What types of claims are
subject to the waiver?
Waivers of immunity also differ in scope
with regard to what types of claims are
permitted. With regard to claims against
the federal government, the Federal Tort
Claims Act waives immunity for claims
“caused by the negligent or wrongful act
or omission of any employee of the Gov-
ernment.” [ 28 U.S.C. § 1346(b)(1)]
This seemingly broad waiver allows
nearly all types of negligence claims, but
is limited by a subsequent section of the
Act that lists 13 exceptions to the waiver.
The most litigated of those exceptions
is the exclusion of claims involving dis-
cretionary functions. That is, the federal
government cannot be sued for claims
involving policy decisions.
Most states have adopted the “
discretionary function” exception in some
fashion, and have limited the waiver of
immunity to only those claims involving operational decisions. For example, a
claim alleging the failure to erect a stop
sign is not likely to succeed because the
government maintains immunity for discretionary decisions.
On the other hand, a claim for negligently erecting the stop sign may be permitted because the process by which the
sign is installed is operational in nature.
Understanding the difference and being able to frame a claim as “operational
negligence” will improve the likelihood of
In lieu of a broad waiver and accompanying list of exceptions, some jurisdictions have instead set forth waivers of immunity that are claim specific. In Texas,
the waiver of sovereign immunity applies
only to torts arising from publicly owned
vehicles, premises defects and injuries related to the use of public property. These
claim specific waivers may also exist in
addition to other waiver statutes.
For example, some jurisdictions have
Key Questions for a Potential
Sovereign Immunity Defense
With each new claim we navigate a myriad of potential obstacles to recovery. As subrogation professionals, we work to quickly identity these issues and evaluate the
best recovery strategy. In doing so, some obstacles may first appear
insurmountable, but later give way to the ever diligent subrogation
professional. One such obstacle is the concept of sovereign immunity.
While sovereign immunity does at
times prevent recovery, it does not automatically bar all claims against government entities and agencies. As a general
rule, government entities and agencies
enjoy the benefit of sovereign immunity
and cannot be sued absent consent. Immunity is sometimes waived by contract.
Additionally most governments have, to
some extent, waived immunity by statute
and have agreed to be held liable for certain claims.
Understanding the scope of any such
waiver is critical to evaluating recovery
potential. Always remember to ask these
four key questions: Who, what, when and
Who is subject to the waiver?
Like most issues, the scope of a waiver of
sovereign immunity differs by jurisdic-
tion. Some jurisdictions have chosen to
permit claims against all sovereigns and
all levels of government operation, while
others draw a distinction between the
type of sovereign being sued.
For example, in Georgia, a state entity
can be held liable for creating nuisances,
while Georgia counties enjoy immunity
for the same claim. This is because the
waiver of immunity in Georgia’s State
Tort Claims Act does not apply to counties or municipalities. Thus, when reviewing a statutory waiver of immunity, it is
important to first review any accompanying definition section or case law further
defining the scope of the statute. Do not
be led astray by the fact that the term
“state” may be defined differently in different jurisdictions.