‘The Dirty Dozen’

An advocacy group recently came up with a list of 12 cases which it claims pervert the principle of sovereign immunity from negligence lawsuits.

Many of the cases in the so-called “dirty dozen” involved alleged battery during the performance of an official duty, such as a state trooper who may have inappropriately touched a female suspect during a pat-down search. Others concerned both state action and third party action, like a Georgia State football coach who allegedly told one player to physically assault a second player. Still others involved the controversial provision in the Georgia Tort Claims Act which makes government employees immune from assault and battery lawsuits in almost all circumstances.

Two additional cases – one about embezzlement of state funds and another concerning evidence tampering in the Attorney General’s office – are pending.

Procedure

Sovereign immunity comes from the medieval concept of the “divine right of kings.” The idea was that if the monarch could do no wrong, the monarch could not be sued in civil court. The concept survives today, albeit for a different purpose and in a much more limited form.

If there was no sovereign immunity, elected officials and appointed bureaucrats could be sued any time their actions, or inactions, harmed any person anywhere at any time. That is clearly no way to run a government.

But injured victims still have recourse, even if the tortfeasor (negligent person) was a government employee. These persons are normally accountable under an administrative review system, like the one for police officers accused of misconduct.

If there is no administrative remedy, the victim may pursue compensation under the Tort Claims Act. Before filing a lawsuit, the injured party must file a notice of claim with the state, county, or municipality. Strict time deadlines apply in these matters that are significantly shorter than the ordinary statute of limitations.

Exception

Not all acts entitle a government worker to limited immunity. Sovereign immunity does not apply to ministerial acts, or those that require no discretion. Unfortunately, Georgia courts interpret this provision very broadly on behalf of government employees. In the past, a large number of seemingly ministerial acts, such as the installation and maintenance of traffic lights, street cleaning, and garbage collection, have all been classified as “discretionary.”

But there are also a number of established ministerial acts, which the government is required to perform under almost all circumstances. Some examples include:

  • Police presence (but not emergency response time),
  • Medical care to inmates, and
  • Duty to train employees.

If you or a loved one was injured or killed due to nonperformance of a ministerial function, the government is automatically liable for damages.

Officials may have immunity in some areas, but victims have rights in all areas. For a free consultation with an assertive Fayetteville personal injury lawyer, contact the Wade Law Office. After hours visits are available.

 

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