Sovereign Immunity: An Antiquated Doctrine With Harsh Results

When I speak to potential clients about claims against government employees and entities, they are often startled to learn about the antiquated but harsh doctrine of sovereign immunity. Many states have made changes to their laws to minimize the impact of this legal doctrine upon the innocent. However, in many circumstances, states like Georgia still employ the doctrine to defeat the claims of those injured by government actors. While some improvements in the law have been made, regrettably, they have not been sufficient to address all claims against government actors.
The policy reason behind the doctrine of sovereign immunity is to protect the public purse from claims made by citizens against their government. The theory seems to be that if a citizen sues the government for acts of negligence and money is collected, then the bill will have to be paid by taxpayers out of the public purse. In today’s modern society, however, with insurance being available to protect all government agencies just as in the private sector, the reason behind the doctrine seem to be less than compelling. Succinctly stated, the only public monies being paid are the amount of the premiums and the public is not being called upon to pay the claims per se. This being the case, a strong argument could be made that the doctrine of sovereign immunity should be completely abolished. Nonetheless, it is alive and well in Georgia and elsewhere.
The principal exception to the doctrine of sovereign immunity involves governmental vehicles. If a government employee is driving a county, city or state vehicle and they injure a third party, then typically the doctrine of sovereign immunity has been waived in this state. Nonetheless, for many other claims, when a government actor or employee damages a third party through acts of negligence, oftentimes it is the case that no claim can be filed because unless there has been an express legislative waiver of the doctrine of sovereign immunity, the law presumes that the government cannot be sued and that its sovereign immunity is maintained.
In those cases where there has been a waiver of sovereign immunity, as we have written before, there are still “Traps for the Unwary” when it comes to bringing claims against the government. Typically, whether the claim be against a municipality, county or state government official or employee, an ante litem written notice of claim must be filed before suit can be brought. There are time limits for these demands, typically six (6) months to one year which must be scrupulously observed. If not, once again, the doctrine of sovereign immunity will be invoked to have the claim dismissed.
For any potential client that has a claim for damages arising out of the acts of a government employee or agency, one must always be aware of the doctrine of sovereign immunity. Because this is a complex area of the law, obviously, any citizen with a potential claim against his or her government should confer with counsel as soon as possible.