When a person is injured on public property owned or controlled by a state, federal, or local government—or when a person or a person’s real or personal property is injured or damaged by a motor vehicle, piece of equipment, or other instrumentality—the question of whether the governmental entity that may be responsible for the alleged negligence can be sued and forced to pay any resulting court judgment for money damages.
An important legal issue to address in answering these questions is sovereign immunity. 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.
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.
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.
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.
Laws regarding sovereign immunity (and whether a person can sue and recover damages from a state, federal, or local government) vary significantly among states and in the federal system. These laws are usually located in the relevant state or federal statutes—and as applied by the courts in prior lawsuits and written by judges in prior court opinions known as case law.
In Delaware, the doctrine of sovereign immunity generally protects the state and its subdivisions, including agencies and municipalities, from being sued without their consent. This immunity extends to both immunity from suit and immunity from liability. However, Delaware, like other states, has enacted statutes that waive sovereign immunity in certain situations. For instance, the Delaware Tort Claims Act allows for the state to be sued for the negligent acts of its employees while acting within the scope of their employment, subject to certain limitations and conditions. Additionally, claims against the state for damages arising from motor vehicle accidents involving state-owned vehicles are also permitted under specific circumstances. It is important to note that any waiver of sovereign immunity must be explicitly stated in the law, and the conditions under which the state consents to be sued must be strictly followed. The federal government has a similar provision under the Federal Tort Claims Act, which waives the United States' sovereign immunity for certain torts committed by federal employees. Individuals seeking to file a claim against a governmental entity should consult with an attorney to understand the specific requirements and limitations imposed by the relevant statutes.
