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State Sovereign Immunity and Tort Liability

Picture of a statue of blind justice

For most of American history, sovereign immunity almost universally protected federal and state governments and their employees from being sued without their consent. Starting in the mid-1900s, however, a trend toward government accountability began to erode sovereign immunity. In 1946, the federal government passed the Federal Tort Claims Act (28 U.S.C.§2674), waiving immunity to suit and liability for some actions. Many state legislatures followed by enacting statutes to define the limits of immunity for state governmental entities and employees.

Today, state tort claims acts modeled after the FTCA are the most prevalent statutory waiver allowing tort claims against the state. These acts either provide a general waiver of immunity with certain exceptions, or reenact immunity with limited waivers that apply only to certain types of claims.

State claims acts (as opposed to tort claims acts) are another kind of statute that limit immunity and establish a procedure for claims against the state. These acts establish a special court of claims, board or commission to determine such claims, and may also limit damages or provide for certain exceptions to liability. Connecticut, Illinois, Kentucky, North Carolina and Ohio use this approach.

At least 33 states' acts limit, or "cap," the monetary amount for damages that may be recovered from judgments against the state, and at least 29 states (often in combination with a cap) prohibit a judgment against the state from including punitive or exemplary damages.

The table below lists statutes and constitutional provisions for all 50 states and the District of Columbia relating to immunity and tort claims against the state, including:

Constitutional provisions that establish legislative authority over sovereign immunity or tort claims issues
Statutes and constitutional provisions relating generally to sovereign immunity or tort claims against state governmental entities
Discretionary function exceptions to state liability1
Misrepresentation exceptions to state liability 2
Prohibitions on punitive or exemplary damages against the state
Monetary limitations ("caps") on damages against the state per occurrence, per person and/or per cause of action

This table does not include case law, citations dealing solely with political subdivisions such as municipal and county governments, or statutes dealing exclusively with suits against state employees.

A PDF version of the table is available here. This information was originally published in the 2010 report Weather or Not? State Liability and Road Weather Information Systems (RWIS), authored by the NCSL Transportation Program. Please contact Jaime Rall for more details about that report.

NEW! Download a chart of 2010 state legislation concerning state liability and sovereign immunity (August 2010 update).

