Sovereign Immunity: Not (Quite) A Superpower

 First things first; what's sovereign immunity?

Though it might sound like something out of X-Men, sovereign immunity is actually a legal concept.  Yes, boring, I know.  Sovereign immunity (and its little brother, governmental immunity) basically means that you can't sue the government unless the government allows itself to be sued.  This idea derives from the old English idea that "the King can do no wrong."  If this doesn't seem exactly fair, that may be because it often isn't.  Governments and their employees are as imperfect as the rest of us (except that they are often subject to far less accountability), and their wrongful acts and omissions can cause at least as much damage as those of a private citizen.

So that's it? You just can't sue the government?

 Generally, that's about the size of it.  The State of North Carolina gets sovereign immunity, municipal and local governments get governmental immunity, and they're mostly covered.  But there are several important exceptions that can open the door for the government to be held accountable for misdeeds.

  1.  Contracts with the government. If you have a contract with a governmental entity, and if that contract isn't defective for one reason or another, then you've got a cause of action against that governmental entity if it breaches the contract.  Remember how you can sue the government if the government allows itself to be sued?  Well, when the government enters into a contract, it impliedly waives its immunity and consents to being sued if there's a breach of that contract.  So if you own a landscaping company and the City of Raleigh contracts with you to handle the landscaping at the City Council, you could be able to bypass the City's governmental immunity if the contract is breached.
  2. Claims under the North Carolina Constitution.  The general rule is that you can't bring a claim under the North Carolina Constitution unless and until you've exhausted all "adequate alternative remedies."  However, these adequate alternative remedies are not available if they're barred by sovereign immunity or governmental immunity.  This is a roundabout fix, but what it basically means is that you can end-run a claim around sovereign immunity where said claim arises under the North Carolina Constitution.
  3. Claims arising under federal law.  The 11th Amendment to the United States Constitution is not super well-known, but it basically states that individual citizens can't file federal lawsuits against the states.  That seems to go along with the idea of sovereign immunity, but what about governmental immunity?  Well, case law dictates that local governments are not subject to the 11th Amendment, and they can therefore be sued in federal court.  There are a lot of complicated details that come into play here, but that's the basic gist of it.

  4. Governmental versus proprietary functions. Governmental immunity, like I said above, is the little brother of sovereign immunity; it applies only to local and municipal governmental bodies, like counties and cities.  There are two very important qualifiers with governmental immunity, too; (i) governments are not liable for actions taken by employees outside the scope of their job duties, and (ii) governmental immunity only protects the government with regard to governmental functions as opposed to proprietary functions. Because I know that's clear as mud, think of governmental functions as those tasks that only the government would traditionally perform; garbage collection, emergency response, and waste management.  Proprietary functions are those that could be performed just as easily by private actors; running a golf course, running a hospital, things like that.  

  5. Claims arising under the North Carolina Tort Claims Act.  Again, sovereign immunity bars claims against the state except where the state has allowed itself to be sued.  One instance in which North Carolina has statutorily allowed itself to be sued is in the North Carolina Tort Claims Act, which provides an important vehicle for private citizens to seek the redress of wrongs committed by a North Carolina state entity.

So what does the Tort Claims Act say?

The Act essentially allows the State to be held liable for negligent acts of its employees and agents acting within the scope of their duties, under circumstances that would subject the actor to liability if the actor were a private citizen.  The Act has a few important points: 

First off, you don't get to drag the State of North Carolina into the courtroom right off the bat.  Exclusive and original jurisdiction for TCA matters belongs to the Industrial Commission, meaning that you have to bring your claim before them first.  Your claim will be held before an assigned "hearing commissioner," who will hear the evidence of both sides before rendering a decision.  If either party doesn't like the decision, then that party has a short period of time in which to appeal, after which the appeal will be heard in front of the entire Commission.  The Commission's final decision is then appealable to the Court of Appeals, bypassing the District and Superior Court systems entirely.

Second, you're dealing with the same statutes of limitations that generally apply.  For purposes of my general practice, that means three years for negligence, and two years for wrongful death.

Third - and this one is really important - the State has access to affirmative defenses, just like a private defendant would.  The most important of these in North Carolina is contributory negligence, meaning that your claim can die on the vine just as easily against the State as it could against anybody else.  Not only that, but the State has access to the public duty doctrine as an additional affirmative defense, which I'll cover later in the week.

Fourth, the Tort Claims Act allows the State a damages cap of $1,000,000.00, minus the amount of any available insurance coverage.  That may seem like a lot of money, but trust me; where catastrophic injuries are present, and especially when there are multiple claimants, that money will vanish in a hurry.


If this all sounds complicated, that's because it is.  State immunity, the Tort Claims Act, and the laybrinth of laws that often get implicated alongside can get very convoluted very quickly.  If you have questions, call me and ask.  I'll help you or find somebody who can.  Thanks for reading!