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Posted in Uncategorized on December 10, 2018   |  by Gary Burger

What Happens if the Defendant is a Government or Government Agency?

Sometimes the defendant in a case is a city, county, state or an agency of one of them. This can complicate a lawsuit. We recently had a case go up on appeal on these complicated issues and wanted to talk about them.

There are 2 types of immunity government defendants might be entitled to. The first is called sovereign immunity. The Federal Government has broad immunity and carefully limits when it can be sued. Under the Federal Tort Claims Act, a administrative procedure is set up for claims when the U.S. government or its employees are negligent. 28 U.S.C. § 1346(b). Here's an article on a FTCA case we settled.

States are also entitled to sovereign immunity for negligence claims. Under the 14th amendment to the U.S. Constitution, States reserve their immunity. In Illinois the Illinois Court of Claims has been set up to address these cases.

No jury is permitted, a hearing officer conducts the hearing and Makes recomendations to the Illinois Claims Commission and that body renders a decision. Here's a link to the Illinois Court of claims website. We tried a case there which is pending now.

In Missouri, injured people can bring a civil claim in one of three situations - but they get a jury trial. § 537.600 sets out the immunity guidleines, damage caps and exceptions.

The first situation states are not entitled to immunity is regarding premise liability. For example, if you fall on a state property due to defect in the physical property. There could be a missing step, or a hole that hasn't been covered. Under those situations, Missouri law says sovereign immunity is waived by the state and they can be sued for any injuries that happened as a result of the defect.

The second situation is where a state employee is on the job and gets into a car accident. Missouri law says under those situations, the State is liable for its employees actions.

Finally, states waive sovereign immunity for governmental functions to the extent they are covered by liability insurance. Where a party can show the existence of insurance and that it specifically covers the negligence at issue, immunity for public entities is waived.

Under all other circumstances regarding negligence, however, a state is entitled to immunity and cannot be sued. We have come across this numerous times with state government, city government, county government, public schools, government buildings, etc.

Sovereign immunity is a doctrine that stems from old english law, where our laws originate, that the monarch can do no wrong.

To be entitled to official immunity, public employees must be carrying out a discretionary act for their governmental job. The law defines this as an exercise of reason in determining how or whether an act should be done or course pursued.

This is the counter of a ministerial act, which doesn't require any reasoning on behalf of the employee. During ministerial acts, a government employee is liable for any negligence.The latest Supreme Court treatment of this issue was in Southers v. City of Farmington.
We see this issue get litigated more often to try to determine what a ministerial act is in different public jobs. For example, one case it came up in involved EMS who failed to provide adequate treatment to a 9 month old baby with a tracheostomy tube. Because of their negligence, the baby suffered prolonged oxygen deprivation and is now brain dead.

They argued that they used their discretion in determining what should be done, and felt as if doing nothing was an option, so thats what they chose. Our argument was that their protocols demonstrated there was a clear set of guidelines on what to do, making it ministerial.

We have also seen this come up in a car accident involving a police car. While the police officer in the car is not liable for performing a discretionary duty, his employer has waived liability under the law and is the only defendant that can be sued.

These are difficult cases to try to win and immunity is often addressed on summary judgment.

We defeated assertions of summary judgment in our Hootselle class action trial as immunity does not attach to breach of contract cases. Here's a link to that page which has some briefing we did on it.