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Citations Relating to State Sovereign Immunity and Tort Claims Against the State
State or Jurisdiction	Citations Relating to State Sovereign Immunity, Legislative Authority over Immunity Issues, and Tort Claims Against the State	Statutes Referencing Discretionary Function Exceptions	Statutes Referencing Misrepresentation Exceptions	Statutes Prohibiting Punitive Damages Against the State	Statutes Providing Limitations (“Caps”) on Damages
Alabama	Ala. Const. art. I, §14: State not to be made defendant. Ala. Code §41-9-60 (1975): Purpose of [Board of Adjustment].			Ala. Code §6-11-26 (1975)
Alaska	Alaska Const. art. II, §21: Suits against the State. [Establishes legislative authority.] Alaska Stat. §§09.50.250 et seq.: Claims against the State or State employees.	Alaska Stat. §09.50.250	Alaska Stat. §09.50.250	Alaska Stat. §09.50.280
Arizona	Ariz. Const. art. IV, pt. 2, §21: Suits against the State. [Establishes legislative authority.] Ariz. Rev. Stat. Ann. §§12-820 et seq.: Actions Against Public Entities or Public Employees.	Ariz. Rev. Stat. Ann. §12-820.01 Ariz. Rev. Stat. Ann. §26-314 [Relates to emergency management.]		Ariz. Rev. Stat. Ann. §12-820.04
Arkansas	Ark. Const. art. V, §20: Sovereign immunity of the State of Arkansas. Ark. Stat. Ann. §§21-9-201 et seq.: Liability of the State. Ark. Stat. Ann. §§19-10-101 et seq.: Claims against the State.			Ark. Stat. Ann. §21-9-203
California	Cal. Const. art. III, §5: Suits against the State. [Establishes legislative authority.] Cal. Government Code §§815 et seq.: Liability of Public Entities.	Cal. Government Code §820.2 Cal. Government Code §8655 [Relates to California Emergency Services Act.]	Cal. Government Code §818.8 Cal. Government Code §822.2 [Relates to liability of public employees.]	Cal. Government Code §818
Colorado	Colo. Rev. Stat. §§24-10-101 et seq.: Colorado Governmental Immunity Act.			Colo. Rev. Stat. §24-10-114	Colo. Rev. Stat. §24-10-114
Connecticut	Conn. Gen. Stat. Ann. §§4-141 et seq.: Claims Against the State.
Delaware	Del. Code Ann. Const. art. I, §9: Courts shall be open; remedy for injury; venue; suits against State. [Establishes legislative authority.] Del. Code Ann. tit. 10, §§4001 et seq.: Tort Claims Act.	Del. Code Ann. tit. 10, §4001
District of Columbia	D.C. Code Ann. §§2-401 et seq.: Claims against the District.
Florida	Fla. Const. art. X, §13: Suits against the State. [Establishes legislative authority.] Fla. Stat. Ann. §768.28: Waiver of sovereign immunity in tort actions; recovery limits; limitation on attorney fees; statute of limitations; exclusions; indemnification; risk management programs.				Fla. Stat. Ann. §768.28³
Georgia	Ga. Const. art. I, §2, ¶9: Sovereign immunity and waiver thereof; claims against the state and its departments, agencies, officers, and employees. [Establishes legislative authority.] Ga. Code §§50-21-20 et seq.: Georgia Tort Claims Act.	Ga. Code §50-21-24		Ga. Code §50-21-30	Ga. Code §50-21-29
Hawaii	Hawaii Rev. Stat. §§662-1 et seq.: State Tort Liability Act.	Hawaii Rev. Stat. §662-15	Hawaii Rev. Stat. §662-15
Idaho	Idaho Code §§6-901 et seq.: Idaho Tort Claims Act.	Idaho Code §6-904	Idaho Code §6-904	Idaho Code §6-918	Idaho Code §6-926
Illinois	Ill. Const. art. XIII, §4: Sovereign immunity abolished. Ill. Ann. Stat. ch. 745, §§5/1 et seq.: State lawsuit immunity act. Ill. Ann. Stat. ch. 705, §§505/1 et seq.: Court of Claims Act.				Ill. Ann. Stat. ch. 705, §505/8
Indiana	Ind. Const. art. IV, §24: Right to sue the state. [Establishes legislative authority.] Ind. Code §§34-13-3-1 et seq.: Tort Claims Against Governmental Entities and Public Employees.	Ind. Code §34-13-3-3		Ind. Code §34-13-3-4	Ind. Code §34-13-3-4
Iowa	Iowa Code Ann. §§669.1 et seq.: Iowa Tort Claims Act.	Iowa Code Ann. §669.14	Iowa Code Ann. §669.14
Kansas	Kan. Stat. Ann. §§75-6101 et seq.: Kansas Tort Claims Act.	Kan. Stat. Ann. §75-6104		Kan. Stat. Ann. §75-6105 Kan. Stat. Ann. §75-6109	Kan. Stat. Ann. §75-6105
Kentucky	Ky. Const. §231: Suits against the Commonwealth. [Establishes legislative authority.] Ky. Rev. Stat. §§44.070 et seq.: Board of Claims.	See note 4.			Ky. Rev. Stat. §44.070
Louisiana	La. Const. art. XII, §10: Suits against the State. La. Rev. Stat. Ann. §§13:5101 et seq.: Louisiana Governmental Claims Act.				La. Rev. Stat. Ann. §13:5106
Maine	Me. Rev. Stat. Ann. tit. 14, §§8101 et seq.: Maine Tort Claims Act.	Me. Rev. Stat. Ann. tit. 14, §8104-B		Me. Rev. Stat. Ann. tit. 14, §8105	Me. Rev. Stat. Ann. tit. 14, §8105
Maryland	Md. State Government Code Ann. §§12-101 et seq.: Maryland Tort Claims Act. Md. Courts and Judicial Proceedings Code Ann. §5-522: Immunity; State Personnel.			Md. Courts and Judicial Proceedings Code Ann. §5-522	Md. State Government Code Ann. §12-104⁵ Md. Courts and Judicial Proceedings Code Ann. §5-522
Massachusetts	Mass. Gen. Laws Ann. ch. 258, §§1 et seq.: Claims and Indemnity Procedure for the Commonwealth, Its Municipalities, Counties and Districts and the Officers and Employees Thereof.	Mass. Gen. Laws Ann. ch. 258, §10			Mass. Gen. Laws Ann. ch. 258, §2
Michigan	Mich. Comp. Laws Ann. §§691.1401 et seq.: Governmental Liability for Negligence.	See note 6.
Minnesota	Minn. Stat. Ann. §3.736: Tort Claims.	Minn. Stat. Ann. §3.736(3)			Minn. Stat. Ann. §3.736(4)
