MATTHIESEN, WICKERT & LEHRER, S.C. Hartford, WI ❖ New Orleans, LA ❖ Orange , CA ❖ Austin, TX ❖ Jacksonville, FL Phone: (800) 637-9176 [email protected] www.mwl-law.com

MUNICIPAL/COUNTY/LOCAL GOVERNMENTAL IMMUNITY AND TORT LIABILITY IN ALL 50 STATES

“Governmental immunity” concerns itself with the various legal doctrines or statutes that provide , local government entities, and political subdivisions immunity from tort-based claims, as well as exceptions from and limitations to that immunity. Generally, a state government is immune from tort suits by individuals under the doctrine of sovereign immunity. Local governments, municipalities (), , , and other political subdivisions of the state, however, are immune from tort suits by virtue of governmental immunity. This is because the state grants them immunity, usually in the state’s Constitution. This chart deals with governmental immunity and liability of municipal, county, and local government in all 50 states. It should be noted that lawsuits against local governmental entities, their officers, and employees are frequently asserted under federal law, e.g., 42 U.S.C. § 1983, or other similar statutes. This chart deals only with the separate body of law governing claims against local governments. It does not cover federal claims under the Federal Tort Claims Act (FTCA) (28 U.S.C. § 2674) or claims of negligence against state governments, the latter of which is the subject of another chart that can be found HERE. The broader doctrine of sovereign immunity traces its common law origins to the notion that the king made the laws, and thus anything the king did was perforce legal. The doctrine was thought to pass through to several states before the founding of this . When the Constitution was drafted in 1787, Article III raised questions about this principle by exposing states to suits from citizens of other states and foreign states. U.S. Const. Art. III, § 2 (“The judicial Power shall extend ... to Controversies ... between a State and Citizens of another State ... and between a State ... and foreign States, Citizens or Subjects”). In 1793, the U.S. Supreme Court dealt precisely with this issue in Chisholm v. Georgia and abolished the doctrine of sovereign immunity with respect to states. Chisolm v. Georgia, 2 U.S. 419 (1793) (“the Constitution warrants a suit against a State, by an individual citizen of another State”). Several years later, in response to Chisholm, Congress proposed, and three-fourths of the states ratified, the Eleventh Amendment, which reinstated states’ sovereign immunity, at least to the extent that Article III encroached upon it. Therefore, there could be no valid suit against a government entity. By the early 1800s, this sovereign immunity was adopted by nearly every state. However, the enjoyment of sovereign immunity is limited to government bodies that are truly “sovereign,” namely the U.S. federal government and each state government. This presumed immunity was based on the belief that governments would be paralyzed if they faced potential liability for all actions of their employees. Sovereign immunity today has been limited or eliminated, at least in part, in most jurisdictions by either legislative or judicial action. The doctrine of sovereign immunity varies from state to state but is usually contained either in a statutory framework (such as a Tort Claims Act) or within judicial and case decisions. Excluded from the doctrine are cities and municipalities, which are considered to be mere creatures of the legislature, and which have no inherent power and must exercise delegated power strictly within the limitations prescribed by the state legislature. As such, by default, municipalities are liable for their actions unless shielded by state law. The constitution of a particular state may grant that state and its political subdivisions “absolute sovereign immunity” — meaning that those local government entities are shielded from suit unless the legislature explicitly creates a statutory exception waiving immunity or the or local

WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 1 Last Updated 5/20/21 government entity waives its immunity by contract and purchases insurance to cover any resulting liability obligations. Immunity of local government and political subdivisions is known as “governmental immunity” because it is granted by state government as opposed to common law.

State Immunity vs. Political Immunity Most states have two parallel systems and bodies of law for governmental tort immunity: one for the state and another for political subdivisions created by the state to help fulfil their obligations (county, , , school , water , park districts, airport districts, etc.). A “political subdivision” is a local governmental entity that is in some ways distinct from or a subset of the state, but nevertheless exercises a “slice of state power.” They include counties, cities, towns, , and special districts such as school districts, water districts, park districts, and airport districts. In some states, there are separate Acts covering each – as in Pennsylvania where there is a State Sovereign Immunity Act covering the liability of the state (referred to as the “Commonwealth” in Pennsylvania) and a State Tort Claims Act covering the liability of political subdivisions. Although it varies from state to state, much of the law involving governmental immunity focuses on whether (1) the employee who caused the injury was acting within the scope of the employee’s duties and (2) whether the activity in which the employee was engaged was the type of act which public policy deems worthy of granting immunity. It is almost universally agreed that a total waiver of government immunity is undesirable. However, creating standards and tests to separate those acts that should be protected from those that should create liability has been a difficult, complex, and an imperfect effort. There is a lot of blurring and conflating of concepts used to describe and categorize local government actions from state to state. However, in general, the concepts and terms used have distinct differences and you should be familiar with them. Governmental / Discretionary Acts For many years, local government was liable only for proprietary acts and not governmental acts. The rule attempted to distinguish between municipal activities which are inherently public in nature and those which merely supplant or parallel the workings of the private sector. The rule made a “vertical” classification of activities, in the sense that broad spheres of official concern such as education, police and fire protection, hospitals, garbage collection, maintenance of streets and sidewalks, sewage, and provision of water, electricity and transportation, are each labeled either governmental or proprietary. Once a service or action was classified as governmental, local governmental immunity applied on all levels in the provision of this governmental service. This simple test failed to take into account the nature of the activity. At its simplest, this distinction looked like this: Governmental Act: Local government is not liable – had immunity. Proprietary Act: Local government is liable – immunity waived. Governmental functions are those activities that are “discretionary, political, legislative, or public in nature and performed for the public good on behalf of the State.” Millar v. Town of Wilson, 23 S.E.2d 340 (N.C. 1942). They are undertakings that are commercial or chiefly for the private advantage of the compact community. Courts had a hard time applying these inexact standards to particular activities, causing irreconcilable splits of authority and confusion. For example, in North Carolina, the operation of a municipal airport has been considered a proprietary function, even though a statute declared it to be governmental. Rhodes v. City of Asheville, 52 S.E.2d 371 (N.C. 1949). Proprietary functions are undertakings that are commercial or chiefly for the private advantage of the compact community. A proprietary function is one that a private entity can perform and is not uniquely for the benefit of the general public. The discretionary function defense applies to discretionary governmental functions, but not for proprietary (or ministerial) functions. There are many grey areas where states reach difference results, such as whether the design of highways is governmental or proprietary. Many states do not consider personal medical services, such as prenatal care clinics and general indigent medical care clinics, to be governmental functions and apply ordinary medical malpractice law to them, although some states do include these under governmental immunity. On the other hand, if the medical

WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 2 Last Updated 5/20/21 service is related to protecting the public, rather than just helping one person, it will be considered governmental. In this regard, the treatment and testing for tuberculosis would be a governmental function. The older governmental (immune) v. proprietary (not immune) rule looked only to the level at which the decision to undertake the activity was made. Over time, this simple distinction lost its vitality as an accurate or adequate rationale for the immunity privilege. As one court put it: Perhaps the best encapsulation of our sentiments concerning the governmental-proprietary standard was articulated by Justice Lavendar of the Oklahoma Supreme Court when he stated “Judicial attempts to grapple with what has become a multi-addered medusa has resulted in confusion and uncertainty all too painfully apparent to legal scholars, and an inability on the part of the courts to evolve any definitive guidelines. Vanderpool v. State, 672 P.2d 1153 (Okla. 1983). Inconsistency developed with regard to which activities were which. Even the U.S. Supreme Court expressed dissatisfaction with and condemned this simple distinction. Indian Towing Co. v. U.S., 350 U.S. 61 (1955). A concept of municipal immunity driven by a purpose not to jeopardize the quality and efficiency of government by exposing the exercise of discretion in the formulation of government policy to tort liability led to an evolved concept of municipal immunity under which any function (governmental or proprietary) can now come within a discretionary function exception to either liability or immunity.

Discretionary vs. Ministerial Acts For many years, the broader distinction of proprietary vs. governmental was the simple but inadequate litmus test. Over time, however, it became infused with the narrower terminology of ministerial vs. discretionary. Rather than local government automatically being immune from suit whenever a governmental act was involved, state law began to borrow the discretionary function rule which originated with the Federal Tort Claims Act in 1946, which exempted from liability any act based on the exercise or performance (or the failure to exercise or perform) a discretionary function or duty, whether or not the discretion is abused. A discretionary act is a government action performed according to legal authority, established procedures or instructions from a superior, without exercising any individual judgment. It can be any act a government employee performs in a prescribed manner, without exercising any individual judgment or discretion. The repair of equipment on a school playground, although a governmental function, was not of such a nature as to pose threats to the quality and efficiency of government if tort liability attached. In this fashion, the concept of a discretionary act test found its way into the field of local governmental immunity. In general, only discretion and judgment at the highest levels call for the imposition of governmental immunity for local government. Even this test, however, has a lack of an adequate and clear standard for determining what a discretionary function is. No state legislature has attempted to clearly define what this term means. State courts have developed three basic approaches or interpretations: (1) Literal or semantic definition. The problem with this approach is that there is some level of discretion involved in almost every governmental act. (2) Standard which distinguishes “planning level functions” from “operational level functions.” This generally means that only basic policy decisions are immune. A policy decision (state policy of maintaining highways) may be discretionary, but subsequent ministerial actions undertaken to implement the policy decision (how roads will be salted or where highway signs will be placed) are considered ministerial acts for which liability may attach. Utah, Hawaii, and Alaska are examples of states which use this distinction. If an act takes place on a higher, planning level, it is discretionary and immune. (3) Flexible approach which evaluates the particular facts in light of the purpose of the exception. Many states, often those without a statutory discretionary function rule, look past the planning/operational distinction, and instead inquire whether the decision is the kind that is delegated to a coordinate branch of government and are therefore immune. Does the act involve a basic governmental policy, program, or objective? Is the act essential to the accomplishment of that policy, program, or objective? Does it require evaluation, judgment, and expertise? Oregon and Washington are examples of this approach. There is very little difference in the effect of this approach and the second approach, and the difference is mainly one of semantics.

WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 3 Last Updated 5/20/21 None of these approaches clearly defines or sets forth those activities for which a government is liable. There is no immunity from liability arising out of the negligent performance of a proprietary or ministerial act by a local governmental employee. A ministerial act is one performed under a given set of facts and in a prescribed manner in obedience to the mandate of legal authority (e.g., statute, established procedure, instructions from a superior, or other legal authority) without regard to, or the exercise of, the individual judgment of the local government employee on the propriety (i.e., the appropriateness) of the act being done. In other words, the local government employee is compelled by law to do the act and to do it in a particular manner. An act is usually ministerial even though the employee must use judgment to determine if a set of facts exist that make it necessary to perform the act. Examples of a ministerial act include entry of an order by a court clerk, notarizing a document, issuing a building permit, approving a real estate subdivision, and determining the existence of facts and applying them as required by law, without any discretion. Acts which would not be considered ministerial include decisions about application of a tax law, auditing an income tax return, and determining facts and applying law to those facts. Immune “discretionary” actions include governing and supervisory decisions, such as how much priority is placed on the enforcement of ordinances and codes, the allocation of resources, the number of staff assigned to a project, the timing or placement of traffic lights, and how laws are enforced. “Proprietary” actions, on the other hand, include the method of performing government functions. For example, the negligence of a municipal employee that results in injury can expose the municipality to tort liability. The waiver of sovereign immunity in such a case only opens the door to litigation; it does not change burdens of proof or elements of a tort. In order to prevail in a tort suit, a plaintiff must still demonstrate all the necessary elements of a tort: duty, breach, causation, and damages. Under common law, the enjoyed absolute governmental immunity while municipalities did not. Although it varies from state to state, today, municipalities are only immune for governmental functions, i.e., those inherent state police powers that embody the government’s fundamental legal obligation to preserve the general public health, safety, and welfare. They are generally not immune from liability for proprietary functions, i.e., when acting like a private business on their own behalf and/or for the benefit of their own citizens. When injuries arose from a proprietary function, municipalities can often be held liable like a private individual for negligence.

