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Suing the Government for an Injury (Tort Claims Acts)

Why an injury caused by a government employee or a public property defect follows different rules - sovereign immunity and the statutes that waive it, the written claim that must be presented to the agency before any lawsuit and the short deadline for it, the exceptions that keep immunity (discretionary functions, most intentional torts, certain activities), damage caps, and the no-jury and no-punitive-damages rules.

Informational only - this is not legal advice. These definitions explain general legal vocabulary in plain English. They are not advice about your situation, reading them creates no attorney-client relationship, and the law differs from state to state and changes over time. For advice you can rely on, speak to a lawyer licensed in your state.

What it means

The federal government, every state, and in most states their cities, counties, school districts and other public bodies are immune from suit unless a statute says otherwise. For injuries caused by the negligence of public employees - a government vehicle collision, a fall on a defective sidewalk, malpractice at a public hospital, injury at a public school or park - the statute that waives that immunity is a tort claims act, and it waives immunity only on its own terms. Those terms are procedural and unforgiving: a written claim describing the incident, the injury and the amount demanded must be presented to the correct public entity within a period that is usually much shorter than the ordinary limitation period, the entity then has a fixed time to accept, reject or ignore it, and only after that may a lawsuit be filed, itself within a further short period. A claim presented late, to the wrong body, or without the required content is usually fatal to the case, and courts apply the rules strictly because the waiver is a legislative grace.

The substantive waiver is also limited. The federal act, and most state acts, make the government liable in the way a private person would be under the law of the place where the act occurred, but withdraw the waiver for categories of conduct: the discretionary-function exception preserves immunity for policy-level judgements (how to allocate inspectors, whether to install a guardrail) while leaving liability for negligent execution of an operational task; most intentional torts are excluded at the federal level except those of law-enforcement officers; and immunities commonly cover the design of public improvements, the failure to provide police or fire protection, the issuance or denial of permits and licences, tax collection, the conduct of the military in wartime, and injuries to service members incident to service. Many states cap the damages recoverable against a public entity, bar punitive damages altogether, and try the case to a judge rather than a jury, as the federal act does. Claims against individual public employees are usually channelled into the claim against the entity, which then defends and indemnifies them.

Constitutional claims are different: a civil-rights suit against a state or local official for violating federal rights - excessive force, unlawful arrest, deliberate indifference to a prisoner's medical needs - proceeds under a separate federal statute that does not require a pre-suit claim, allows a jury and punitive damages against the individual, and is limited instead by qualified immunity and by the rule that a municipality is liable only for its own policy or custom; against federal officers the equivalent remedy is now very narrow. The two routes are frequently pleaded together. Public schools, public hospitals, transit authorities, housing authorities and state universities are covered by the tort claims act of their state, and claims involving federal facilities, federally funded health centres, the Postal Service and military hospitals go through the federal administrative-claim process.

Where this comes from

The federal waiver is the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2401(b) (the presentment and suit deadlines) and 2671-2680, with the exceptions at § 2680 (the discretionary function at (a), construed in Berkovitz v. United States, 486 U.S. 531 (1988), and United States v. Gaubert, 499 U.S. 315 (1991); intentional torts at (h)), the no-jury rule at § 2402, the bar on punitive damages at § 2674, and the incident-to-service bar of Feres v. United States, 340 U.S. 135 (1950); the presentment requirement is construed in McNeil v. United States, 508 U.S. 106 (1993), and its non-jurisdictional character in United States v. Wong, 575 U.S. 402 (2015). State and local liability is each state's tort claims act (California Government Code §§ 810-996.6, Texas Civil Practice and Remedies Code ch. 101, and New York General Municipal Law § 50-e and Court of Claims Act § 10 are three models). Constitutional claims are 42 U.S.C. § 1983, with municipal liability under Monell v. Department of Social Services, 436 U.S. 658 (1978), and the federal-officer remedy limited by Egbert v. Boule, 596 U.S. 482 (2022). The claim-presentment periods, the caps and the response periods are set by each act and are not stated here.

When people hire a lawyer for this

Anyone injured in circumstances that may involve a public entity - a government vehicle, a public building, road or sidewalk, a public hospital or clinic, a school, a police officer - should see a lawyer within days, because the claim deadline under most tort claims acts is measured in months rather than years and is not extended for ignorance of the rule. The first job is to identify every public body that might be responsible and present a compliant claim to each, since the wrong entity or a defective claim ends the case regardless of how clear the negligence is. A lawyer should also assess whether a civil-rights claim runs alongside the tort claim, because the two have different rules and remedies.

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Part of the LawyerLand plain-English legal glossary. Definitions are written from primary sources - statutes and court rules - and each entry states the authority it rests on, or says plainly when the doctrine is state law with no national rule.

If you cannot afford a lawyer, civil legal aid programmes provide free help with many of these problems: civil legal aid programmes by state.

Related free reference tools: statute of limitations for a personal-injury claim, by state, quoted from each state's official text - part of LawyerLand's legal reference tools.