Many states have special statutes that list the defenses that can be used by the state to reassert its sovereign immunity. Because a state government can only act through its employees, some of these defenses focus on the actions of those employees and echo the doctrine of respondeat superior . Generally, this criterion begins by establishing that in most situations, the employees of the state government or of a political subdivision of the state government are immune from litigation under the doctrine of sovereign immunity. Thus, the statute will generally preserve sovereign immunity if the actions of the employee were discretionary in nature but will impose liability if the actions were performed outside the scope of their employment or outside of their official duties, or if their actions were reckless, malicious, wanton, or in bad faith. Sometimes the legislature will also create special statutes that impose liability for certain specifically named activities. Thus, a state might make school bus drivers liable automatically for not stopping at railroad crossings. Or it might make school nurses liable for not reporting a case of suspected child abuse to the proper authorities, and so on.

Question

1. Do you believe that state governments should be permitted to insulate themselves from lawsuits simply by neglecting to enact a statute that eliminates sovereign immunity? Explain.
2. If a state elects to forgo sovereign immunity should individual employees be held liable for their own torts? Explain.
3. Should it make a difference whether the employee’s acts are discretionary in nature? Explain.
4. Should state employees be held strictly liable, as is suggested above in the school bus driver and the school nurse examples? Why or why not?
5. Remember that when the state itself is forced to pay an award to a plaintiff, the money for that award comes out of tax money paid by citizens. Does this reminder change any of you answers here? Explain.