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Sovereign Immunity and Tort Claims Legislation

Sovereign Immunity and Tort Claims Legislation - Sovereign...

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Unformatted text preview: Sovereign Immunity and Tort Claims Legislation Claims CRJU E491P, Police Liability Spring 2011, Mr. Smith "The king, moreover, is "The king, moreover, is not only incapable of doing wrong, but even of thinking wrong; he can never mean to do an improper thing." Sovereign Immunity Sovereign Sovereign immunity is a judicially created doctrine that prevents the government or its political subdivisions, departments, and agencies from being sued without their consent. The doctrine arose from a 1788 English case: Russell v. Men of Devon. Among the reasons advanced for the doctrine's acceptance in the early US was that new states were financially unable to respond in damages to meritorious claims based upon negligence in their governmental activities. Federal Sovereign Immunity Federal In early American history, the federal courts supported the traditional view that the United States could not be sued in federal court without congressional authorization. Because of the “Supremacy Clause” of the US Constitution, the federal government has never been subject to suit in a state court. Accordingly, for many years, those who had claims against the federal government had no legal recourse to obtain relief because the federal government had not waived its sovereign immunity. Congress did not address the issue of liability for torts committed by the federal government until 1946 when it enacted the federal Tort Claims Act, which authorized US district courts to hold the United States liable for the torts of its agencies, officers, and employees in the same fashion as private individuals. The federal act’s general waiver of sovereign immunity had a number of exceptions, however, including the torts of Battery, False Imprisonment, False Arrest, Malicious Prosecution, Abuse of Process and numerous others. Thus, the government could not be sued for intentional torts. In Dalehite v. United States (1953), the U.S. Supreme Court drew a distinction under the Tort Claims Act between torts arising from “discretionary acts” committed by the federal government and those arising from “ministerial acts.” The Court held that the federal Tort Claims Act did not waive sovereign immunity for torts arising from discretionary acts; the waiver applied only to torts arising from ministerial acts. Thus, if an act of negligence was attributable to the discretionary decision of a government official, sovereign immunity remained intact. Discretionary acts require an official to exercise judgment or choice from among numerous alternatives and are often referred to as “planning stage” activities. Ministerial acts involve no discretion decision­ making and come about because a statute, regulation, or policy specifically prescribes the employee’s actions. Ministerial actions are often referred to as “operational stage” activities. This discretionary­ministerial act distinction remains in place today and a federal government official retains immunity from suit for discretionary acts, but can be sued for ministerial acts. The concept has also carried over to many state tort claims acts, including South Carolina’s. State Immunity in Federal Court State In Chisholm v. Georgia (1793), the US Supreme Court permitted a North Carolina citizen to sue the State of Georgia for property that Georgia had seized during the American Revolution. The states’ strong disapproval of the decision in Chisholm led to the prompt adoption of the Eleventh Amendment to the US Constitution in 1795 which now generally prohibits suits against a state in federal court for money damages. The Eleventh Amendment The “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.” The Eleventh Amendment limits the power of federal courts to hear lawsuits against state governments brought by the citizens of another state or the citizens of a foreign country. The Supreme Court has also interpreted the Eleventh Amendment to bar federal court lawsuits brought by citizens of the state being sued. For example, the State of South Carolina could invoke the Eleventh Amendment to protect itself from being sued in a federal court by a South Carolina citizen, a resident of another state or foreign country, or the government of a foreign country. The Eleventh Amendment does not bar: Suits against states in their own courts Suits where a state has consented to be sued Suits against the state’s political subdivisions, such as counties, cities, and municipalities Suits against states in a federal court where Congress has enacted legislation pursuant to its enforcement powers under the Equal Protection and Due Process Clauses of the Fourteenth Amendment, as in federal Civil Rights laws such as 42 USC section 1983 Suits against a state in federal court where the relief being sought is injunctive relief and not money damages State Sovereign Immunity State The US Supreme Court can hear suits brought by one state against another and a state’s claim of sovereign immunity cannot defeat this jurisdiction, due to considerations of federalism. However, until fairly recently, states were free to bar their own citizens from bringing suit in their own state’s courts based on the concept of sovereign immunity and usually did so. Until approximately 50 years ago, all states maintained full sovereign immunity, which prevented anyone from filing a civil suit for damages against the state or its political subdivisions. The doctrine was routinely criticized by courts as violating the well­established legal rule that liability should follow tortious conduct and that one who negligently causes harm should be responsible for payment of damages. In 1957, the Florida Supreme Court became the first state court to abolish the doctrine of sovereign immunity in the case of Hargrove v. Town of Cocoa Beach. South Carolina’s History South The sovereign immunity doctrine was first applied in South Carolina