State and Territorial Governments: Claims By and Against

Newsletter Type: Personal Injury

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Governmental entities are generally immune from liability for lawsuits in accordance with the principle of sovereign immunity. However, most states have enacted statutes that provide for waiver of such immunity for certain types of tort actions. Such statutes are generally referred to as state tort claims acts.

State tort claims acts limit the types of actions that may be filed against the states. States will generally only be liable for claims that arise out of the use of motor vehicles, the condition or use of real property, or the condition or use of personal property. The state tort claims acts also generally limit claims to the effective date of the acts. If an act or omission on the part of a state occurred prior to the effective date of the acts, the state is not required to waive its sovereign immunity.

Most state tort claims acts provide for a waiver of immunity for lawsuits that are brought against a "governmental unit." For purposes of those acts, a "governmental unit" is defined as the state and its agencies, including departments, bureaus, boards, commissions, offices, agencies, councils, and courts. A "governmental unit" may also include any political subdivision of the state, such as a city, a county, a school district, a water and sanitation district, or any other type of district. A "governmental unit" may further include a volunteer fire department, a rescue squad, or an emergency medical services provider. A private company is not considered to be a "governmental unit," even if it has entered into a contract to provide services to the state or its agencies.

Under state tort claims acts, states are generally liable for the negligence of their employees with regard to the employees' operation or use of motor vehicles or motor-driven equipment. Most state tort claims acts define the word "employee" as a person who is controlled and paid by a governmental unit. The term "employee" does not include independent contractors. A volunteer or someone who is not paid for his or her services to a governmental unit is not considered to be an employee for purposes of the acts.

A state will only be liable for its employees' negligent acts if the employees were acting within the scope of their employment. An employee is acting within the scope of his or her employment when he or she is performing a task on behalf of a governmental unit, which task has lawfully been assigned to the employee by a competent authority. The fact that an employee is off-duty does not mean that the employee is not acting within the scope of his or her employment. As long as the employee is engaged in an activity that he or she is required to perform as part of his or her job duties, the employee is acting within the scope of his or her employment. However, if the employee is not performing his or her job duties, the employee is not acting within the scope of his or her employment.

Under state tort claims acts, states will be liable for property damages, personal injury, or death that is proximately caused by their employees' use of motor vehicles or motor-driven equipment. However, the employees must be personally liable for the accident. If the employees are immune from liability, the states are also immune from liability. The employees do not need to be driving the motor vehicles or the motor-driven equipment in order for the states to be liable. If the employees were in control of the motor vehicles or the motor-driven equipment, the states are liable. Also, the states do not need to own the motor vehicles or the motor-driven equipment in order to be held liable.

Under state tort claims acts, states are liable for personal injury or death that is caused by a condition or use of personal or real property. Most state tort claims acts do not include liability for property damages as a result of the condition or use of personal or real property. The states must own or control the real or personal property in order to be liable. The condition or use of the property must be the proximate cause of the personal injury or the death. An intervening act that is intentional will preclude liability on the part of the states. Although misuse of personal property may be considered to constitute "use" of personal property, nonuse or the failure to provide personal property is not considered to constitute "use" of personal property for purposes of the acts.

A condition or use of real property under state tort claims acts generally involves real property defects or premises defects. Premises defects involve the real property itself and not an activity that is conducted on the real property. States have a duty, as do other private owners of real property, to not injure third parties by willful or wanton conduct or by gross negligence. A state is considered to be grossly negligent if an action or an omission involved an extreme degree of risk, if the state was aware of the risk, and if the state ignored the risk. If a state has actual knowledge of an unreasonable risk, it has a duty to warn third parties about the risk or the unsafe condition. If the state only has constructive knowledge of the risk, it has no duty to warn the third parties. However, if an injured person is an invitee or a person who paid to use the state's real or personal property, the state has a duty to keep the premises in a reasonably safe condition, to inspect the premises for defects, and to warn of any defects.

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