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WHAT HAPPENS WHEN THE STATE IS NEGLIGENT?

WHAT HAPPENS WHEN THE STATE IS NEGLIGENT?

What happens when a police officer causes a motor vehicle accident killing or seriously injuring someone, when a county or city school bus is driven or maintained negligently causing harm to students? How about when student at a State University is seriously injured or killed because of an improperly installed campus elevator? Accidents happen all the time, and sometimes accidents could have been avoided but for the negligence of another.

Under our State’s laws, a person harmed as a result of the negligence of another can sue for recovery of damages if the wrongdoer refuses to compensate the injured person. When negligence is the result of State action, different rules apply to a civil claim for damages. A tort claim against the State to recover for damages generally must be made under the State Tort claims Act (a tort claim is a civil lawsuit alleging a wrong was committed by another for which damages are due).

When it comes to the tort of negligence, the State Tort claims Act allows lawsuits despite State’s immunity from being sued by a citizen. Elementary school civics classes taught most of us that government is given the “power of the sovereign” by “the people.” Just like a king or queen (a sovereign) enjoyed immunity from prosecution or suit in times past, our federal, state and local governments enjoy a fairly robust degree of immunity from being sued by citizens. This is called sovereign immunity. In fact, the State of North Carolina has immunity from suit by citizens that is virtually absolute and unqualified. This immunity comes directly from our Federal and State Constitutions.

As you can imagine, from time to time, it outrages citizens to discover they can’t sue for the negligent acts of a government employee – especially when serious financial loss, bodily injury or death occurs. Whether the dispute involves land, personal property or bodily injury, the stakes can be high and few things are worse than being wronged without a way to recover what you are due. No doubt in part to political pressure, the State of North Carolina has (along with most States to varying degrees) expressly waived its sovereign immunity to negligence suits in certain circumstances.

The State Tort claims Act designates the North Carolina Industrial Commission (a body primarily responsible for hearing worker’s compensation claims) as the court to hear negligence claims against the State – claims against all departments, institutions or agencies of the State. The Commission is also the court to determine the amount of damages owed and to order payment for those damages if four things are found: (1) the state’s employee was negligent; (2) while acting within the scope of employment; (3) the employee’s negligence was the proximate cause of the injury; and (4) the plaintiff was not contributorily negligent (that means the person filing suit was not also negligent in contributing to his or her injuries).

If the agency has liability insurance at least equal to or greater than the damage recovery limits ($150,000 cumulatively to all claiming injury or damage to any one person) then the insurance policy limit replaces the State’s obligation for payment. Purchase of liability insurance above the limit acts as a waiver of sovereign immunity.

A claim against the State for negligence must be filed within three years after the injury occurs. Where a death results from the accident, the claim must be filed within two years by a personal representative of the deceased.

While sovereign immunity requires the State to expressly waive its immunity to allow suit by a citizen, there is no bar to filing suit against a state employee or contractor based on his or her negligence. So an employee of the State Highway Commission is personally liable for his negligence in the performance of his duties proximately causing injury to the property of another even though the State is immune. Similarly, if a contractor employed by the State Highway Commission is negligent and causes damage, he or she may be sued individually for negligence.

There is also an important distinction between public employees and public officials. Public employees are personally liable for their negligence, while a public official has the same immunity as the state.

A public official is usually one whose job is created by a law or statute, or uses discretion in carrying out one’s work (as opposed to merely carrying out the orders of a superior). For example, a commissioner of the parole board and a police officer are both public officials, since they are appointed pursuant to statutory authority, and each carries out or enforces the law using a discretionary exercise the State’s sovereign power. A school crossing guard or department of transportation truck driver is more likely a public employee, since both merely follow orders of a superior and have little to no discretion in their job.

A public official is only stripped of sovereign immunity when that official wantonly commits an act that a person of reasonable intelligence would know is contrary to his duty and which he intends to injure another. As long as a public officer lawfully exercises the judgment and discretion with which he is invested by virtue of his office, keeps within the scope of his official authority, and acts without malice or corruption, he is protected from liability (this standard is not the same as “intentional,” in fact, the State Tort Claims Act does not waive sovereign immunity for intentional torts).

All of these rules exist because our State government has immunity from being sued and even though we want to limit this immunity from time to time, our laws must be careful not too open the flood gates of liability. Three of the more important reasons for sovereign immunity are: (1) history (there has always been sovereign immunity for our State and Federal government –for better or worse); (2) the threat and burden of high costs of civil liability upon our State budget; and (3) the serious impact of civil liability a public officials effective use of his or her discretion (it could seriously limit their use of discretion – something we rely on for good government).

Of course, the obvious downside is the limitation on a citizen’s right to sue when he or she is harmed. Keep these concepts in mind when you debate lawsuits against the government, and if you or someone you know are harmed by the State or one of its departments or agencies.

Brad Champion is an attorney at Knox Law Center. The firm has 3 offices. Mr. Champion can be reached at the new Denver Office located at Highway 16 and 73 next to Avason Dentistry. Please call 704-315-2363 or 866-704-9059 (Toll free) or bchampion@knoxlawcenter.com.

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