Battle Royal—Can Sovereign Immunity Prevent You from Recovering for Your Injuries?

Oprah Winfrey’s interview with Prince Harry and Meghan set the internet abuzz when it aired on Sunday. Some people were fascinated by the peek behind Buckingham Palace’s walls into British royal family politics. Others found themselves asking “didn’t we win the American Revolution so we’d never have to care about what British monarchs are up to again?” Regardless of which camp you belong to, the legacy of English kings and queens casts a long shadow that may impact your ability to successfully sue the government when you’ve been injured.

Like most former British colonies, the United States (except for Louisiana) is a common law jurisdiction. Rather than coming from statutes, the common law is a body of unwritten laws based on legal precedents and traditions—some with roots in medieval England. One common law doctrine is that of “sovereign immunity.”

What Is Sovereign Immunity?

The U.S. Supreme Court explained sovereign immunity in Price v. United States, saying, “It is an axiom of our jurisprudence. The government is not liable to suit unless it consents thereto, and its liability in suit cannot be extended beyond the plain language of the statute authorizing it.” Price v. United States, 174 U.S. 373, 375-76 (1899).  Put another way: sovereign immunity means that the government—whether federal or state—cannot be sued without its consent.

How Does the Government Give Its Consent to Be Sued?

Lawsuits against the government are not allowed unless it specifically consents to that type of lawsuit. The government gives its consent to being sued by passing laws carving out limited waivers of its sovereign immunity for certain lawsuits.

Federal Sovereign Immunity

The United States Government has waived limited portions of its sovereign immunity through two primary sources: the Federal Tort Claims Act (“FTCA”) (injuries caused by the tortious acts of federal employees) and the Tucker Act (claims arising out of contracts to which the federal government is a party).

The U.S. Supreme Court has limited the FTCA’s applicability to military servicemembers, however, under the Feres Doctrine. The Feres Doctrine gets its name from Feres v. United States, 340 U.S. 135, a 1950 case in which the Supreme Court held the United States Government is not liable for injuries to members of the armed forces they sustained while on active duty as the result of the negligence of other servicemembers. Rolling back part of the Feres Doctrine, the 2020 National Defense Authorization Act created an administrative process under the Department of Defense for hearing medical malpractice claims for personal injury or wrongful death by uniformed servicemembers, but the jury is still out on its practical effect.

Derivative Sovereign Immunity

But sovereign immunity doesn’t only apply to acts by the government itself. It also applies to others acting on its behalf—like contractors—through a concept called derivative sovereign immunity. Created in 1940 by the Supreme Court in Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940), derivative sovereign immunity provides contractors acting on the government’s behalf with the same protections against being sued as the government, so long as the contractor was complying with federal law and contractual instructions at the time of the injury.

Sovereign Immunity in Texas

Texas has a statute similar to the FTCA called the Texas Tort Claims Act. The Texas Tort Claims Act allows the state government to be sued in two scenarios: when a person is injured either by (1) a car crash involving a government employee acting in the scope of her employment, or (2) defects in government property (read more about premises liability claims here: Premises Liability and Open and Obvious).

One important thing to remember if you believe you’ve been injured by the negligence of the State of Texas or a state employee is that Section 101.101 of the Texas Tort Claims Act entitles the State to a “notice of claim” within six months of the alleged injury. Even though the statute of limitations for the underlying injury would generally allow you up to two years to file a lawsuit, failing to comply with the notice of claim requirement may result in your suit being dismissed. The required notice “must reasonably describe”:

(1)  the damage or injury claimed;

(2)  the time and place of the incident;  and

(3)  the incident.

Tex. Civ. Prac. & Rems. Code §101.101.

The notice requirement “do[es] not apply if the governmental unit has actual notice that death has occurred, that the claimant has received some injury, or that the claimant’s property has been damaged.” Id. Municipalities and counties also may shorten the notice requirement’s length below the standard six months. Id.

ERCOT and Sovereign Immunity—Plaintiffs May Be Left in the Cold

Like many Texans, you may have been impacted by the historic cold weather that hit the state in mid-February. If you were injured or your property was damaged as a result of a power outage, you may want to sue the Electric Reliability Council of Texas (“ERCOT”) for its role in the power outages. But the Fifth Court of Appeals in Dallas recently held that ERCOT is protected from lawsuits due to sovereign immunity it enjoys because—despite being a wholly private entity receiving no government funding—it performs a traditional government function by managing power generation and distribution throughout Texas. The Texas Supreme Court is currently reviewing the case, In re Panda Power Infrastructure Fund, LLC, 18-0792 (Tex. Aug. 24, 2018), and a decision is expected sometime this year. Until the Texas Supreme Court issues its decision, it’s possible that lawsuits against ERCOT for damages caused by power outages may be barred by sovereign immunity.

What to Do if You Are Injured by the Government or a Government Contractor

If you’ve been injured by the government or a government contractor, it’s important that you know your rights and act promptly to protect your ability to recover for your injuries. Our top-rated trial lawyers at Morrow & Sheppard are experienced with injury cases all over Texas and can help you assess what steps you should take to protect your rights. If you or a loved one were seriously injured as a result of the actions of the government or a government contractor, contact our injury lawyers for a free, confidential consultation.