Sovereign immunity (also known as governmental immunity) in American law was derived from the British common law doctrine that the King could do no wrong—and thus could not be sued. Sovereign immunity varies from state to state, but typically applies to state governments as well as the federal government.

But federal and state governments (generally the U.S. Congress and state legislatures) have the ability to waive their sovereign immunity. Waivers of sovereign immunity are usually included in state and federal statutes, and interpreted and applied by state and federal courts in court opinions.

For example, sovereign immunity protects the state and its various provisions of state government—including agencies, boards, hospitals, and universities—from liability and from suit—unless the immunity has been waived. Similarly, sovereign immunity protects political subdivisions—including counties, cities, and school districts—from liability and from suit—unless the immunity has been waived.

Thus, sovereign immunity encompasses two principles: (1) immunity from suit and (2) immunity from liability. Immunity from suit bars a suit against the state or other governmental entity unless the Legislature expressly gives consent. Immunity from liability protects the state or other governmental entity from judgments even if the Legislature has expressly given consent to sue.

In some states, when a governmental entity contracts, it is liable on contracts made for its benefit as if it were a private person. Consequently, when a governmental entity contracts with private citizens it waives immunity from liability. But the governmental entity does not waive immunity from suit simply by contracting with a private person. Legislative consent to sue is still necessary.

A party may establish legislative consent by referencing a statute or a resolution granting express legislative permission. Legislative consent to sue the state or other governmental entity must be expressed in clear and unambiguous language.

In South Carolina, sovereign immunity is a legal doctrine that protects the state government, its departments, agencies, and political subdivisions (such as counties, cities, and school districts) from being sued or held liable in lawsuits, unless this immunity has been explicitly waived by statute. The South Carolina Tort Claims Act is the primary statute that outlines the circumstances under which the state may be sued. This Act provides limited waivers of sovereign immunity, allowing for the state and its entities to be held liable in certain situations, such as negligence by government employees within the scope of their employment. However, the waivers are subject to strict procedural requirements and damage caps. It is important to note that even when the state enters into contracts, it does not automatically waive its immunity from suit; explicit legislative consent is still required. The consent must be clear and unambiguous, often provided through statutes or resolutions. Individuals seeking to sue the state or its entities must carefully navigate these legal provisions to determine if a waiver of immunity applies to their particular situation.