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Government Tort Claims

Many tort claims involve consideration of the potential liability of public entities and employees. Due to the expansive nature of modern governmental activities, it frequently happens that the activities of a public entity or officer contribute to injuries that would be compensable if caused by a private individual. Accordingly, it is important to be aware of both the availability of tort remedies against public entities as well as the statutory limitations thereon.

Analyzing Plaintiff’s Claim: Liability of Public Entities – To a great extent, the tort liability of public entities is still affected by the common law doctrine of sovereign immunity, which bars torts suits against public entities on the theory that the sovereign can do no wrong. This doctrine has been widely recognized throughout the United States, and in the broadest sense means that unless the immunity has been waived or abrogated by statute, a tort action against a public entity cannot proceed.

The extent to which a given jurisdiction has waived or altered the common law rule of sovereign immunity depends upon the substantive law of that jurisdiction. Most states have some form of “Public Liability Act” which specifies the circumstances under which governmental entities may be liable for tortious conduct; some states provide a broader consent to suit subject to the statutorily established immunities. In order to properly evaluate a case, our attorneys have become thoroughly familiar with the nature and extent of governmental tort liability in our particular jurisdiction.

There are certain recurring themes that characterize the substantive law of public entity tort liability. For example, a modified form of respondeat superior liability provides that a public entity is liable for the wrongful acts of a public employee committed within the scope of employment. This in turn means that the public entity may be vicariously liable for injuries caused by a public employee while negligently operating a motor vehicle.

In addition to vicarious liability situations, the public liability acts impose liability on the public entity in other recurring factual situations, as when the public entity is liable for the dangerous condition of public property or the failure to perform a statutorily mandated duty. Many of these direct liability cases may be substantially affected by statutory immunities as well as common immunity defenses.

Analyzing Plaintiff’s Claim Against Public Officers or Employees – In general, public officers and employees have not been afforded the broad protection that sovereign immunity supplies to the employer entities. At common law there was no overriding policy justifying immunity for officers or employees, and these individuals were liable for their own intentional or negligent torts. In a sense, the body of law regulating liability for these officers took the opposite path from that regulating public entities; the theory of general liability was supplemented with immunities that developed in order to assure the zealous prosecution of public business.

Nevertheless, an analysis of the liability of public officials now parallels the analysis undertaken with respect to public entities – the question is usually whether conduct for which liability would attach to a non-public tortfeasor is insulated by any statutory immunities in the particular jurisdiction.

Checklist: Analyzing Government Tort Liability Claims

By synthesizing the foregoing, it is possible to create a checklist to aid in the evaluation of government tort liability claims.

  1. If the case involves conduct by a public officer or an employee, would the conduct be tortious at common law?
  2. If the conduct would be tortious at common law, is the officer or an employee nevertheless immunized under local statute or constitutional provision?
  3. If the officer is otherwise liable, has the employing entity waived its sovereign immunity or otherwise consented to vicarious liability for the torts of its officers?
  4. If the action seeks to impose direct liability upon the public entity, has the entity waived sovereign immunity generally or provided a statutory basis for the particular action?
  5. If the entity has waived sovereign immunity or provided a statutory basis for the action, are there nevertheless statutory immunities affecting the plaintiff’s claim?
  6. In all cases, and having determined that the plaintiff’s claim against the public entity is viable and not subject to immunity preclusion, are there any limitations upon the scope of recoverable damages (e.g., most public entities are not liable for punitive damages)?

Defenses in Government Tort Liability Cases

Aside from the specialized structure of liabilities and immunities afforded by public liability statutes described above, most common law defenses apply in government tort liability cases.

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