Mississippi	Miss. Code Ann. §§11-46-1 et seq.: Immunity of State and Political Subdivisions from Liability and Suit for Torts and Torts of Employees.	Miss. Code Ann. §11-46-9		Miss. Code Ann. §11-46-15	Miss. Code Ann. §11-46-15
Missouri	Mo. Ann. Stat. §§537.600 et seq.: Sovereign Immunity.			Mo. Ann. Stat. §537.610	Mo. Ann. Stat. §537.610
Montana	Mont. Const. art. II, §18: State subject to suit. Mont. Code Ann. §§2-9-101 et seq.: Liability Exposure			Mont. Code. Ann. §2-9-105	Mont. Code. Ann. §2-9-108
Nebraska	Neb. Rev. St. Const. art. V, §22: State may sue and be sued. [Establishes legislative authority.] Neb. Rev. St. §§81-8,209 et seq.: State Tort Claims Act.	Neb. Rev. St. §81-8,219	Neb. Rev. St. §81-8,219		Neb. Rev. St. §81-8,224 ⁷
Nevada	Nev. Const. art. IV, §22: Suits against state. [Establishes legislative authority.] Nev. Rev. St. §§41.0305 et seq.: Liability of and Actions Against This State, Its Agencies and Political Subdivisions.	Nev. Rev. St. §41.032		Nev. Rev. St. §41.035	Nev. Rev. St. §41.035
New Hampshire	N.H. Rev. Stat. Ann. §§541-B:1 et seq.: Claims Against the State.	N.H. Rev. Stat. Ann. §541-B:19		N.H. Rev. Stat. Ann. §541-B:14	N.H. Rev. Stat. Ann. §541-B:14
New Jersey	N.J. Rev. Stat. §§59:1-1 et seq.: New Jersey Tort Claims Act.	N.J. Rev. Stat. §59:2-3		N.J. Rev. Stat. §59:9-2
New Mexico	N.M. Stat. Ann. §§41-4-1 et seq.: Tort Claims Act.	See note 8.		N.M. Stat. Ann. §41-4-19	N.M. Stat. Ann. §41-4-19
New York	N.Y. Court of Claims Act §8: Waiver of immunity.
North Carolina	N.C. Gen. Stat. §§143-291 et seq.: Tort Claims Against State Departments and Agencies.				N.C. Gen. Stat. §143-299.2
North Dakota	N.D. Const. art. I, §9: No title. [Establishes legislative authority.] N.D. Cent. Code §§32-12.2-01 et seq.: Claims against the State.	N.D. Cent. Code §32-12.2-02		N.D. Cent. Code §32-12.2-02	N.D. Cent. Code §32-12.2-02⁹
Ohio	Ohio Const. art. I, §16: Redress for injury; due process. Ohio. Rev. Code Ann. §§2743.01 et seq.: Court of Claims.
Oklahoma	Okla. Stat. tit. 51, §§151 et seq.: The Governmental Tort Claims Act.	Okla. Stat. tit. 51, §155	Okla. Stat. tit. 51, §155	Okla. Stat. tit. 51, §154	Okla. Stat. tit. 51, §154
Oregon	Or. Const. art. IV, §24: Bringing suit against state. [Establishes legislative authority.] Or. Rev. Stat. §§30.260 et seq.: Tort Actions Against Public Bodies.¹⁰	Or. Rev. Stat. §30.265		Or. Rev. Stat. §30.270 ¹¹	Or. Rev. Stat. §30.270¹²
Pennsylvania	Pa. Const. art. 1, §11: Courts to be open; Suits against the Commonwealth. [Establishes legislative authority.] Pa. Cons. Stat. Ann. tit. 1, §2310: Sovereign Immunity Reaffirmed; Specific Waiver. Pa. Cons. Stat. Ann. tit. 42, §§8521 et seq.: Actions Against Commonwealth Bodies. Pa. Cons. Stat. Ann. tit. 35, §7704: Immunity from civil liability. [Relates to emergency management.]	Pa. Cons. Stat. Ann. tit. 42, §8524		Pa. Cons. Stat. Ann. tit. 42, §8528¹³	Pa. Cons. Stat. Ann. tit. 42, §8528
Rhode Island	R.I. Gen. Laws §§9-31-1 et seq.: Governmental Tort Liability.				R.I. Gen. Laws §9-31-2
South Carolina	S.C. Const. art. X, §10: Claims against State. [Establishes legislative authority.] S.C. Code Ann. §15-78-10: South Carolina Tort Claims Act.	S.C. Code Ann. §15-78-60		S.C. Code Ann. §15-78-120	S.C. Code Ann. §15-78-120
South Dakota	S.D. Const. art. III, §27: Suits Against the State. [Establishes legislative authority.] S.D. Codified Laws Ann. §§21-32-1 et seq.: Remedies Against the State.	See note 14.
Tennessee	Tenn. Const. art. I, §17: Remedies in Courts, Suits Against State. [Establishes legislative authority.] Tenn. Code Ann. §§9-8-301et seq.: Tennessee Claims Commission. Tenn. Code. Ann. §§20-13-101 et seq.: Actions by and Against State.			Tenn. Code Ann. §9-8-307	Tenn. Code Ann. §9-8-307
Texas	Tex. Civil Practice and Remedies Code Ann. §§101.001et seq.: Texas Tort Claims Act.	Tex. Civil Practice and Remedies Code Ann. §101.056		Tex. Civil Practice and Remedies Code Ann. §101.023	Tex. Civil Practice and Remedies Code Ann. §101.023
Utah	Utah Code. Ann. §§63G-7-101 et seq. (previously cited as Utah Code. Ann. §§63-30d-101 et seq.): Governmental Immunity Act of Utah.	Utah Code. Ann. §63G-7-301		Utah Code. Ann. §63G-7-603	Utah Code. Ann. §63G-7-604
Vermont	Vt. Stat. Ann. tit. 12, §§5601 et seq.: Tort Claims Against the State.	Vt. Stat. Ann. tit. 12, §5601			Vt. Stat. Ann. tit. 12, §5601
Virginia	Va. Code §§8.01-195.1 et seq.: Virginia Tort Claims Act.			Va. Code §8.01-195.3¹⁵	Va. Code §8.01-195.3
Washington	Wash. Const. art. II, §26: Suits against the State.[Establishes legislative authority.] Wash. Rev. Code Ann. §§4.92.005 et seq.: Actions and Claims Against State.
West Virginia	W. Va. Const. art. VI, §35: State Not to Be Made Defendant in Any Court. W. Va. Code §§14-2-1 et seq.: Claims Against the State. W. Va. Code §§55-17-1 et seq.: Procedures for Certain Actions on Behalf of or Against the State.
Wisconsin	Wis. Const. art. IV, §27: Suits Against State. [Establishes legislative authority.] Wis. Stat. Ann. §§775.01 et seq.: Actions Against State.			See note 16.	See note 17.
Wyoming	Wyo. Const. art. 1, §8: Courts open to all; suits against state.[Establishes legislative authority.] Wyo. Stat. §§1-39-101 et seq.: Wyoming Governmental Claims Act.	See note 18.		Wyo. Stat. §1-39-118	Wyo. Stat. §1-39-118