in the 1820 case of Young v. Commissioners of Roads. It remained in effect until 1985 when the SC Supreme Court abolished it in the case of McCall v. Batson stating that “[a] doctrine which issues from the maxim, ‘the king can do no wrong’, is antagonistic to American democracy and, now that whatever may have justified its adoption has passed, should be abolished.” The Impact of McCall The The decision in McCall effectively abolished the sovereign immunity doctrine in South Carolina on a wide ranging basis. The decision placed a major burden on the SC General Assembly to enact legislation to prepare governmental entities for their forthcoming exposure to negligence tort liability. “The legislature may find it necessary to take some action to prepare the state and local subdivisions of government for their new tort liability. For that reason we delay the implementation of this decision to allow the legislature to address any problems or hardships created by the abrogation of sovereign immunity. Other states have recognized the potential problems and have abolished sovereign immunity prospectively.” Ness, Justice in McCall v. Batson The SC Tort Claims Act The McCall decision abolished the doctrine as it applied to the state and all local government subdivisions, except that it excluded from its ruling the acts of legislative, judicial and executive bodies and public officials performing discretionary acts in their official capacities and also created a number of “exceptions” to waiver of immunity. The SC Supreme Court postponed the effective date of its opinion so as to only apply to cases filed after July 1, 1986. The General Assembly responded to the holding in McCall by enacting the South Carolina Tort Claim Act (SCTA), now codified in the SC Code beginning at section 15­78­10. The effect of SCTCA is to establish a public policy that permits suits or claims against governmental entities and employees for their negligence, to limit the amounts which may be recovered against entities for negligently inflicted injuries and to limit the available defendants in the event a lawsuit is filed. The act has frequently been used to sue the police for negligence. As a general proposition, the mere employment of a law enforcement officer by a SC governmental entity is sufficient to support a claim for the negligence torts of the officer on the employing entity as long as the officer’s actions, or inactions, were within the “scope of official duty” or “scope of state employment” and did not involve “actual fraud, actual malice, intent to harm, or a crime involving moral turpitude.” The SCTCA substantially incorporates the common law imputed negligence doctrine of respondeat superior (“let the master answer”) which makes an employer liable for the negligence torts of the employee solely by virtue of the employment relationship. However, the waiver of sovereign immunity created by SCTA is also subject to 40 “exceptions” to the state’s waiver of immunity which may prevent suits against the police and other government employees for specific activities. SCTCA Protections SCTCA Section 15­78­70 states that an employee of a governmental entity who commits a tort while acting within the scope of official duty is not liable for the tort unless the employee's conduct was not within the scope of official duties or if it constituted actual fraud, actual malice, intent to harm, or a crime involving moral turpitude. The section also provides that should a civil action be brought against a governmental entity only the entity is to be named as a party to the action and should the employee be individually named as a defendant, the entity must be substituted as the party defendant. Section 15­78­120 “caps” the amount that can be recovered against entities for their torts at “three hundred thousand dollars because of loss arising from a single occurrence regardless of the number of agencies or political subdivisions involved” and, should there be multiple claims arising from a single occurrence, “the total sum recovered...shall not exceed six hundred thousand dollars”. Waiver of Immunity: Exceptions Waiver Section 15­78­60 contains 40 “exceptions to waiver of immunity,” meaning that there are currently forty classes of activities for which governmental entities may not be held liable for their simple negligence. The exceptions do not apply, however, if “gross negligence” is determined to have been involved. Gross negligence has been defined as “...the intentional, conscious failure to do something which one ought to do or the doing of something one ought not to do.” [Worsley Companies, Inc. v. Town of Mount Pleasant] Common Negligence Claims Common Some of the more common negligence claims filed against law enforcement officers and agencies are the following: Negligent hiring­ hiring a person who is unfit for police work; not conducting psychological exams; not conducting full background checks (e.g. hiring a new officer without a criminal background check) Negligent supervision­ inadequate monitoring of officer performance; failing to reprimand or take other supervisory corrective action when appropriate (e.g. not providing either a FTO program or ride­along assignment for new officers) Negligent retention­ retaining an officer who should have been severely disciplined, demoted, or dismissed (e.g. retaining an officer with an extensive history of documented excessive force against citizens) Failure to train­ inadequately preparing an employee to perform duties; minimal or inadequate academy training; little or no in­service training (e.g. requiring officers to confront mentally ill suspects with no training) Negligent entrustment­ inadequately preparing an officer prior to entrusting the officer with new or additional responsibilities or equipment (e.g. equipping an officer with a non­lethal weapon, such as a Taser, without first training) Negligent assignment­ assigning a known “problem officer” to critical or inappropriate duties (e.g. assigning a known reckless driver to motor patrol) ...
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