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Sovereign Immunity

This week the Georgia Court of Appeals threw out a 5.1 million dollar jury verdict against DeKalb County for the wrongful death of a twenty-one year old probationer when he fell off the back of a county garbage truck which he was assigned as part of his community service work. The reason the county prevailed as a matter of law is because of a doctrine known as “Sovereign Immunity” or as we used to call it in law school – “It’s Good to be the King.”

Sovereign immunity originated from English common law which ruled that since the King made the law, he could not be subject to the law. The practical reality that resulted from this was that the government cannot not be sued for negligence. This is not to say that the government was never negligent, but rather if you happened to be injured while struck by a passing fire truck, you could not sue the county that owned the fire truck.

Government lawyers often contend that the government provides services that no one else would risk doing – such as locking up prisoners, chasing criminals, putting out house fires, and stopping traffic. In exchange for these valuable civic duties, the government should not be subsequently liable if things go awry will carrying out these duties. Also, governments argue that they must protect limited government dollars that are collected from taxpayers.

At the same time, the average citizen who incurs property damage or personal injuries caused by a speeding police car might argue that the government should carry insurance to pay for damages caused by negligence just like everyone else.

These two perfectly valid arguments merged over the last few years to form an exception to the general rule of sovereign immunity. The Georgia Tort Claims Act (which covers state government) allows for the waiver of sovereign immunity up to the limits of government procured insurance. The state is required by statute to carry up to one million dollars in liability coverage.

The Georgia Constitution was amended to allow for suits against counties or municipalities under certain conditions. Citizens injured by county vehicles may sue the county and recover up to the limits of the county’s required $250,000 insurance coverage. However, suing a county for acts of negligence that do not involve a covered automobile are still difficult.

The concept of sovereign immunity is in disfavor today, and most states have narrowed the application of sovereign immunity through statutes and constitutional amendments. Sovereign immunity has eroded indirectly as well as suits against governmental employees may be allowed where the government entity itself cannot be named. Practically, the government then provides a defense and insurance coverage to the employee named in the suit.

However, because sovereign immunity is the rule, and the exception is carved out by statute or constitutional amendment, anyone seeking to sue the government for an act of negligence must follow the requirements of the statute to the letter. Government lawyers are well trained in tossing out plaintiff’s complaints that do not comply with the statute. And because the statutes are ones of “strict construction” there is no room for error in the plaintiff’s suit against the government.

In other words, if you have a potential claim against a government entity – be it federal, state, county or city, you had best check in with a lawyer right away. Many claims require that notice be given to the government within a short time period after the incident or the claim is waived. Notice requirements are defined by statute and must be met to the letter of the law. Any failure here may result in your claim being forever barred.

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