Chapter 5.4 Immunity Waiver

Immunity Waiver

In general, state officials are not liable for injuries related to discretionary acts because the states have not waived their sovereign immunity in this regard.  See King v. Seattle, 525 P.2d 228 (Wash. 1974).  The public policy behind maintaining immunity is to foster the exercise of good judgment in areas that call for such, e.g., policy development.  Absent such immunity, state officials may hesitate to assist the government in developing and implementing public policy.

Many states have waived sovereign immunity for the failure to perform or the negligent performance of ministerial acts.  Consequently, the failure to perform a ministerial act, or the negligent performance of such an act, can expose state officials to liability if a person is injured as a result thereof.  Whether an act is discretionary or ministerial is a question of fact.  The nature of the act, not the nature of the actor, is the determining consideration.  See Miree v. United States, 490 F. Supp. 768, 773 (N.D. Ga. 1980).

Where immunity is waived, the state is generally liable to provide a defense and cover damages up to the amount authorized by the state legislature or the provisions of a risk or legal defense fund.  See, e.g., Fla. Stat. § 768.28 (2010) (which limits the state’s liability in most circumstances to $200,000 per person or $300,000 per incident).  There are some exceptions, which require a direct appropriation from the state legislature.  A state official can be held personally liable to the extent of any damages awarded that exceed state policy.  See, e.g., McGhee v. Volusia Cty., 679 So. 2d 729 (Fla. 1996) (absent statutory provision, a state official would be personally liable for that portion of a judgment rendered against him or her that exceeds the state’s liability limits).  However, many states specifically exempt “willful and wanton” conduct from coverage deeming such conduct to lie outside the scope of employment. See, e.g., Hoffman v. Yack, 373 N.E.2d 486 (Ill. 1978).