Notes

1 Under a discretionary function exception, immunity still applies to essentially governmental functions that require the exercise of discretion or judgment, such as planning or policy level decisions. These “discretionary functions” are distinguished from “ministerial” or “operational” functions that involve only the execution of policies and set tasks.

2 Under a misrepresentation exception, immunity still applies in certain cases of governmental failure to communicate correct information.

3 Fla. Stat. Ann. §768.28 places dollar limits (by person and by occurrence) on judgments awarded against the state. Judgments that exceed those amounts can be paid in part or in whole only by further act of the legislature.

4 Ky. Rev. Stat. §44.073: "(13) The preservation of sovereign immunity referred to in subsections (11) and (12) of this section includes, but is not limited to, the following: (a) Discretionary acts or decisions… (c) Ministerial acts…"

5 Md. State Government Code Ann. §12-104 allows the state treasurer to pay from the State Insurance Trust Fund all or part of that portion of a tort claim which exceeds the statutory limitation on liability.

6 Mich. Comp. Laws Ann. §691.1407(2): "Except as otherwise provided in this section, and without regard to the discretionary or ministerial nature of the conduct in question, each officer and employee of a governmental agency, each volunteer acting on behalf of a governmental agency, and each member of a board, council, commission, or statutorily created task force of a governmental agency is immune from tort liability for an injury to a person or damage to property caused by the officer, employee, or member while in the course of employment or service or caused by the volunteer while acting on behalf of a governmental agency if all of the following are met: (a) The officer, employee, member, or volunteer is acting or reasonably believes he or she is acting within the scope of his or her authority. (b) The governmental agency is engaged in the exercise or discharge of a governmental function. (c) The officer's, employee's, member's, or volunteer's conduct does not amount to gross negligence that is the proximate cause of the injury or damage."

