Tort Claims Against Local Government Employees

Here in Georgia, due to the doctrine of Sovereign Immunity, as we have posted before, it is very difficult to sue a local government employee. If a government employee commits a tort against an innocent third party and that person wishes to file a claim against the government employee, the government employee cannot be sued in his or her official capacity unless the employer of the government employee has waived its sovereign immunity. This is because any claim against the employee in his or her official capacity is considered by the Courts in Georgia to be equivalent to a claim against the government itself. Thus, absent a waiver of sovereign immunity, which is quite limited, there will be no claim against the employee in his or her official capacity.
If an employee is not acting within the scope of their discretionary authority and violates a ministerial duty, or acts with actual malice or intent to cause injury, or acts completely outside the scope of their employment, they can be held individually liable for torts against innocent third parties. There are a lot of qualifications in the law in this regard and it is not always easy to determine what constitutes a discretionary act as opposed to a ministerial duty. As long as there is a policy or procedure in place, which requires the execution of a simple task with definitive guidelines for the execution of that task, there is at least an argument to be made that the duty is ministerial in nature and therefore if the employee, by virtue of failing to perform such tasks, negligently causes harm to an innocent third party, then in that event, a valid claim can be asserted against the government employee individually. Otherwise, any claim against a government employee will be barred by the doctrine of Official Immunity because a government employee cannot be sued for discretionary acts performed in the course of their duties. One limited exception to this are automobile tort claims where there is a limited waiver of immunity. As might be expected, whether an employee can be successfully sued in an individual capacity is a factually specific inquiry.

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