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 West Virginia, sovereign immunity generally protects state and local government entities from being sued or being held liable for damages unless this immunity has been explicitly waived by statute. The doctrine of sovereign immunity is rooted in the principle that the government cannot be sued without its consent. West Virginia, like other states, may have specific statutes that waive sovereign immunity in certain situations, such as the West Virginia Governmental Tort Claims and Insurance Reform Act. This Act allows for limited waivers of immunity in cases of negligent acts by government employees while acting within the scope of their employment. However, there are strict notice requirements and damage caps that apply to such claims. Additionally, claims against the federal government are governed by the Federal Tort Claims Act (FTCA), which also waives sovereign immunity in certain cases, allowing for lawsuits against federal agencies for wrongful acts committed by their employees. It is important for individuals seeking to file a claim for injuries or damages to consult with an attorney to understand the specific provisions and limitations of these laws and to ensure compliance with procedural requirements.
