If a party is injured by some act of a governmental unit, official, or agency, he may or may not be permitted to sue. The reason that he may be barred from suing is because of “sovereign immunity.” Traditionally, this doctrine protected governmental units, officials, and agencies from liability based on their tortuous acts unless they had consented to being sued. Now, this immunity has been waived in large part and only applies in certain circumstances.
By virtue of the Federal Tort Claims Act, the federal government has waived its immunity from liability for most tortuous acts. However, immunity still attaches in certain situations.
Immunity for certain torts
Immunity for the federal government still attaches for tort actions based on assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, deceit, misrepresentation, and interference with contract rights.
Immunity for discretionary acts
The federal government maintains its immunity from tort actions arising from acts that are “discretionary,” which are acts that are related to higher-level planning or decision making. Discretionary acts are distinguished from those that are “ministerial,” which involve the lower-level operations of the government. There is no tort immunity for ministerial acts.
Most states have waived their immunity from tort actions, but immunity still applies to discretionary acts and legislative and judicial decision making.
Most states that have waived their own immunity have also abolished municipal tort immunity. However, municipalities are still immune for discretionary acts and policy decisions.
In states where municipal immunity exists, courts may still find a municipality liable based on the municipality’s exercise of proprietary, rather than governmental, functions.
Functions that are only performed by governments are considered governmental functions (e.g., police and fire). Municipalities are generally immune from tort actions arising from such functions.
Municipal functions that could be provided by a private corporation are usually construed as proprietary functions (e.g., maintaining airport parking lot), especially if the municipality collects revenues for its services. Municipalities are not shielded with tort immunity related to such functions.
Government officials may also have immunity from tort liability when carrying out their official duties involving discretionary acts. However, officials are not immune if they act with malice or improper purpose. In addition, no tort immunity applies to ministerial acts.