of R.C.W.A. § 4.92.090.
immunity in the country. of claimant. Seattle, 525 P.2d 228 (Wash. Discretionary decisions must be made at a
1974). “truly executive level” rather than an
Suit cannot be filed operational level. Mason v. Bitton, 534 P.2d
until 60 days after 1360 (Wash. 1975).
standard tort claim
form filed. R.C.W.A. §
4.92.110.
TORT CLAIMS ACT
(None or Citation)
Courts have carved out exceptions to State authorized to

absolute grant of immunity including suits purchase liability
that seek recovery under and up to the insurance covering
State entities and officials are State’s liability insurance coverage. Univ. of State “property,
absolutely immune from policy- W. Virginia Bd. of Trustees ex rel. W. Virginia activities and
making acts and have qualified Univ. v. Graf, 516 S.E.2d 741 (W. Va. 1998). responsibilities.” W.
immunity for discretionary acts Va. Code § 29-12-5
The Board of Risk and Insurance
that do not violate clearly Management has control over all insurance State Board of Risk
Governmental Tort Claims
established rights and laws. covering State property, activities and and Insurance
Act.
Discretionary acts that do responsibilities. Management must
W. Va. Code § 29-12-1 to § purchase insurance
violate clearly established laws Each policy insuring the State must provide
29-12-1 (1957). Claim must be brought which “shall provide
which occur outside of the that the insurer is barred and estopped from
Article VI, § 35 of the West against State within that the insurer shall
public official’s scope of relying upon the constitutional immunity of
WEST VIRGINIA Virginia Constitution two years after cause be barred and
employment strip the official of the State of West Virginia against claims or
provides immunity to of action arose. W. Va. estopped from relying
his or her qualified immunity, suits.
State. “The State of West Code § 29-12A-6(a). upon immunity.”
but the State entity retains its
Virginia shall never be immunity. The State is protected from suits by
Limited by insurance
made defendant in any purchasing adequate insurance coverage.
If the official’s offending acts or coverage purchased
court of law or equity.” W. Va. Code § 29-12-5(a). by State Board of Risk
omissions occur within the
scope of the official’s Where policy is silent on whether State and and Insurance
employment, both the State its insurer can claim the benefit of immunity, Management.
entity and the official lose their the immunity of the State is determined by State ex rel. W.Va.
immunity. the qualified immunity of a public executive Dept. of Transp.,
official whose acts or omissions give rise to Highways Division v.
the case. Parkulo v. W. Virginia Bd. of Prob. Madden, 453 S.E.2d
& Parole, 483 S.E.2d 507 (W. Va. 1996). (W. Va. 1994).
TORT CLAIMS ACT
(None or Citation)
Three exceptions to immunity:
(1) Known danger exception: Situation so $50,000 for claims
against
dangerous that it is clear the police officer or municipal
State employee required to act in certain entities and their
The State and its employees way; employees; no
may be sued for “an act (2) Ministerial duty exception: State punitive damages
Claims Against growing out of or committed in employee required by law to act in specific allowed. Wis. Stat. §
Governmental Bodies, Written notice of the course of the discharge of way. (e.g., Wis. Stat. § 346.03 says 893.80(3).
Officers and Employees. claim must be served the officer’s, employee’s or emergency vehicles given certain privileges $250,000 for claims
Wis. Stat. §§ 893.80-.83 within 120 days. Wis. agent's duties.” Wis. Stat. § when light and siren on); and against the State and
(1987). Stat. § 893.80(1d)(a) 893.82(3). (3) Willful and wanton acts. its employees; no
WISCONSIN Qualified immunity for acts (for municipal entities With respect to claims against Lodi v. Progressive, 646 N.W.2d 314 (Wis. punitive damages
done in exercise of and employees); Wis. governmental entities, “so far 2002). allowed. Wis. Stat. §
legislative, quasi- Stat. § 893.82(3) (for as governmental responsibility 893.82(6).
the State and its for torts is concerned, the rule State employee is liable for performance of
legislative, judicial or ministerial, not discretionary duties. Is $250,000 limit for
quasi-judicial functions. employees). is liability - the exception is ministerial only when it is absolute, certain negligent operation of
(i.e., discretion). immunity.” Holytz v. City of and imperative, involving merely the any municipal (except
Milwaukee, 17 Wis.2d 26, 39, performance of a specific task when the law vehicles not required
115 N.W.2d 618 (1962). imposes, prescribes and defines the time, to be registered
mode and occasion for its performance with [$50,000] per §
such certainty that nothing remains for 345.05(1)(bm)). Wis.
judgment or discretion.” Pries v. McMillon, Stat. § 345.05.
784 N.W.2d 648 (Wis. 2010).
TORT CLAIMS ACT
(None or Citation)
Written Notice of
Claim must be Claims allowed for: The WGCA abolishes all judicially created Personal Injury:
presented with two (2) (1) Operating motor vehicle: categories such as governmental or $250,000 Per Person;
Wyoming Governmental years. Wyo. Stat. § 1- Wyo. Stat. § 1-39-105. proprietary functions and discretionary or $500,000 Per
Claims Act (WGCA). 39-113. ministerial acts previously used by the courts Occurrence
(2) Operating building or park:
Wyo. Stat. §§ 1-39-101 to Compliance with Wyo. Stat. § 1-39-106. to determine immunity or liability. State can purchase
121 (1979). Notice of Claim Exclusions from the waiver of liability are liability insurance in
(3) Airport: Wyo. Stat. § 1-39-
requirement no longer listed at W.S. 1-39-120: which case limits are
Except as provided in the 107
has to be alleged in extended to match
WYOMING WGCA, a governmental (4) Operating public utilities (1) defect in plan or design of bridge, culvert,
complaint. Brown v. limits of policy.
entity (i.e., state or local (gas, electric, water, etc.) and highway, road, street, sidewalk or parking
City of Casper, 248 Wyo. Stat. § 1-39-118.
government body) is ground transportation: Wyo. lot;
P.3d 1136 (Wyo.
granted immunity from 2011). Stat. § 1-39-108. (2) failure to construct or reconstruct bridge, Property Damage:
liability for any tort. Wyo. (5) Operating hospital: Wyo. culvert, etc.; and Claim must be less
Suit must be filed
Stat. § 1-39-104. within one (1) year of Stat. § 1-39-109. (3) maintenance, including maintenance to than $500.
written Notice of (6) Torts of police: Wyo. Stat. § compensate for weather conditions, of any Wyo. Stat. § 1-39-
Claim. Wyo. Stat. § 1- 1-39-112. bridge, culvert, etc. 118(f).
39-114.
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.

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MATTHIESEN, WICKERT & LEHRER, S.C.

Hartford, WI ❖ New Orleans, LA ❖ Orange County, CA

STATE SOVEREIGN IMMUNITY AND TORT LIABILITY IN ALL 50 STATES

Operation of Motor Vehicle

Highway Defect Statutes

Public Duty Doctrine

Federal Civil Rights Liability (42 U.S.C. § 1983)

California Tort Claims Act. Personal injury/

Complaint must first The State is not liable

Courts have carved out exceptions to State authorized to

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