7 Neb. Rev. St. §81-8,224 requires any portion in excess of the statutory limit of an award or judgment against the state to be reviewed by the legislature and paid only by special legislative appropriation.

8 N.M. Stat. Ann. §41-4-2: "The Tort Claims Act shall be read as abolishing all judicially-created categories such as “governmental” or “proprietary” functions and “discretionary” or “ministerial” acts previously used to determine immunity or liability. Liability for acts or omissions under the Tort Claims Act shall be based upon the traditional tort concepts of duty and the reasonably prudent person's standard of care in the performance of that duty. The Tort Claims Act in no way imposes a strict liability for injuries upon governmental entities or public employees. Determination of the standard of care required in any particular instance should be made with the knowledge that each governmental entity has financial limitations within which it must exercise authorized power and discretion in determining the extent and nature of its activities."

9 N.D. Cent. Code §32-12.2-02 requires any portion in excess of the statutory limit of a judgment against the state to be paid only by special legislative appropriation.

10 Oregon Senate Bill 311 (2009), enacted April 15, 2009, makes significant changes to Or. Rev. Stat. §30.260 to §30.300. (See also notes 11 and 12).

11 Oregon Senate Bill 311 (2009) makes significant changes to Or. Rev. Stat. §30.260 to §30.300 and repeals Or. Rev. Stat. §30.270 (where provisions regarding limitations on damages were previously located); however, it retains the prohibition on punitive damages. (See also notes 10 and 12.)

12 Among other changes, Oregon Senate Bill 311 (2009) repeals Or. Rev. Stat. §30.270 (where provisions regarding limitations on damages were previously located), increases the limitations on damages for claims against the state and provides for an annual increase in those limitations after 2015. (See also notes 10 and 11.)

13 Pa. Cons. Stat. Ann. tit. 42, §8528 does not explicitly prohibit punitive damages, but instead limits the kind of damages that are recoverable to 1) past and future loss of earnings and earning capacity, 2) pain and suffering, 3) medical and dental expenses, 4) loss of consortium and 5) property losses except those relating to potholes and other dangerous conditions (pursuant to §8522[b][5]).

14 S.D. Codified Laws Ann. §21-32-17: "Except as provided in §21-32-16, any employee, officer, or agent of the state, while acting within the scope of his employment or agency, whether such acts are ministerial or discretionary, is immune from suit or liability for damages brought against him in either his individual or official capacity." S.D. Codified Laws Ann. §21-32-16: "To the extent such liability insurance is purchased pursuant to §21-32-15 and to the extent coverage is afforded thereunder, the state shall be deemed to have waived the common law doctrine of sovereign immunity and consented to suit in the same manner that any other party may be sued."

15 Va. Code §8.01-195.3: "However, except to the extent that a transportation district contracts to do so pursuant to §15.2-4518, neither the Commonwealth nor any transportation district shall be liable for interest prior to judgment or for punitive damages."

16 Wis. Stat. Ann. §895.46(6) provides a $250,000 cap on damages in any civil action or civil proceeding against a state officer, employee or agent, but not against the state or agencies thereof. See also note 17. (Updated August 4, 2010.)

17 Wis. Stat. Ann. §895.46(6) prohibits punitive damages from being recoverable in actions against a state officer, employee or agent, but not against the state or agencies thereof. See also note 16. (Updated August 4, 2010.)

18 Wyo. Stat. §1-39-101(b): "In the case of the state, this act abolishes all judicially created categories such as 'governmental' or 'proprietary' functions and 'discretionary' or 'ministerial' acts previously used by the courts to determine immunity or liability. This act does not impose nor allow the imposition of strict liability for acts of governmental entities or public employees."

Sources

Sources for the table include:

Jon L. Craig, ed., Civil Actions Against State and Local Government: Its Divisions, Agencies and Officers (Colorado Springs, Colo.: Shepards/McGraw-Hill, 2002).
Heather Morton, Statutes Regarding State Tort Claims Acts (Denver, Colo.: NCSL, 2007), unpublished research.
Unpublished survey data and other original research cited in Jaime Rall, Weather or Not? State Liability and Road Weather Information Systems (RWIS) (Denver, Colo.: NCSL, 2010).

Source for the introductory text and additional information about this topic are provided in the 2010 NCSL publication Weather or Not? State Liability and Road Weather Information Systems (RWIS), pp. 21 - 28.

Last updated September 8, 2010.