Public Duty Doctrine Separate and apart from the concepts of sovereign immunity and official immunity, some states adopt the public duty doctrine. The public duty doctrine states that a public employee is not civilly liable for the breach of a duty owed to the general public, rather than a particular individual. This public duty rule is based on the absence of a duty to the particular individual, as contrasted to the duty owed to the general public. This doctrine does not insulate a public employee from all liability, as he or she could still be found liable for a breach of ministerial duties in which an injured party had a “special, direct, and distinctive interest.” See, e.g., Southers v. City of Farmington, 263 S.W.3d 603 (Mo. 2008). It is not an affirmative defense, but rather delineates the legal duty the defendant public employee owes the plaintiff. In effect, the applicability of the public duty doctrine negates the duty element required to prove negligence, such that there can be no cause of action for injuries sustained as the result of an alleged breach of public duty to the community as a whole. The public duty doctrine holds that a government agent cannot be civilly liable – even for breach of a ministerial duty – if that duty is owed to the general public as opposed to a particular individual.

Federal Civil Rights Liability (42 U.S.C. § 1983) The Federal Civil Rights statute is the basis by which a state or local government employee can assert a civil rights claim. 42 U.S.C. § 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. The most common claims brought under § 1983 are for violation of constitutional rights, including:

WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 4 Last Updated 5/20/21 • First Amendment rights of freedom of religion, speech, and press; • Fourth Amendment protections against searches and seizures; • Fifth Amendment protection from self-incrimination; • Eighth Amendment protection against cruel and unusual punishment; and • Fourteenth Amendment protections against deprivations of life, liberty, or property without due process. Under § 1983, “any citizen” can be that person if they, while acting “under color of state law,” deprived the plaintiff of their constitutional rights, and the challenged conduct caused a constitutional violation. The “color of law” element is established where a public employee acts pursuant to their office or in their official capacity. Summary The development of the immunity standard for local government and political subdivisions has evolved from attempts to create a precise, predictable semantic definition into a flexible, if unpredictable, guideline. There is rarely an easy answer to whether a particular act on the part of local government is immune, which is why these cases are litigated so frequently. For most states, if an act constitutes “governing” (high-level policy decision for which coordinate branches of government are responsible), immunity will apply. This is most often referred to as the “discretionary function exception.” Where along the continuum of decision-making an act falls is the stuff of lawsuits and legal advocacy. Most states have abandoned a simple formula and gone with the “planning-level function” (proprietary) acts being immune and the “operational-level function” (ministerial) acts being subject to liability in tort. This is unfortunate for the drafters of charts like this one, because most states have avoided a mechanical categorizing of government actions into “immune” or “not immune” columns. Generally, however, the terms “proprietary”, “ministerial” and “planning level” usually go together and describe functions for which local government is liable and for which immunity has been waived. The terms “governmental”, “discretionary” and “operational level” usually go together and describe functions for which local government is not liable and retains its immunity. NOTE: This chart concerns itself with issues regarding governmental immunity granted to and liability of “political subdivisions” (i.e., local government entities created by the states to help fulfill their obligations, including counties, cities, towns, villages, and special districts such as school districts, water districts, park districts, and airport districts). The immunity granted to and liability of individual state governments and their employees are addressed in detail in our sister chart entitled “State Sovereign Immunity and Tort Liability In All 50 States” found HERE.

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CLAIMS/ACTIONS STATE LEGAL AUTHORITY NOTICE DEADLINES COMMENTS/EXCEPTIONS DAMAGE CAPS ALLOWED For years, municipalities and counties were immune Municipality $100,000 Per Person to tort liability in the In 1984, Congress enacted the Local $300,000 Per Occurrence Municipality City/town liability limited $100,000 Prop. Damage exercise of to neglect of employees. Government Antitrust Act (15 U.S.C. governmental Sworn statement/claim must be Employee only liable for §§ 34-36 (1984)), which eliminates Ala. Code §§ 11-93-1 (immune), as opposed filed with clerk within six (6) intentional act. Ala. Code § certain damage suits under the through 11-93-3. to proprietary (not months, detailing manner of 11-47-190. Clayton Act: treble damage claims by Association of County immune) functions. injury, damages, etc. Ala. Code § “persons,” single damage claims by Commissions of Alabama Hilliard v. City of 11-47-23. A municipality has duty to the U.S., and treble damage claims maintain sidewalks in safe established a self- ALABAMA Huntsville, 585 So.2d County by States. Protection against such insurance fund for local 889 (Ala. 1991). condition and is liable for damage suits extends to local Itemized, verified claim must be government liability negligent failure to do so, governments. That changed in 1975. filed with Commission within 12 Johnson v. City of Opelika, insurance. Ala. Code §§ Local government months and must be acted on 71 So.2d 793 (Ala. 1954). Undecided whether a governmental 11-30-1, et seq. entities can now be employee can be sued in his within 90 days prior to suit or is County Limits apply to municipal sued without regard to considered disallowed. Ala. Code individual capacity for actions done or county employees sued former governmental- § 11-12-8. County can be sued in any on behalf of his employer. Suttles v. in individual capacities. proprietary distinctions. court. Ala. Code §§ 6-5-20, Roy, 75 So.3d 90 (Ala. 2010). Suttles v. Roy, 75 So.3d 90 Jackson v. City of 11-2-1. (Ala. 2010). Florence, 320 So.2d 68 (Ala. 1975).

WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 6 Last Updated 5/20/21 CLAIMS/ACTIONS STATE LEGAL AUTHORITY NOTICE DEADLINES COMMENTS/EXCEPTIONS DAMAGE CAPS ALLOWED Section 09.65.070 does not shield municipalities from Discretionary Function Official “operational negligence.” Immunity Municipality is liable for Municipality or its employees may negligently performing No Notice Requirements not be sued if claim is based on particular operations to performance/failure to perform In Johnson v. City of Fairbanks, implement the broad discretionary function, even if the Actions, Immunities, 583 P.2d 181 (Alaska 1978), the policy decision (e.g., discretion is abused. Alaska Stat. § Defenses, and Duties. court announced notice of claims operating motor vehicle or 09.65.070(d)(2). Qualified Immunity provisions in city charters negligent damage to storm (Fairbanks city charter required or sewer). City of Seward v. Discretionary acts are acts “that ALASKA No action can be 120 days’ notice) are impliedly require personal deliberation, No Damage Caps maintained against a Afognak Logging, 31 P.3d prohibited because they impede 780 (Alaska 2001). decision, and judgment.” Planning municipality, unless implementation of statutes which functions (immune). Operational “Planning decision” exception. Alaska Stat. seek to further a specific functions (not immune). Samaniego involves policy formulation § 09.65.070(a). statewide policy with reference v. City of Kodiak, 2 P.3d 78 (Alaska (immune). “Operational to the time within which suits 2000). decision” involves policy may be filed. execution or Under the Planning/Operational Test implementation (not for Discretionary Function Immunity, immune). Regner v. N. Star liability is the rule, immunity is the Volunteer Fire Dep’t, Inc., exception. 323 P.3d 16 (Alaska 2014).

WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 7 Last Updated 5/20/21 CLAIMS/ACTIONS STATE LEGAL AUTHORITY NOTICE DEADLINES COMMENTS/EXCEPTIONS DAMAGE CAPS ALLOWED Actions Against Public Entities or Public Employees Act. Liability determined by All actions against public entities Public entities are nature of act performed. None granted absolute or public employees shall be Absolute immunity granted for (1) Policymaking vs. immunity for the brought within one (1) year after Judicial/Legislative functions; and (2) No law shall limit the Operational exercise of a judicial, the cause of action. A.R.S. § 12- Administrative functions involving amount of damages to be legislative, or 821. Operational acts concern government policy. A.R.S. § 12- recovered for causing the ARIZONA discretionary function. Claims against the State shall be routine, everyday matters 820.01(A) (No Easy Test). death or injury of any person. Ariz. Const. Art. II, A.R.S. § 12-820.01 filled within 180 days after the not involving broad policy Unless there is gross negligence, § 31. No punitive (1984). action occurs. A.R.S. § 12-821.01. factors. Policymaking acts qualified immunity granted for involve whether one damages against the “Public entity” means Deemed denied if no response actions listed in § 12-820.02(A). general course of action State. A.R.S. § 12-820.04. the state or any within 60 days. over another. political subdivision of the state. A.R.S. § 12- 820(7).

Liability of State and All political subdivisions Ark. Code § 21-9-301 extends Local Governments. must carry liability immunity only for acts of negligence, Legislature abolished insurance on their motor but not for intentional torts. A failure “governmental” vs. vehicles. Ark. Code § 21-9- to correct that negligence may be No Punitive Damages construed as intentional. Robinson v. “proprietary” 303(a). Mosier v. Robinson, 722 F. City of Ashdown, 783 S.W.2d 53 (Ark. distinction. Ark. Code Supp. 555 (W.D. Ark. Direct action against 1990). §§ 21-9-301 through municipal insurer allowed. 1989). 21-9-303 (1969). Unclear who has burden of proving Little Rock Port Auth. v. Municipal auto insurance liability insurance. Helena-West Qualified Immunity McCain, 752 S.W.2d 44 must be at least $25,000 Helena School Dist. v. Monday, 204 ARKANSAS Municipal governments None (Ark. 1988). per person, $50,000 per S.W.3d 514 (Ark. 2005). and political Each county, municipal occurrence, and $25,000 subdivisions immune corporation, school No recovery for plaintiff covered property damage. Ark. except to extent district, special under workers’ compensation. Helms Code § 21-9-303. v. Southern Farm Bureau Cas. Ins. covered by liability improvement district, or If no insurance, city is Co., 664 S.W.2d 870 (Ark. 1984). insurance. any other political self-insurer. Ark. Code § Legislative Immunity subdivision is authorized to 21-9-301. Massongill v. Cty. of provide for hearing and Scott, 991 S.W.2d 105 settling tort claims against (Ark. 1999). it. Ark. Code § 21-9-302.

WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 8 Last Updated 5/20/21 CLAIMS/ACTIONS STATE LEGAL AUTHORITY NOTICE DEADLINES COMMENTS/EXCEPTIONS DAMAGE CAPS ALLOWED California Tort Claims Act. A public entity includes city, county or political Public entity liable if subdivision. Cal. Gov’t the act or omission Personal injury/property claim Code § 811.2. would, apart from this within six (6) months after accrual A public employee is not liable for an section, have given rise of the cause of action. All other Public entity is liable for injury resulting from his act or to a cause of action claims shall be presented within injuries proximately caused omission where the act or omission against that employee. one (1) year. Cal. Gov’t Code § by their employee’s acts or was the result of a discretionary act. Cal. Gov’t Code § 815.2 911.2. omissions except when Cal. Gov’t Code § 820.2. that employee is immune None Numerous immunities Board must respond within 45 Public entities not liable for injuries from liability. Cal. Gov’t No punitive damages CALIFORNIA provided. Cal. Gov’t days. Then six (6) months to file caused by misrepresentation. Cal. Code § 815.2. Code §§ 815 - 996.6 suit. Gov’t Code § 818.8. against the State. Cal. A public entity is liable for Gov’t Code § 818. (1963). “Substantial compliance” may be Public entities are not liable for an death or injury proximately A public entity may sue found even if deficiencies. injury caused by adopting or failing caused by a negligent or and be sued. Cal. Gov’t to adopt an enactment or by failing See Cal. Gov’t Code §§ 910 and wrongful act or omission in Code § 945. to enforce any law. Cal. Gov’t Code § 915 for claim filing requirements. the operation of any motor 818.2. Public employee liable See §§ 911.4 to 912.2 re: leave to vehicle by a public for injury to the same file late claims. employee acting within the extent as a private scope of his employment. person. Cal. Gov’t Code Cal. Veh. Code § 17001. § 815.

WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 9 Last Updated 5/20/21 CLAIMS/ACTIONS STATE LEGAL AUTHORITY NOTICE DEADLINES COMMENTS/EXCEPTIONS DAMAGE CAPS ALLOWED A public entity includes city, county, or political subdivision. Colo. Rev. Stat. § 24-10-103. Immunity is waived for Colorado contract actions, but not Governmental torts. Colo. Rev. Stat. § 24- Immunity Act (CGIA). 10-101. Immunity is waived for the following: Claims against public entity must A public entity is Public entity immune from • Operation of motor vehicle, except be filed within 182 days of the immune from liability in tort liability. Colo. Rev. emergency vehicle. all tort claims for injury injury. C.R.S. § 24-10-109(1). $350,000 per person; Stat. § 24-10-106. • Dangerous condition of building. except as otherwise File with Atty General. $900,000 per occurrence, The CGIA (C.R.S. §§ 24-10- • but no person may COLORADO provided. Dangerous condition of street. File suit after denial or 90 days 105 and 24-10-106(1)) recover more than • Operation/maintenance of public Immunity is waived has passed. C.R.S. § 24-10-109(6). permits negligence suits $350,000. C.R.S. § 24-10- water facility, gas facility, under certain Use Statute of Limitation for that against the State’s political 114. sanitation facility, electrical facility, circumstances and type of action. C.R.S. § 24-10- subdivisions, including power facility, swimming facility. exceptions to that 109(5). actions against Denver waiver are provided. Water if it was negligent C.R.S. § 24-10-106. C.R.S. §§ 24-10-101 – and such negligence arose 120 (1971). from the “operation and maintenance” of “a public water facility.” Great Northern Ins. Co. v. Denver Water, 2020 WL 6680360 (D. Colo. 2020).

WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 10 Last Updated 5/20/21 CLAIMS/ACTIONS STATE LEGAL AUTHORITY NOTICE DEADLINES COMMENTS/EXCEPTIONS DAMAGE CAPS ALLOWED Municipalities generally are liable for damages to Liability of Political persons or property Subdivisions. caused by: C.G.S.A. § 52-557n. (1) Negligent acts by (codified qualified employees within the No liability for acts which require the immunity established scope of their employment exercise of judgment or discretion as by common law). Written notice must be filed with or official duties; an official function of authority granted by law. C.G.S.A. § 52- Connecticut in minority the clerk of such municipality (2) Negligence in operation 557n(a)(2). of states that still make within six (6) months after such of enterprise for “special distinction between cause of action has accrued. corporate benefit or Other statutory exceptions covering governmental acts Statute of Limitation: An action pecuniary profit” (e.g., particular activities or conditions are (qualified immunity against municipality must be water supply, sewer, set forth in C.G.S.A. § 52-557n(b). from discretionary acts commenced within two (2) years municipal parking garage, No immunity when performing requiring judgment or after the cause of action. C.G.S.A. or golf course); and following governmental functions: discretion) and § 7-101a(d). (3) Creation or CONNECTICUT (1) maintenance of a park system; None proprietary functions Claims for injuries resulting from participation in the (2) construction of storm water (no immunity for defective highways, sidewalks, creation of a nuisance. sewers (a governmental function ministerial acts roads, or bridges must be brought C.G.S.A. § 52-557n(a)(1). because it is a duty imposed by the performed in a within two (2) years and notice However, this liability is state on municipalities to maintain prescribed manner within ninety (90) days. C.G.S.A. significantly limited by highways within its limits); without judgment or §§ 13a-149, 13a-144. Section 13a- several exceptions. (3) use of municipal property as a discretion). 149 has savings clause that Suits can be brought public park; and Exceptions to qualified forgives inaccuracy in notice if no against state or (4) traditional governmental immunity: intent to mislead. municipality for defective functions such as the operation of (1) failure to act leads or poorly maintained roads jails, public libraries, and city garbage to imminent harm; and bridges. C.G.S.A. § services. (2) statute provides for 13a-149. cause of action; and For additional liability (3) intentional act. statutes, see C.G.S.A. §§ 13a-144 to 13a-153e.

WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 11 Last Updated 5/20/21 CLAIMS/ACTIONS STATE LEGAL AUTHORITY NOTICE DEADLINES COMMENTS/EXCEPTIONS DAMAGE CAPS ALLOWED Counties, municipalities, and political subdivisions retain their governmental immunity with three No immunity when performing Any municipality may enact a statutory exceptions. governmental function: notice requirement by ordinance $300,000 per occurrence. provided it is no longer than one Depends on whether acts (1) Ownership, maintenance, or use Delaware County and (1) year. 10 Del. Code § 4013. are discretionary or of motor vehicle; If municipality purchases Municipal Tort Claims ministerial. Discretionary (2) Liability for the construction, liability insurance in DELAWARE Must give notice of actions Act. acts are subject to operation, or maintenance of any excess of $300,000, then against City of Wilmington within 10 Del. Code § 4013. immunity; ministerial acts public building; and that is the limit. 10 Del. one (1) year of date cause of can be subject to liability (3) Liability for a discharge of toxic Code § 4013. action accrued. 10 Del. Code § under one of the three substances. 8124. exceptions. The distinction 10 Del. Code § 4012. is always one of degree. Sussex County v. Morris, 610 A.2d 1354 (Del. 1992).

WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 12 Last Updated 5/20/21 CLAIMS/ACTIONS STATE LEGAL AUTHORITY NOTICE DEADLINES COMMENTS/EXCEPTIONS DAMAGE CAPS ALLOWED Mayor can settle claims and suits in his discretion when: (1) Arises out of ownership, maintenance, Sovereign immunity for discretionary or use of motor vehicle acts. (gross negligence if No sovereign immunity for emergency vehicle); or ministerial acts. Powell v. District of Claims Against District. Notice of claim to the Mayor of (2) Liability for the Columbia, 602 A.2d 1123 (D.C. 1992). The Mayor of D.C. is the D.C. within six (6) months. construction, operation, or The test for discretionary function is empowered to settle, in Must include approximate time, DISTRICT OF maintenance of any public whether it poses a threat to the his discretion, claims place, cause and circumstances of None COLUMBIA building; or quality and efficiency of government against D.C. D.C. Code § the injury or damage. (3) Liability for a discharge if liability is imposed. Shifrin v. 2-401 through § 2-416 Police report is sufficient notice. of toxic substances. Wilson, 412 F. Supp. 1282 (D. D.C. (1929). D.C. Code § 12-309. D.C. Code § 2-412. 1976). District may be liable for Pothole accidents, fallen trees, negligence in the damage caused by D.C. government, performance of a its property or its employees. proprietary function such as maintenance of a sewer system. D.C. v. Billingsley, 667 A.2d 837 (D.C. 1995).

WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 13 Last Updated 5/20/21 CLAIMS/ACTIONS STATE LEGAL AUTHORITY NOTICE DEADLINES COMMENTS/EXCEPTIONS DAMAGE CAPS ALLOWED Two Exceptions To Immunity: A. Discretionary Government Act. (1) Does act involve governmental Florida’s Sovereign Four categories of public policy, program, or objective? Immunity Statute. Notice of claim must be given duty doctrine acts: $200,000 per person. (2) Is act essential to accomplish that within three (3) years (two (2) (1) Legislative, permitting, $300,000 per occurrence. Government entities policy, program, or objective? years for wrongful death and six licensing: Immune. (including counties and (3) Does act require exercise of Limit may be increased if (6) months after settlement for (2) Law enforcement. municipalities) liable for policy evaluation, judgment, and municipality has liability contribution claims). F.S.A. § Immune. damages resulting from expertise? limits in excess of this. 768.28(14). (3) Capital improvement/ FLORIDA negligent acts of public (4) Does the government agency Judgment in excess of property control: Liability employees in the scope File suit after denial or after six possess the legal authority and duty statutory limits of private person. of their employment, if (6) months. F.S.A. § 768.28(6)(d). to do the activity? recoverable only if a private person would (4) Professional, specially authorized by Statute of Limitations: Suit must If these questions can be answered be liable under similar educational, and general legislature. be filed within four (4) years after “yes”, the government act is circumstances. F.S.A. § services: Duty of care. claim accrues. F.S.A. § 768.28(14). “discretionary.” F.S.A. § 768.28(5). 768.28(1) (1973). F.S.A. § 768.28. B. Public Duty Doctrine. See CLAIMS/ACTIONS ALLOWED Column.

WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 14 Last Updated 5/20/21 CLAIMS/ACTIONS STATE LEGAL AUTHORITY NOTICE DEADLINES COMMENTS/EXCEPTIONS DAMAGE CAPS ALLOWED (1) Immunity for governmental acts (decision to erect traffic sign, construction and Notice of Claim must be maintenance of sewer presented within six (6) months system, operation of police to governing authority of Liability of Municipal and fire). municipality (12 months for Corporations For Acts (2) Immunity for county). Municipality waives immunity by the or Omissions. discretionary acts unless if purchase of liability insurance. Motor Vehicles. Action on the notice of claim malice intent (act not O.C.G.A. §§ 36-33-1 to O.C.G.A. § 36-33-1. Owens v. City of $500,000 Per Person must be taken by the municipality required by statute to 36-33-6 Greenville, 722 S.E.2d 755 (Ga. $700,000 Per Occurrence within 30 days. The running of perform, decision not to In absence of liability 2012); O.C.G.A. §§ 33-24-51, 36-92- $50,000 Property Damage GEORGIA the statute of limitations is inspect sidewalk, police insurance, municipality 2, and 36-33-1. suspended during the time that pursuit). O.C.G.A. § 36-33- O.C.G.A. § 36-92-2. (city, town, or ) is Immunity waived for operation of the demand for payment is 2. No Punitive Damages immune from liability in motor vehicles to the greater of pending before such authorities (3) Liability for ministerial all tort claims for injury policy limits or statutory limits. O.C.G.A. § 36-92-4. without action on their part. acts (corporate gain or except as otherwise O.C.G.A. §§ 33-24-51 and 36-92-1. O.C.G.A. § 36-33-5. profit, electric power provided. Jurisdiction is in state or superior supply, buses, park, court where local government maintaining streets entity resides. O.C.G.A. § 36-92-4. negligence in the execution of plans or specifications, nuisance). O.C.G.A. § 36-33-1. Claims against cities and counties not No public entity or public employee City and County subject to governed by Hawaii shall be liable for injury or damage the state's tort laws in the State Tort Liability Act. sustained when using a public same manner as any other Local municipalities Notice of Claim within two (2) skateboard park, unless injury or HAWAII private tortfeasor. None years. Haw. Stat. § 46-72. damage caused by a condition have no sovereign Kaczmarczyk v. City and resulting from failure to maintain or immunity to waive. County of Honolulu, 656 repair the skateboard park. Haw. Kahale v. City and P.2d 89 (Haw. 1982). County of Honolulu, 90 Stat. § 46-72.5. P.3d 233 (Haw. 2004).

WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 15 Last Updated 5/20/21 CLAIMS/ACTIONS STATE LEGAL AUTHORITY NOTICE DEADLINES COMMENTS/EXCEPTIONS DAMAGE CAPS ALLOWED A governmental entity will “Political subdivision” not be held liable for the Idaho’s “political subdivisions” and Idaho Tort Claims Act. liable for damages from a negligence of their their employees while acting within single occurrence Every “governmental employees while driving a the scope of their employment and Notice of Claim against “political exceeding $500,000. This entity” (including motor vehicle as long as without malice shall not be liable for: subdivision” must be filed with limit doesn’t apply if “political subdivisions” the employee was driving (1) An act or omission in the the clerk or secretary within 180 political subdivision has such as counties, cities, while in the scope of their execution of a statute or a days and action must commence purchased liability municipal corporations, employment and no discretionary duty; within two (2) years. Idaho Code insurance in excess or if school districts, etc.) is exceptions apply. Teurlings (2) Any claim arising out of assault, IDAHO §§ 6-909 and 6-911. the action is caused by liable for its employees’ v. Larson, 156 Idaho 65, battery, misrepresentation, false willful or reckless negligent acts within For county, suit must be filed 320 P.3d 1224 (2014). imprisonment; and the scope of within six (6) months after first conduct. Idaho Code § 6- “Governmental entity” (3) Arises out of the collection of any employment to the rejection of claim. Idaho Code §§ 926. means and includes the tax or fee. same extent a private 5-221. No punitive damages state and political See Idaho Code § 6-904; § 6-904 (a); person would be. Idaho against “political subdivisions as herein and § 6-904 (b) for other specific Code § 6-903 (1976). subdivision.” Idaho Code defined. Idaho Code § 6- exceptions. § 6-918. 903(2).

WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 16 Last Updated 5/20/21 CLAIMS/ACTIONS STATE LEGAL AUTHORITY NOTICE DEADLINES COMMENTS/EXCEPTIONS DAMAGE CAPS ALLOWED Local Governmental and Governmental Employees Tort Immunity Act. Local government liable if there is a duty, except for: Discretionary Act Immunity. Lists exceptions to • Adopt or fail to adopt Discretionary Act. Municipality liability of local or enforce law. § 2-103. immune from liability for governments and their • discretionary acts. They involve employees, including Administration of personal deliberation and judgment. legislative or licenses. § 2-104. discretionary functions. • Negligent inspection of Ministerial Act. Municipality not 745 I.L.C.S. § 10/2-101, property. § 2-105. immune for acts which a person et seq. • Unsafe conditions of performs on a given state of facts in property with notice. § a prescribed manner, in obedience The Act does not 3-106. to legal authority and without impose duties but, • Failure to supervise reference to discretion of the instead, only confers activity on public propriety of the act. immunities and property. § 3-108. defenses. Kirschbaum v. Suit against local entity and/or Burden on government to prove. • Hazardous recreation Village of Homer Glen, public employee must be filed Case by case basis. Strictly construed activity. § 3-109. 848 N.E.2d 1052 (Ill. within one (1) year of date cause against government. §§ 2-109 and 2- No punitive damages • App. 2006). of action accrued. 745 I.L.C.S. § Absolute immunity for 201; Gutstein v. City of Evanston, 929 (unless employee sued in 10/8-101(a). discretionary acts as N.E.2d 680 (Ill. App. 2010). personal capacity). 745 Public Duty Rule opposed to ministerial Suit against local entity for Two-prong test: I.L.C.S. § 10/2-102. ILLINOIS Abolished acts. § 2-201. patient care must be brought Purchase of liability Illinois municipalities • Ministerial act is merely (1) Employee’s Position: Must within two (2) years after date on insurance does not waive used to be able to claim execution of set task, determine policy and exercise which claimant knew or should immunity. 745 I.L.C.S. § this defense, which which law imposes. discretion. have known of injury, but in no 10/9-103(c). states that is no Nothing remains for (2) Employee’s Act: Does claim event longer than four (4) years. common law duty to judgment or discretion. involve “discretionary policy 745 I.L.C.S. § 10/8-101(b). the general public for a Must point to determination”? municipality’s failure to act/omission. Collins v. Bartlett Park Dist., 997 enforce an ordinance or Duty to maintain property N.E.2d 821 (Ill. App. 2013). building code. (stop signs) in safe No duty to install traffic signs or However, the Illinois condition. Bubb v. streetlights. Once decided, however, Supreme Court Springfield Sch. Dist. 186, liable if not maintained. Parsons v. abolished the Public 657 N.E.2d 887 (Ill. App. Carbondale , 577 N.E.2d Duty Rule in 2016 in 1995). Must be actual or 779 (Ill. App. 1991). Coleman v. E. Joliet Fire constructive notice of Operation of a sewage system is Prot. Dist., 46 N.E.3d dangerous condition in subject to statutory and regulatory 741 (Ill. 2016). This is sufficient time to remedy. guidelines and is ministerial. Trtanj v. retrospective, so Mostafa v. City of Hickory City of Granite City, 884 N.E.2d 741, parties can look back to WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. PageHills , 17 677 N.E.2d 1312 (Ill. 750 (Ill. App. Ct. 2008) . Last Updated 5/20/21 claims that were not App. 1997). recoverable in 2016 due to this Public Duty CLAIMS/ACTIONS STATE LEGAL AUTHORITY NOTICE DEADLINES COMMENTS/EXCEPTIONS DAMAGE CAPS ALLOWED There are several exceptions to Indiana Tort Claims waiver of immunity including: Act. (1) discretionary functions (involve “Governmental entity” The defense of sovereign discretion to determine whether or under ITCA includes immunity is not available not to perform act, and if so, in what “political subdivisions” to a political subdivision particular way); which in turn includes for the negligent operation (2) the adoption and enforcement of county, township, city, No punitive damages of its vehicles. State v. or failure to adopt and enforce a law; town, etc. I.C. § 34-6-2- against the State. I.C. § Notice of a claim against a Turner, 286 N.E.2d and 110; I.C. § 34-6-2-49. 34-13-3-4. political subdivision must be filed 697(1972); 3A Ind. Law (3) the act or omission of anyone Political subdivision with: Encyc. Automobiles and other than the governmental entity Indiana shall not be liable liable for tortious (1) Governing body of that Motor Vehicles § 123. or their employee. for more than $300,000 conduct or conduct of to a single claimant (if political subdivision; or “Public duty doctrine” See I.C. § 34-13-3-3 for more their employees acting before 1/1/06) or INDIANA (2) Indiana political subdivision means no liability on fire exceptions. within the scope of $500,000 (if after 1/1/06 risk mgmt. commission created department if duty to employment, unless Early approach was to distinguish and before 1/1/08) or under § 27-1-29. plaintiff is not different the conduct is within an actions as either ministerial or $700,000 (if after 1/1/08) from duty to other citizens immunity granted by Must file within 180 days after discretionary, the former not and for a single and its efforts are made in statute. I.C. § 34-13-3-3 the loss occurs. I.C. § 34-13-3- immune. occurrence, liability shall response to general duty (1973). 8(a). Today, “planning/operational test” is not exceed $5,000,000. to protect safety and used. Immunity only if function “can I.C. § 34-13-3-4. Water utility is not welfare of public. City of be properly characterized as policy “political subdivision” Hammond v. Cataldi, 449 decisions that have resulted from a for immunity purposes. N.E.2d 1184 (Ind. App. conscious balancing of risks and Harrison v. Veolia 1983). Water Indianapolis, benefits and/or weighing of LLC, 929 N.E.2d 247 priorities.” Peavler v. Bd. of Comm’rs (Ind. App. 2010). of Monroe Cty., 528 N.E.2d 40 (Ind. 1988).

WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 18 Last Updated 5/20/21 CLAIMS/ACTIONS STATE LEGAL AUTHORITY NOTICE DEADLINES COMMENTS/EXCEPTIONS DAMAGE CAPS ALLOWED Exceptions to liability: • Claim covered by work comp; • Police acting with care; • Failure to discover latent defect; • Negligent design of public improvement; • Negligent design of recreational Presumption of Liability. facility; and Tort Liability of • “Discretionary” function: 2-step Graber v. City of Ankney, Governmental 656 N.W.2d 157 (2003). test used rather than planning/ Subdivisions. operational test. Governmental subdivision I.C.A. § 670.1. (1) Whether the action involved a must defend its employees An action must be brought within matter of choice by employee; No Punitive Damages Municipality liable for and indemnify them. I.C.A. IOWA two (2) years of the damage or I.C.A. § 670.4. torts in course and § 670.8. and scope whether action injury. I.C.A. § 670.5. (2) Judgment call is kind the No Damage Caps governmental or General rule in examining discretionary function was proprietary, except as municipal immunity is designed to shield. set forth in I.C.A. § liability; immunity is the I.C.A. § 670.14. exception. I.C.A. §§ 670.2, 670.4. Distinction is between judgment that 670.4, Subd. 3. embodies a professional assessment undertaken pursuant to a policy of settled priorities and a fully discretionary judgment that balances incommensurable values in order to establish those priorities. Graber v. City of Ankeny, 656 N.W.2d 157 (Iowa 2003).

WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 19 Last Updated 5/20/21 CLAIMS/ACTIONS STATE LEGAL AUTHORITY NOTICE DEADLINES COMMENTS/EXCEPTIONS DAMAGE CAPS ALLOWED

Kansas Tort Claims Act. No liability for: (1) legislative functions; Municipal liability shall K.S.A. §§ 75-6101 - 75- Notice of Claim must be filed with (2) judicial functions; not exceed $500,000 for 6120 (1979). the clerk or governing body. Suit Governmental entities (3) failure to enforce a law; claims arising out of a Governmental entity can be filed after denial or 120 shall be liable for damages (4) failure to exercise or perform a single occurrence or liable for negligence days. Plaintiff has 90 days after caused by a negligent act discretionary function or duty on the accident. unless exception in Act. denied even if Statute of or omission of any of its employees while acting part of a governmental entity or A governmental entity or KANSAS Liability is the rule, Limitations runs. K.S.A. § 12- within the scope of employee. See K.S.A. § 75-6104 for its employees acting immunity the 105b(d). employment under circum- more exceptions. within the scope of exception. “Substantial compliance” with stances where a private “Discretionary function” means more employment shall not be essential elements is okay. Sleeth “Governmental entity” person, would be liable. than use of judgment. Must involve liable for punitive v. Sedan City Hospital, 317 P.3d includes state or K.S.A. § 75-6103. element of policy formation. Clark v. damages. K.S.A. § 75- 782 (Kan. 2014). municipality. Thomas, 505 F. Supp.2d 884 (D. Kan. 6105. K.S.A. § 75-6102(c). 2007). Municipalities remain $200,000 Per Person liable for acts of $350,000 Per Occurrence employees carrying out Claims Against Local No liability for: K.R.S. § 44-070. “ministerial” duties. Governments. Notice of a claim against city for (1) Claim covered by work comp; After a final judgment This includes negligent Local governments defect in the condition of any (2) Collection of taxes; local government may be maintenance of liable for negligence bridge, street, sidewalk, alley, or (3) Judicial or legislative act; and allowed to pay judgment thoroughfares and unless there is other public thorough fare must (4) “Discretionary” act. in periodic payments if designing and building exception in Act. K.R.S. be provided to mayor, city clerk, K.R.S. § 65.2003. the judgment was not KENTUCKY storm drainage systems. §§ 65.2001 to 65.2006 or clerk of the board of aldermen totally covered by K.R.S. § 65.2003; Com., The process of deciding to build a (1988). within ninety (90) days of insurance and funds Trans. Cabinet, Dept. of sewer system is a discretionary occurrence. K.R.S. § 44.110. available are not “Local government” Highways v. Nash, 2006 function, while the actual building of sufficient to cover the includes city, county, General Statutes of Limitations WL 2382730 (Ky. App. the system is ministerial. City of judgment. K.R.S. § special district, etc. apply. 2006). Frankfort v. Byrns, 817 S.W.2d 462 K.R.S. § 65.2002. 65.2004. Municipality must defend (Ky. App. 1991). and indemnity employees. K.R.S. § 65.2005.

WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 20 Last Updated 5/20/21 CLAIMS/ACTIONS STATE LEGAL AUTHORITY NOTICE DEADLINES COMMENTS/EXCEPTIONS DAMAGE CAPS ALLOWED Political subdivision will be liable for proprietary functions such as the negligent operation of a motor vehicle by an employee or officer done Louisiana within the scope of their Governmental Claims employment. Fullilove v. Act. U.S. Cas. Co. of N.Y., 129 So.2d 816 (La. App. 1961); No liability (qualified immunity) for Non-economic damages La. R.S. §§ 13:5101- Suit must be brought in Louisiana La. Civ. Code. Art. 2317. policymaking or discretionary acts cap of $500,000 per 5113 (1975). State Court. La. R.S. § 13:5106. City liable if it fails to repair when such acts are within the scope person for personal injury The State, a State The notice deadline for a suit a dangerous sidewalk of their lawful powers and duties or wrongful death. Does agency, or a political against the State is the equal to condition in reasonable except for acts not reasonably not include property subdivision shall not be the normal statute of limitations time after notice of related to governmental objectives damages, medical immune from suit and for that type of claim. La. R.S. § condition. Haindel v. and acts which constitute criminal, expenses. La. R.S. § LOUISIANA liability for injury to 13:5108. Sewerage & Water Board, fraudulent, or intentional 13:5106(B). person or property. La. Service must be requested within 115 So.2d 871 (La. App. misconduct. La. R.S. § 9:2798.1. Money for medical care Const. Art. XII, § 10. ninety (90) days. La. R.S. § 1959). No liability for damage caused by post-judgment placed in a Louisiana 13:5107(D). Street/sidewalk condition of buildings or things reversionary trust which Governmental Claims One (1) year statute of maintenance is a unless the political subdivision had goes back to the political Act applies to political limitations. La. R.S. § 13:5108. governmental function and actual or constructive notice of subdivision if not used. subdivisions (parishes, liability is the exception. defect. La. R.S. § 9:2800. La. R.S. § 13:5106(B)(3). municipalities, special City must keep streets and districts, sheriffs, etc.). sidewalks safe. To be La. R.S. § 13:5102.B. liable, defect must be dangerous or calculated to cause injury and danger must be anticipated from defect. Carlisle v. Par. of E. Baton Rouge, 114 So.2d 62 (La. App. 1959).

WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 21 Last Updated 5/20/21 CLAIMS/ACTIONS STATE LEGAL AUTHORITY NOTICE DEADLINES COMMENTS/EXCEPTIONS DAMAGE CAPS ALLOWED There are four exceptions Maine Tort Claims Act. to governmental immunity. A governmental entity is A governmental entity is not liable M.R.S.A. Tit. 14, §§ for any claim which results from: $400,000 per single liable for its negligent acts occurrence. M.R.S.A. Tit. 8101 – 8118 (1977). (1) legislative acts; or omissions with regard 14, § 8105. Except as otherwise to: (2) judicial acts; and Except as otherwise provided in the (1) ownership, (3) discretionary acts (except if the act provided, personal statutes, all maintenance or use of involves operating a motor vehicle). liability of a governmental governmental entities motor vehicle, aircraft, or See M.R.S.A. Tit. 14, § 8104-B for employee shall be subject are immune from suit Every claim against a similar equipment; more exceptions. to a limit of $10,000 for on any and all tort governmental entity or its (2) construction, cleaning Four-part test for discretionary act: any such claims arising claims seeking recovery employees is forever barred or repair of any highway, (1) Does it involve policy? out of a single of damages. If unless an action therein is begun sidewalk, parking area, (2) Is it essential to the realization occurrence. M.R.S.A. Tit. immunity is removed within two (2) years after the bridge, including street MAINE by the Tort Claims Act, that policy? 14, § 8104-D. cause of action accrues. M.R.S.A. signs, traffic lights, (3) Does act require basic policy a claim for damages Tit. 14, § 8110. guardrails; No judgment against must be brought evaluation, judgment, and expertise? governmental entity shall Written notice shall be filed (3) discharge of pollutants; subject to the (4) Does municipality possess the include punitive damages. within 180 days after any claim or and limitations contained in lawful authority and duty to do or M.R.S.A. Tit. 14, § 8105. cause. M.R.S.A. Tit. 14, § 8107. (4) Public buildings/land: make the decision? Darling v. the Act. M.R.S.A. Tit. If governmental entity construction, Augusta Mental Health Inst., 535 14, § 8103. immune but covered by maintenance, ownership A.2d 421 (Me. 1987). “Governmental entity” or use of unimproved land, insurance, it is liable Governmental entity not liable for political subdivisions. historic sites, or land, (immunity waived) up to any defect, lack of repair or lack of “Political subdivision” buildings, structures or the limits of the insurance sufficient railing in any highway, includes any city, town, facilities designed for use coverage. M.R.S.A. Tit. 14, town way, sidewalk, parking area, or county. M.R.S.A. Tit. by public in connection § 8116. etc. M.R.S.A. Tit. 14, § 8104-A(4). 14, § 8102(2)(3). with outdoor recreation. M.R.S.A. Tit. 14, § 8104-A.

WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 22 Last Updated 5/20/21 CLAIMS/ACTIONS STATE LEGAL AUTHORITY NOTICE DEADLINES COMMENTS/EXCEPTIONS DAMAGE CAPS ALLOWED Employee must be sued directly, not the governmental entity. Holloway-Johnson v. Beall, Local Government Tort 103 A.3d 720 (Md. 2014), Claims Act. A claimant may not institute an No immunity if act is: aff’d in part, rev’d in part, action against the State unless (1) Discretionary function; and $400,000 Per Person Md. Code Ann., Cts. & 130 A.3d 406 (Md. 2016). Jud. Proc. § 5-301, et the claimant submits written (2) Without malice. $800,000 Per Occurrence. Local government seq. notice of claim within one (1) (Excluding Interest) year. responsible for any Md. Code § 5-507; Thacker v. City of Local government not Hyattsville, 762 A.2d 172 (Md. Ct. Md. Code § 5-303. MARYLAND Notice given to the corporate judgment against immune to tort claims, employee. If motor App. 2000), cert. denied, 768 A.2d 55 The State and its officers unless exception set authorities of the local (2001). government. vehicle, defense only for and units are not liable forth in statute damages in excess of Employee may not sue fellow for punitive damages. (“indirect statutory “Actual notice” may be sufficient. insurance policy limits. Md. employee if covered under workers’ Md. Code § 5-303. qualified immunity”). Md. Code State Gov’t § 5-304. Code § 5-303(b); § 5- compensation. Md. Code § 5-302(c). Md. Code § 5-303. 307(b). Liable for negligence in operation of motor vehicle. Md. Code § 5-507(a)(2).

WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 23 Last Updated 5/20/21 CLAIMS/ACTIONS STATE LEGAL AUTHORITY NOTICE DEADLINES COMMENTS/EXCEPTIONS DAMAGE CAPS ALLOWED Public premises owner owes duty of reasonable care to all persons lawfully on premises. Doherty v. Belmont, 485 N.E.2d 183 Public employer not liable for any Massachusetts Tort Claim must be presented in (Mass. 1985). claim based upon an act or omission Claims Act. writing to executive officer of the Public Duty Rule: The as follows: Liability of public M.G.L.A. Ch. 258, § 2 to public employer within two (2) public duty doctrine is (1) in the execution of a statute; or employer may not exceed § 14 (1978). years after the date upon which considered when an (2) discretionary acts; or $100,000 for each Public employers the cause of action arose and individual alleges that law (3) arising out of an intentional tort, plaintiff. denied. Failure to act in six (6) (county, city, town, enforcement personnel or assault, libel, slander, or Public employer not liable months is deemed denial. etc.) are liable for injury other government misrepresentation; or to levy or execution or for to property or personal Exceptions: employees are liable for (4) negligent inspection of property. interest prior to judgment MASSACHUSETTS injury caused by (1) Plaintiff led to believe that injuries due to a breach of See other exceptions at M.G.L.A. 258 or for punitive damages. a legal duty. Unless the negligence of public presentment not an issue; § 10. Claims against the employee created or employee in course and (2) Actual notice. Discretionary function two-step test: Massachusetts Bay scope, in the same enhanced a risk or had a M.G.L.A. Ch. 258 § 4. (1) Is there discretion as to what Transportation Authority manner and to the special relationship with No civil action can be brought course of conduct to follow? are not subject to the same extent as a the plaintiff, there is no more than three (3) years after (2) Is it the type of discretion for $100,000 limit. private individual (tort recovery because the duty accrual. which the Act provides immunity? and contract). M.G.L.A. owed by the government M.G.L.A. Ch. 258, § 2. Ch. 258 § 2. M.G.L.A. 258 § 4. to its citizens is to the Fortenbacher v. Com., 888 N.E.2d public generally and not to 377 (Mass. 2008). citizens individually. Judson v. Essex Agricultural and Technical Institute, 635 N.E.2d 1172 (Mass. 1994).

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Governmental Tort Governmental agency is Liability Act. immune from tort liability if engaged in the exercise M.C.L.A. §§ 691.1401 or discharge of a through 1419 (1986). Specific exceptions to immunity: governmental function. A (1) maintenance of public highways Governmental agency State employee will be (knew or should have known of (including political Notice of claim must be filed immune from tort liability defect), M.C.L.A. § 691.1402; subdivisions) is immune within 120 days and served on if: (2) negligent operation of a if engaged in a the municipal employee (1) acting or reasonably government-owned motor vehicle,* governmental function appointed to accept service of believes they are acting M.C.L.A. § 691.1405; (activity expressly or complaints, (extended up to 180 within the scope of (3) public building defects, M.C.L.A. § impliedly mandated or days if disability). Substantial employment; 691.1406; None authorized by compliance is okay. (2) the governmental (4) performance of proprietary constitution, statute, Punitive damages are M.C.L.A. § 600.1404. agency is engaged in the functions by government entities, local charter or generally not recoverable All claims must be filed with the exercise of a governmental M.C.L.A. § 691.1413; MICHIGAN ordinance, or other unless authorized by Clerk of the Court of Claims function; or (5) medical care or treatment statute. Casey v. Auto law). (3) does not involve gross within one year after such claim provided to a patient, M.C.L.A. § Owners Ins. Co., 729 M.C.L.A. §§ has accrued. negligence or an 691.1407(4); and N.W.2d 277 (2006). 691.1407(1). intentional act. M.C.L.A. § 600.6431. (6) sewage disposal system events, Governmental M.C.L.A. § 691.1407. Court of Claims has exclusive M.C.L.A. § 691.1417. immunity is to be jurisdiction over claims made Immunity does not apply *Municipal employee’s personal broadly construed, against the State. when engaged in a liability when driving his own vehicle unless a narrowly M.C.L.A. § 600.6419. proprietary function (any or the municipality’s vehicle is drawn exception activity which is conducted restricted to actions found to be applies in a claim. primarily for the purpose “grossly negligent.” Alex v. Wildfong, Nawrocki v Macomb of producing a pecuniary 594 N.W.2d 469 (Mich. 1999). County Road Comm., profit for the 615 N.W.2d 702 (Mich. governmental agency). 2000). M.C.L.A. § 691.1413.

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Tort Liability, Political $500,000 Per Person; Subdivisions. Exceptions to liability: $1,500,000 Per Liable for negligent design, M.S.A. §§ 466.01, et (1) Accumulation ice and snow; Occurrence after July 1, maintenance or operation seq. unless public building; 2009). of sewer system if no (2) Discretionary acts (arises out of a Municipality liable for evidence that City If claim arises out of the Notice of Claim must be given planning-level/policy-making torts of their balanced the costs and release of a hazardous MINNESOTA within 180 days of loss. M.S.A. § decision); employees acting benefits of upgrading substance, then 2x the 466.05. (3) Parks and recreation areas; within scope of system. Nordlie v. City of applicable limits apply. (4) Beach of pool equipment; and employment, Maple Lake, 2006 WL No punitive damages. If (5) Any loss other than property regardless whether the 923649 (Minn. App. 2006) liability insurance, limits damage or personal injury/death. action is governmental (unpublished). of insurance are the or proprietary. M.S.A. § M.S.A. § 466.03. maximum. M.S.A. § 466.02. 466.04. Governmental entity and its employees preserve their immunity for claims caused by: The immunity of (1) a legislative or judicial action or governmental entity from inaction; The State’s liability shall Notice of claim must be filed with claims arising out of Mississippi Tort Claims (2) an act or omission of a State not exceed $500,000 for chief executive officer of the ministerial acts is waived. Act. employee exercising due care in the all claims arising out of a governmental entity at least M.C.A. § 11-46-5. execution of a statute or rule; M.C.A. §§ 11-46-1 ninety (90) days before instituting single occurrence. The “Ministerial act” is one (3) police/fire protection (unless through 11-46-23 suit. M.C.A. § 11-46-11(1). State will not pay punitive (1984). which has been imposed reckless); and damages. M.C.A. § 11-46- Suit must be commenced within by law and is required at a MISSISSIPPI (4) discretionary function (official 15. “Governmental entity” one (1) year after the date of the time and in a manner or required to use judgment or The limits of insurance includes state and its tort. M.C.A. § 11-46-11(3). upon conditions which are discretion). purchased by the entity political subdivisions specifically designated, the Bodily injury and property claims See M.C.A. § 11-46-9 for other may be higher than those (county, municipality, duty to perform under the must be brought within three (3) exceptions. provided for in the , etc.). conditions specified not years after injury discovered. statute. M.C.A. § 11-46- M.C.A. § 11-46-1(g)(i). being dependent upon Immunity will not be granted to a M.C.A. § 11-15-49. 16. judgment or discretion. State employee when they M.C.A. § 11-46-9(1)(d). negligently operate a motor vehicle outside of a discretionary function. Mixon v. Mississippi Dep’t of Transp., 183 So.3d 90 (Miss. Ct. App. 2015).

WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 26 Last Updated 5/20/21 CLAIMS/ACTIONS STATE LEGAL AUTHORITY NOTICE DEADLINES COMMENTS/EXCEPTIONS DAMAGE CAPS ALLOWED The immunity of public Missouri Tort Claims entity is waived in these Act. instances: Immunity is waived up to the extent Claims shall not exceed Mo. Stat. §§ 537.600 - (1) injuries resulting from of the coverage provided in the $2,000,000 for claims 537.650 (1978). State employee’s negligent policy or self-insurance plan. arising out of a single Tort immunity not act or omission while occurrence and shall not waived. Modified form operating a motor vehicle Mo. Stat. §§ 537.610 (political exceed $300,000 for any of sovereign immunity. Claims against public entity must within the scope of subdivisions) and 71.185 one person in a single be brought to the Commissioner employment; (municipalities). Public “entity” includes accident or occurrence. MISSOURI local government and of Administration, for approval, (2) injuries caused by the No immunity for proprietary Public entity will not pay its employees. within two (2) years after such dangerous condition of a functions (for benefit or profit of claim accrues. Mo. Stat. § 33.120. punitive damages. Mo. Stat. § 537.602(2). State-owned property; and municipality). Immunity only for governmental functions (for Mo. Stat. § 537.610. Mo. Stat. § 537.600. (these Three immunities: common good). are absolute waivers). Political subdivision may (1) Sovereign immunity Construction and maintenance of purchase liability (3) Contract claims. (2) Official Immunity sewers is a proprietary function. insurance. (3) Public Duty Kunzie v. City of Olivette, Doctrine. 184 S.W.3d 570 (Mo. 2006). $750,000 Per Claim $1.5 Million Per Political subdivision is Occurrence subject to liability for its Montana Tort Claims Mont. Stat. § 2-9-108. Claim must first be presented in torts and those of its Act. Political subdivision shall not be The State and other writing to the clerk or secretary. employees acting within liable for certain legislative, judicial, governmental entities are Mont. Stat. §§ 2-9-101 The Department must grant or the scope of employment and gubernatorial actions. immune from exemplary through 2-9-114 (1973). deny the claim within 120 days. or duties whether arising MONTANA out of a governmental or Mont. Stat. §§ 2-9-111 through 2-9- and punitive damages. “Political subdivision” Upon receipt of the claim, the proprietary function. 113. Mont. Stat. § 2-9-105. includes counties, statute of limitations is tolled for Mont. Stat. § 2-9-102. Insurer may agree by cities, municipalities, 120 days. See Mont. Stat. § 2-9-108 for other school districts, etc. No immunity for operating exceptions. written endorsement to Mont. Stat. § 2-9-301. Mont. Stat. § 2-9-101. motor vehicle, aircraft, or provide coverage to the other transportation. governmental agency in Mont. Stat. § 2-9-111. amounts in excess of the statutory amount. Mont. Stat. § 2-9-108.

WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 27 Last Updated 5/20/21 CLAIMS/ACTIONS STATE LEGAL AUTHORITY NOTICE DEADLINES COMMENTS/EXCEPTIONS DAMAGE CAPS ALLOWED Notice of claim must be filed within one (1) year of accrual. Exceptions to liability: Suit must be filed within two (2) (1) discretionary function (official years. Neb. Rev. Stat. § 13-919. required to use judgment or Must be filed with the clerk, discretion); secretary, or other official whose (2) failure to inspect or negligent duty it is to maintain the official inspection of property unless Political Subdivisions records of the political reasonable notice; Tort Claims Act subdivision, or the governing Political subdivisions liable (3) claim by employee covered by (PSTCA). body of a political subdivision in same manner as private workers’ compensation; may provide that such claims may individual (ministerial act – (4) malfunction or destruction of Neb. Rev. Stat. §§ 13- be filed with the duly constituted duty imposed by law). Neb. traffic sign unless not corrected 901 to 928 (1969). law department of such Rev. Stat. § 13-908. within reasonable time after notice; Applies to counties, subdivision. Neb. Rev. Stat. § 13- Liable for operation of (5) snow or ice conditions caused by cities, municipalities, 905. motor vehicle. Neb. Rev. nature on highway; school districts, etc. $1 Million Per Person Woodard v. City of Lincoln, 588 Stat. § 13-910. (6) highway repair unless notice; NEBRASKA Limited waiver of $5 Million Per Occurrence N.W.2d 831, 838 (Neb. 1999). Liable for sewer backup if and governmental (7) recreational activities unless Neb. Rev. Stat. § 13-926. Time to file suit extended six (6) city fails to take reasonable immunity. gross negligence. months from date of mailing of action to prevent backup. PSTCA read in harmony claim determination or Desel v. City of Wood River, Neb. Rev. Stat. § 13-910. with the State Tort withdrawal of claim if Statute of 614 N.W.2d 313 (Neb. Substantial compliance when notice Claims Act. Kimminau v. Limitations would expire. 2000); Henderson v. City of supplies the requisite and sufficient City of Hastings, 864 If no disposition of claim within Columbus, 811 N.W.2d notice. Chicago Lumber Co. v. School N.W.2d 399 (Neb. six (6) months, claim can be 699, 712 (Neb. App. 2012). Dist. No. 71, 417 N.W.2d 757 (Neb. 2015). withdrawn, and suit filed. Neb. 1988). In order to substantially Rev. Stat. § 13-919. comply with the requirements of City can be estopped from § 13–919(1), notice must still be claiming it received inadequate filed with an individual or office notice from subrogated carrier. designated in the statute. Willis v. Great N. Ins. Co. v. Transit Auth. City of Lincoln, 441 N.W.2d 846 of City of Omaha, 2021 WL (Neb. 1989). 1431862 (Neb. 2021).

WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 28 Last Updated 5/20/21 CLAIMS/ACTIONS STATE LEGAL AUTHORITY NOTICE DEADLINES COMMENTS/EXCEPTIONS DAMAGE CAPS ALLOWED State waives the immunity of political subdivisions and consents to have their No action may be brought against liability determined in the political subdivision or its accordance with the same employees which are based upon: rules of law as are applied (1) the performance of a to civil actions against Nevada Tort Claims discretionary act (involves element natural persons, except as Act. None of individual judgment or choice and otherwise provided. N.R.S. Damages against political A claim must be filed with the is based on considerations of social, N.R.S. §§ 41.031 § 41.031. subdivision may not through 41.0337 governing body of the local economic, or political policy); exceed the sum of Decision to divert storm (1965). jurisdiction within two (2) years (2) failure to inspect any building, $100,000, exclusive of NEVADA water into ditch involved after cause of action accrues. structure, vehicle, street, public interest. The political Includes “political individual judgment or Filing a claim isn’t a condition highway or other public work, to subdivision will not pay subdivisions” (counties, choice and was immune. precedent to bringing an action determine any hazards, deficiencies punitive damages. N.R.S. cities, school districts, Warner v. City of Reno, 367 against political subdivision. or other matters, whether or not § 41.035. etc.) P.3d 832 (Nev. 2010). N.R.S. § 41.036. there is a duty to inspect; and N.R.S. § 41.031. Operating motor vehicle is (3) injury sustained from a public not discretionary. Decision building or public vehicle by a person to install traffic sign is who was engaged in any criminal act. discretionary, but not duty to maintain. Nevada Power N.R.S. §§ 41.032, 41.033, 41.0334. Co. v. Clark Cty., 813 P.2d 477 (Nev. 1991).

WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 29 Last Updated 5/20/21 CLAIMS/ACTIONS STATE LEGAL AUTHORITY NOTICE DEADLINES COMMENTS/EXCEPTIONS DAMAGE CAPS ALLOWED General Grant of Immunity. Exceptions to immunity: No “governmental unit” “Governmental Unit” liable for liable except as provided in damages arising out of ownership, Chapter 507-B. N.H. Rev. occupation, maintenance or Bodily Injury Actions Stat. § 507-B:5. operation of all motor vehicles, and Against Governmental Although it doesn’t all premises.* N.H. Rev. Stat. § 507- Units. address it, “discretionary B:2. N.H. Rev. Stat. §§ 507- Notice of Claim must be filed function *No liability for snow, ice, or other within sixty (60) days of discovery immunity:(discretionary vs. B:1 to 541-B:11. weather hazards on premises $275,000 Per Person of injury. ministerial) has been Municipal and county owned, occupied, maintained, or NEW HAMPSHIRE regularly applied by courts: $925,000 Per Occurrence common law immunity Suit must be filed within three (3) operated, unless gross negligence. N.H. Rev. Stat. § 507-B:4. abolished in Merrill v. years of injury or damage. • Decision to lay out N.H. Rev. Stat. § 507-B2-b. City of Manchester, 332 N.H. Rev. Stat. § 507-B:7. roads; “Governmental unit” means any A.2d 378 (N.H. 1974) • Traffic control; and political subdivision. N.H. Rev. Stat. § (liability same as that of • Setting road 507-B:1(I). private corporation). maintenance. “Political subdivision” means any Maryea v. Velardi, 135 village district, school district, town, A.3d 121 (N.H. 2016). city, county or unincorporated place Statute doesn’t completely in the state. N.H. Rev. Stat. § 541- occupy the field of B:1(VI). municipal immunity.

WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 30 Last Updated 5/20/21 CLAIMS/ACTIONS STATE LEGAL AUTHORITY NOTICE DEADLINES COMMENTS/EXCEPTIONS DAMAGE CAPS ALLOWED Limitations on liability: New Jersey Tort Claims Public entity liable for: Act. • A discretionary function (involves • Condition of property if A claim against a “public entity” policy judgment or determining No Dollar Caps N.J.S.A. §§ 59:1-1 dangerous condition for death or for injury or damage resources or when or whether to through 59:12-3 (1972). and failure to take No subrogation allowed to person or to property shall be purchase equipment, construct or “Public entity” includes action “palpably against “a public entity or presented not later than the 90th maintain facilities, hire personnel all counties, unreasonable.” N.J.S.A. public employee.” N.J.S.A. day after accrual of the cause of or provide adequate services). municipalities, districts, § 59:2-3. § 59:9-2(e). action. N.J.S.A. § 59:2-3. and other political • Sewer back up if • Adopting or failing to adopt a law No recovery for pain and Six (6) months after notice has subdivisions. N.J.S.A. § maintenance program or by failing to enforce any law. suffering, but limitation been received, suit may be filed. 59:1-3. was palpably N.J.S.A. § 59:2-4. on recovery unless NEW JERSEY Immunity waived. A Suit must be filed within two (2) unreasonable or • Failure to make an inspection, or permanent loss of bodily “public entity” is liable years after the date of accrual. negligence in negligent inspection of any function, permanent for injury caused by an N.J.S.A § 59:8-8. performance. property. N.J.S.A. § 59:2-6. disfigurement, or act or omission of a A suit for contribution or • Ministerial or • Crime, actual fraud, actual malice, dismemberment when public employee in the indemnity against a public entity operational functions. or willful misconduct. N.J.S.A. § medical expenses are in same manner and to by a defendant is included in • Negligent operation of 59:2-10. excess of $3,600. the same extent as a these requirements. Jones v. motor vehicle. • Discretion in decision-making or Punitive damages cannot private individual Morey’s Pier, Inc., 2017 WL Gruschow v. New Jersey prioritizing needs when faced be awarded. N.J.S.A. § unless there is 3184454 (N.J. 2017). State Highway Dep’t, with budgetary issues. 59:9-2 (c) and (d). exception in Act. 152 A.2d 150 (N.J. App. See N.J.S.A. § 59:2-5 for other N.J.S.A. § 59:2-2. 1959). exceptions.

WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 31 Last Updated 5/20/21 CLAIMS/ACTIONS STATE LEGAL AUTHORITY NOTICE DEADLINES COMMENTS/EXCEPTIONS DAMAGE CAPS ALLOWED Exceptions to immunity: (1) Operation or maintenance of any Liability shall not exceed: motor vehicle, aircraft or watercraft. (1) $200,000 for damage N.M.R.A. § 41-4-5. to or destruction of real New Mexico Tort (2) Operation or maintenance of any property; Claims Act. building, public park, machinery, Written notice must be provided Immunity is not waived. (2) $300,000 for past and equipment or furnishings. N.M.R.A. § N.M.R.A. §§ 41-4-1 to local public body within ninety Tort Claims Act shields future medical expenses; 41-4-6. through 41-4-30 (1976). (90) days after the occurrence. local public bodies and (3) $400,000 for all The NMTCA applies to N.M.R.A. § 41-4-16. their employees from (3) Operating certain public utilities damages other than real NEW MEXICO all governmental liability for torts except and services such as gas, electric, property damage and Action against local public body when immunity is water, waste collection or disposal, entities and their must be brought within two (2) medical expenses; and employees, including specifically waived. heating, and ground transportation. (4) total liability for a years after occurrence. N.M.R.A. N.M.R.A. §§ 41-4-1 & 41-4- N.M.R.A. § 41-4-8. “local public bodies” § 41-4-15. single occurrence shall (city, county, etc.). 4. (4) Constructing and maintaining any not exceed $750,000. N.M.R.A. § 41-4-2A. bridge, culvert, highway, roadway, street, alley, sidewalk, or parking Local public body will not area. N.M.R.A. § 41-4-8. pay punitive damages. See N.M.R.A. §§ 41-4-4 through 41- N.M.R.A. § 41-4-19. 4-12 for other exceptions.

WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 32 Last Updated 5/20/21 CLAIMS/ACTIONS STATE LEGAL AUTHORITY NOTICE DEADLINES COMMENTS/EXCEPTIONS DAMAGE CAPS ALLOWED If the act is a discretionary (decision based on policy) there is immunity. Valdez v. City of N.Y., 960 N.E.2d 356 (N.Y. 2011). If act is proprietary (act could be undertaken by a private enterprise, such as If governmental act involved, Written Notice of Claim must be property ownership, municipality is liable only if there filed and served on the municipal operation of a motor was a special duty owed to plaintiff New York Court of government agency, by personal vehicle, or providing as opposed to mere public duty Claims Act. delivery, or registered or certified hospital services. there is (Public Duty Defense). Special duty mail within 90 days (6 months for N.Y. Ct. Cl. Act §§ 8 – 12 liability). formed in three ways: breach of contract claims) after (1929). Every county, municipality (1) Statute for class of persons; the claim arises. It must be served State waives immunity (except NYC) is liable for (2) Assumption of duty toward on a person designated by law to and consents to being the negligent operation of person (most common); and receive summonses in Supreme None. sued in the same a municipally owned (3) Assume direction and control in Court actions or an attorney No punitive damages manner as a private vehicle or other face of known safety violation. representing the public allowed. Wang v. N.Y. NEW YORK person would, so long transportation. N.Y. Gen. corporation. N.Y. Ct. Cl. Act § 10. If ministerial act, plaintiff must still State Dep’t of Health, 933 as requirements of the Mun. Law §§ 50-a, 50-b. show a special duty existed. N.Y.S.2d 503 (N.Y. Sup. Ct. Court of Claims Act are Specific requirements for filing However, emergency McLean v. City of New York, 905 2011). complied with. claim. N.Y. Ct. Cl. Act § 11. vehicle involved in N.E.2d 1167 (N.Y. App. 2009) (duty Court of Claims has exclusive “emergency operation” Parallel statute deals trumps all else). with Port Authority jurisdiction over claims against (pursuing violator of the If governmental act and special duty almost identically. N.Y. State but not city, county or law) with lights and sirens exists, no immunity if act was Unconsol. Law §§ 7101 town. on, is immune. N.Y. Veh. & ministerial. If discretionary, to 7112. Suit must be filed within one year Traf. § 1104. Authorized government must actually have and 90 days after incident. N.Y. emergency vehicles, § exercised its discretion to be Gen. Mun. Law § 50-i. 1104; Fuchs v City of New York, 2017 WL 4202315 immune. (Sup. Ct. 2017). Municipality liable for construction defects or inadequate maintenance. Briga v. Town of Binghamton, 778 N.Y.S.2d 545 (3rd Dept. 2004).

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Local government Immunity waived if liability immune from insurance purchased, up to Cities with population over 500,000 governmental acts in limits of policy. (only Charlotte) can waive immunity Per Person: No Cap scope of employment, County: N.C.G.S.A. § 153A- and become subject to the NCTCA. but not proprietary Per Occurrence: $1 435. Proprietary Function: Not acts. Data Gen. Corp. v. None Million Cities: N.C.G.S.A. § 160A- traditionally done by government; City of Durham, 545 Cities may adopt own notice NORTH 485. also performed by private sector; Punitive damages not S.E.2d 243 (N.C. App. requirements. Miller v. City of allowed unless authorized CAROLINA Risk pool considered don’t benefit public as whole, charge 2001). Charlotte, 219 S.E.2d 62 (N.C. by statute. Jackson v. insurance. fee (e.g., golf course, sewer backup Public Duty Doctrine: 1975). due to poor maintenance). Hous. Auth. of City of High When government If local government has Point, 341 S.E.2d 523 Governmental Function: Performed protecting public at immunity, but settles some (N.C. 1986) large – automatically claims but not others, may for public at large; discretionary. immune. No special be liable under 42 U.S.C. § (e.g., decision to construct sewer ) relationship. 1983 (Dobrowolska Claim).

City liable for light and $250,000 Per Person Political subdivision is power distribution but not No liability if: $1 Million Per Occurrence liable (1) under for operation and (1) Execution of statute; N.D.C.C. § 32-12.1-03. circumstances in which maintenance of city water None (2) Discretionary function (decision Liability insurance or self- the employee would be sewer system (where no Suit must be filed against political making, matter of choice or insurance pool may be NORTH DAKOTA personally liable, or (2) statutes, regulations, or subdivision within three (3) years. judgment); and obtained by political caused by some policies prescribing course subdivision to cover condition or use of real N.D.C.C. § 32-12.1-10. of action for maintenance (3) Public duty (unless special relationship). liability in excess of or personal property. and operation). Olson v. statutory limits. Statutory N.D.C.C. § 32-12.1-03. City of Garrison, 539 N.D.C.C. § 32-12.1-03(3). limits then in applicable. N.W.2d 663 (N.D. 1995). N.D.C.C. § 32-12.1-05.

WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 34 Last Updated 5/20/21 CLAIMS/ACTIONS STATE LEGAL AUTHORITY NOTICE DEADLINES COMMENTS/EXCEPTIONS DAMAGE CAPS ALLOWED Five Exceptions to Immunity: • Operating motor No subrogation claims. vehicle; Damages reduced by • Proprietary acts; other collateral source recoveries received by the • Repair of roads; Governmental Function: For claimant. Ohio Rev. Code • Defect of common good of all citizens. Police, fire, regulation and maintenance of § 2744.05(B). Political Subdivision grounds/bldg.; roads, judicial, legislative functions. No limit on economic Tort Liability Act. • Liability under § 2743.02; and Proprietary Function: Action damages (medical, lost Ohio Rev. Code §§ • Failure of county to traditionally engaged in by private wages, etc.). 2744.01 to 3744.10. None erect and maintain sector (maintenance/operation of Non-economic damages Political subdivision is Suit must be filed within two (2) guardrails under § hospital, public utility, sewer system, capped at $250,000. OHIO immune from both years of accrual. 5591.37. parking lot). Non-catastrophic medical governmental and Ohio Rev. Code § 2744.04. Ohio Rev. Code § 2744.03 No liability under five exceptions if malpractice claims: proprietary acts, unless defense exists under § 2744.02(B): exception in statute. Decision re: upgrading $350,000 Per Person Ohio Rev. Code § sewer is governmental • Discretionary act (planning); $500,000 Per Occurrence 2744.03. function. No immunity for • Not in course and scope; Catastrophic medical failure to repair sewer • malpractice claims: system, but immunity if Malicious/bad faith act. complaint requires design Ohio Rev. Code § 2744.03. $500,000 Per Person or reconstruction of sewer. $1 Million Per Occurrence Matter v. City of Athens, 21 Ohio Rev. Code § N.E.3d 595 (Ohio 2014); 2744.05. Coleman v. Portage, 975 N.E.2d 952 (Ohio 2012).

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Oklahoma Thirty-seven (37) exceptions where Governmental Tort State not liable for torts of State Property Claims: $25,000. employees acting in scope of Claims Act. Other Losses: $175,000 employment: 51 Okla. Stat. § 151 – per person. ($200,000 for 200 (1978). Notice of claim within one year State employee acting in (1) legislative functions; medical negligence). $1 scope of employment is (2) discretionary acts such as policy 51 Okla. Stat. § after loss. 51 Okla. Stat. § 156(B). million per occurrence. 51 liable for loss unless falls decisions (limited). “Planning- 152.1(A) political Notice filed CMRRR with Risk Okla. Stat. § 154(A). under exceptions (General operational” approach to subdivisions are Management Administrator of No punitive damages. Waiver of Immunity). 51 understanding the scope of this immune whether the Office of Public Affairs. 51 Several liability only. 51 Okla. Stat. § 152.1(A). exception to liability; OKLAHOMA performing Okla. Stat. § 156(C). Okla. Stat. § 154. Liable for operation of (3) natural snow or ice conditions; governmental or Suit may be filed once claim motor vehicles. However, (4) absence, condition, location or If insurance, policy terms proprietary function. denied (deemed denied if not liability limited to amount malfunction of traffic sign unless not govern rights and approved within 90 days). 51 Okla. Stat. § 152.1(B) of liability insurance corrected within reasonable time obligations of State. 51 waives immunity as Plaintiff has 180 days after 90-day purchased. 51 Okla. Stat. after notice; Okla. Stat. § 158. provided in the Act. period to file. 51 Okla. Stat. § 157. §§ 157.1-158.2. (5) subrogation claim; and No subrogation claims Same statutory (6) any loss to person covered by allowed against political provisions apply to workers’ compensation. subdivision. 51 Okla. Stat. political subdivisions as See 51 Okla. Stat. § 155 for more § 155(28). to state. exceptions. Personal Injury: $691,200 per person. $1,382,300 Exceptions to liability: per occurrence. Oregon Tort Claims Act is (1) injury covered by workers’ Tort Actions Against Action must be commenced Property damage: limited (partial) waiver of compensation; Public Bodies (a/k/a within two (2) years. O.R.S. § $113,400 per person. sovereign immunity. (2) exercise of discretionary Oregon Tort Claims 30.275(9). $566,900 per occurrence. Every public body subject function* or duty; and Act). Notice of claim to any member of O.R.S. §§ 30.271(4), to liability for its (3) act under apparent authority of O.R.S. §§ 30.260 - the governing body of the public 30.272(4), 30.273(3) OREGON employees’ and agents’ law. 30.300 (1967). body within 180 days (one (1) (through 7/1/17). torts committed within the O.R.S. § 30.265(6). “Public body” includes year for death). Claims which are subject scope of their *Discretionary function is policy- cities, municipalities, No particular form for notice. to the OTCA are not employment, including making decision (policy judgment). and other local public Actual notice may suffice. O.R.S. § subject to O.R.S. § 30.710, operation of motor Negligent implementation of policy is bodies. 30.275. setting limit of $500,000 vehicles. O.R.S. § 30.275. not immune. No immunity if duty to for non-economic act. damages in civil actions. O.R.S. § 30.269(2).

WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 36 Last Updated 5/20/21 CLAIMS/ACTIONS STATE LEGAL AUTHORITY NOTICE DEADLINES COMMENTS/EXCEPTIONS DAMAGE CAPS ALLOWED Local Agency liable when: • Operation of motor vehicle; Political Subdivision Notice of Intention to Make Claim • Care custody and Tort Claims Act. against “Local Agency” must be control of personal property; No Limit Per Person 42 Pa. C. S. §§ 8541, made within six months after • Care custody and $500,000 Per Occurrence 8542. cause of action accrued. 42 Pa. C. S. § 5522. control of real property; 42 Pa. C. S. § 8553. Immunity not waived • Dangerous conditions No notice needed where Pain and suffering only for local governmental of trees, traffic signs, “dangerous condition” of real permitted for permanent entities (local agency), lights or other traffic unless exception in estate, highways, and sidewalks. No subrogation claims against local loss of bodily function, PENNSYLVANIA controls; Potholes require actual written agencies. 42 Pa. C. S. § 8533(d). permanent disfigurement statute. 42 Pa. C. S. §§ • Dangerous conditions 8541. notice and time to fix. or permanent of facilities of steam, dismemberment where “Local Agency” means a Actual or constructive notice sewer, water, gas or medical expenses exceed government unit other okay. 42 Pa. C. S. § 5522(a)(3). electric systems; the sum of $1,500. Walsh than the No notice required for claim • Dangerous condition of v. City of Philadelphia, Commonwealth arising from the “care, custody or streets; 585 A.2d 445 (Pa. 1991). government. 42 Pa. C. control” of its real property. 42 • Dangerous conditions S. § 8501. Pa. C. S. § 8542(b)(3). of sidewalks; and • Care custody or control of animals. 42 Pa. C. S. § 8542.

WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 37 Last Updated 5/20/21 CLAIMS/ACTIONS STATE LEGAL AUTHORITY NOTICE DEADLINES COMMENTS/EXCEPTIONS DAMAGE CAPS ALLOWED There are few conditions on the Can sue for operation of State’s consent to suit. Marrapese v. motor vehicle. Catone v. State, 500 F. Supp. 1207 (D. R.I. Governmental Tort Medberry, 555 A.2d 328 1980). Liability Act. (R.I. 1989). The public duty doctrine grants Damages may not exceed $100,000. R.I.G.L. § 9-31- R.I.G.L. § 9-31-1 (1970). Three (3) year statute of Former distinction immunity to government entities between proprietary and and employees engaging in uniquely 3. State and all political limitation for any action against State. R.I.G.L. § 9-1-25. governmental functions no governmental (discretionary) Limit not applicable if subdivisions are liable longer is either controlling political subdivision was RHODE ISLAND Notice of Claim must be given functions involving policy decisions for all actions of tort in or of significant assistance engaged in a proprietary within three (3) years from the or not ordinarily performed by the same manner as a in determining liability of function or has agreed to date the cause of action accrues. private individuals. Two exceptions: private individual or municipality (except within indemnify the federal R.I.G.L. § 9-1-25. (1) Special duty (i.e., proprietary acts corporation unless public duty doctrine). government or any exception in statute. such as driving car, or removing snow O'Brien v. State, 555 A.2d from walkway); and agency. R.I.G.L. § 9-31-3. R.I.G.L. § 9-31-1. 334 (R.I. 1989), holding modified by Verity v. Danti, (2) Egregious conduct. 585 A.2d 65 (R.I. 1991). Bierman v. Shookster, 590 A.2d 402 (R.I. 1991). Non-exclusive list of 40 exceptions to the general waiver of political South Carolina Tort Notice is not prerequisite to filing subdivision sovereign immunity, Claims Act. suit. However, two (2) year including, among others: $300,000 Per Person S.C. Code Ann. § 15-78- statute of limitations; Three (3) $600,000 Per Occurrence (1) legislative, judicial actions; 10, et seq. (1986). years if Notice of Claim filed. (2) discretionary acts; No Punitive Damages Sovereign immunity Limited waiver of S.C. Code § 15-78-110. (3) natural snow or ice conditions; For claims against waived (State liable) for all sovereign immunity, Must wait 180 days after earlier (4) authorized entry on property; government doctors, SOUTH CAROLINA torts unless one of 40 subject to exceptions. of (1) date claim filed; (2) claim (5) absence or condition of traffic dentists, etc.: Political subdivision is listed exceptions to waiver denied; or (3) rejection of sign or barrier unless given $1.2 million per liable for torts to the of immunity. settlement offer. reasonable notice to repair; occurrence and aggregate same extent as private If claim procedure followed, must (6) claim against DOT allowed for limit. individual, subject to improper maintenance but not faulty be filed within one (1) year. S.C. Code § 15-78-120. limitations. S.C. Code § design; and S.C. Code § 15-78-80. 15-78-40. (7) any judicial proceeding. S.C. Code § 15-78-60.

WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 38 Last Updated 5/20/21 CLAIMS/ACTIONS STATE LEGAL AUTHORITY NOTICE DEADLINES COMMENTS/EXCEPTIONS DAMAGE CAPS ALLOWED Discretionary: Highway construction and Maintenance; Allocating plows, Remedies Against resource and equipment for snow Public Entities. Written notice of claim must be removal. S.D.C.L. §§ 21-32a-1 to Public entities liable for filed within 180 days. Ministerial: Once it is determined 21-32a-3. ministerial acts. King v. SOUTH DAKOTA Suit must be filed within one (1) that act should be performed, None Landguth, 726 N.W.2d 603 To extent of risk pool or year. subsequent performance is liability insurance (S.D. 2007). S.D.C.L. §§ 21-32a-1 ministerial. (e.g., operating motor purchased, sovereign vehicle). immunity waived. Masad v. Weber, 772 N.W.2d 144 (S.D. 2009).

Exceptions to immunity: Damages may not exceed (1) Negligent operation of local government’s Tennessee motor vehicles; Local government employees may be insurance coverage. Tenn. Governmental Tort (2) Negligent construction individually liable. If government Code § 29-20-311. Liability Act. or maintenance of streets, liable, employee is immune, unless Governmental entity alleys or sidewalks; intentional. Tenn. Code § 29-20- must purchase insurance Tenn. Code § 29-20- None 201, et seq. (1973). (3) Negligent construction 310(b)(c). with minimum limits of: Action must be brought within TENNESSEE or maintenance of public City responsible for keeping streets Personal Injury: General immunity twelve (12) months. Tenn. Code § improvements; and sidewalks in safe repair and is granted to counties, 29-20-305. $300,000 Per Person (4) Discretionary functions; liable for injuries caused by municipalities, and $600,000 Per Occurrence other local and negligence. Shepherd v. City of Property Damage: governmental agencies, (5) Failure to make or Chattanooga, 76 S.W.2d 322 (Tenn. unless waived. negligent inspection. 1934). $100,000 per act or Tenn. Code §§ 29-20-202 occurrence. to 29-20-205. Tenn. Code § 29-20-403.

WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 39 Last Updated 5/20/21 CLAIMS/ACTIONS STATE LEGAL AUTHORITY NOTICE DEADLINES COMMENTS/EXCEPTIONS DAMAGE CAPS ALLOWED Governmental unit liable for proprietary acts, Immunity for governmental including: functions (police, fire, health and • operation and sanitation). Texas Tort Claims Act maintenance of a public 36 activities listed that are (TTCA). utility; Bodily Injury/Death: Formal, written notice no later considered governmental functions: Tex. Civ. Prac. & Rem. • amusements owned $250,000 Per Person than six (6) months after day the • police and fire; Code §§ 101.001–.109 and operated by the $500,000 Occurrence incident occurs, reasonably • (1969). municipality; and health and sanitation; and describing: Damage to Property: • any activity that is • bridge/road maintenance and TTCA is a limited waiver (1) the damage or injury claimed; construction. $100,000 Occurrence of sovereign immunity abnormally dangerous (2) the time and place of the Tex. Civ. Prac. Rem. Code (qualified immunity) for or ultra-hazardous. This section doesn’t waive immunity. TEXAS incident; and § 101.023. certain torts. Tex. Civ. Prac. & Rem. Code Must look to § 101.021 to determine (3) the incident. if act is proprietary. Tex. Civ. Prac. & Can recover property “Governmental unit” § 101.021 (non-exclusive Tex. Civ. Prac. & Rem. Code Ann. Rem. Code § 101.0215(b). damage and personal includes a political list). § 101.101(a). injury for motor vehicle subdivision (city, Municipal liability exists Proprietary acts include construction “Actual notice” can substitute. exception; but only county, school district, only to extent immunity and maintenance of streets, sanitary Tex. Civ. Prac. & Rem. Code Ann. personal injury for death etc.). waived. Municipality liable or storm sewers. § 101.101(c). for: There is NO waiver of immunity for for condition or use of Tex. Civ. Prac. & Rem. real/personal property. Code §§ 101.001(3). • motor vehicle; junior college or school districts, • condition or use of except as to motor vehicles. Tex. Civ. person/real property. Prac. & Rem. Code §§ 101.023 and 100.051. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021.

WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 40 Last Updated 5/20/21 CLAIMS/ACTIONS STATE LEGAL AUTHORITY NOTICE DEADLINES COMMENTS/EXCEPTIONS DAMAGE CAPS ALLOWED No liability (exceptions to waiver) for: Immunity waived as to: (1) discretionary function (1) any act by employee in scope of Utah Governmental employment; Immunity Act (GIAU). (distinct and limited immunity for decision that (2) contractual obligations; U.C.A. §§ 63G-7-101 Written Notice of Claim must be involves policy-making (3) defective, unsafe condition of through 63G-7-904 filed within one (1) year after function); road, sidewalk, bridge, etc.; (1963). denial of claim. U.C.A. §§ 63G-7- See “Little Test” Little v. (4) defect or condition of building, Property Damage: “Governmental Entity” 401. Utah, 667 P.2d 49 (Utah structure, etc. (U.C.A. § 63G-7-301); $233,600. and and its employees Within sixty (60) days of filing 1983) (e.g., fire fighting). U.C.A. § 63G-7-604(1)(c). (5) injury or damage resulting from retain immunity for all written Notice of Claim (2) assault, false employee driving or being in control Personal Injury: “governmental government must approve or imprisonment; UTAH of a vehicle. U.C.A. § 63G-7- $583,900. functions” (defined as deny. Then suit can be brought. (3) negligent inspection; 202(3)(c)(2). “activity, undertaking, U.C.A. §§ 63G-7-401, 402, 403. (4) judicial proceedings; U.C.A. § 63G-7-604(1)(a). or operation of a (5) operation or repair of Three-part test to determine Plaintiff has one (1) year after $2 million aggregate limit governmental entity”) whether there is immunity: denial of claim or after the 60-day flood systems; and for single occurrence. no matter how labelled, (6) many others. (1) whether the activity is a unless expressly waived period ends to bring the action. U.C.A. § 63G-7-604(1)(d). Utah Code Ann. §§63-G-7-401, U.C.A. § 63G-7-201. governmental function; in Act. (2) whether governmental immunity 402, 403. Governmental entity “Governmental Entity” was waived for the particular immune from latent includes State and all its activity; and condition of road, tunnel, political subdivisions. (3) whether there is an exception to bridge, sidewalk or any that waiver. Winkler v. Lemieux, 329 public building or P.3d 849 (Utah App. 2014). structure.

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Construction and maintenance of Municipality liable for Notice of a claim against a town streets and sidewalks are Common law immunity. proprietary function, but Damages against a town for insufficiency of a bridge or governmental functions protected by Vermont Supreme not for governmental for insufficiency of bridge culvert must be within twenty doctrine of sovereign immunity, but court has held function. One of the few or culvert is $75,000 or (20) days. Vt. Stat. Ann. 19, § 987. maintenance of sewers is a municipalities liable states that retains the the limits of liability proprietary function not protected. only where act is Personal injury and property governmental-proprietary insurance, whichever is proprietary in nature claims must be filed within three Dugan v. City of Burlington, 375 A.2d VERMONT distinction. greater. Vt. Stat. Ann. 19, and not governmental. (3) years. Vt. Stat. Ann. 12, §§ 991 (Vt. 1977). Governmental Function: A § 985. Hillerby v. Town of 512(4) and 512(5). Municipal employee liable for weighing of the type of A municipality’s sovereign Colchester, 706 A.2d operation of motor vehicle because Small claims ($2,000 or less) public policy immunity to the extent of 446 (Vt. 1997); Morway of general duty to keep proper actions against the State must be considerations that would its insurance coverage. Vt. v. Trombley, 789 A.2d lookout and operate vehicle in safe filed within 18 months. Vt. Stat. warrant shielding from Stat. Ann. 29, § 1403. 965 (Vt. 2001). manner. Morway v. Trombly, 789 Ann. Tit. §32-932. liability. A.2d 965 (Vt. 2001).

Municipal corporations are immune from liability when performing Counties viewed as “political governmental functions subdivisions” of Commonwealth and but are not when entitled to same immunity. Mann v. exercising proprietary Doctrine of sovereign Arlington County Bd., 98 S.E.2d 515 immunity has not lost functions. Niese v. City of Notice of claim must be given (Va. 1957) (no governmental- No caps for local its vitality in Virginia. Alexandria, 564 S.E.2d 127 VIRGINIA within six (6) months of accrual. proprietary distinction). government. Va. St. § Va. St. § 8.01-195.3; (Va. 2002); T Jean Moreau 8.01-195.3. Messina v. Burden, 321 Va. St. § 8.01-195.3. & Assocs. v. Health Ctr. Cities receive reduced immunity. S.E.2d 657 (Va. 1984). Comm’n, 720 S.E.2d 105 May be liable if proprietary function, (Va. 2012). immune if governmental function. Hoggard v. City of Richmond, 200 Liable only for gross S.E. 610 (Va. 1939). negligence in operation of pols, parks, playgrounds. Va. St. § 15.2-1809.

WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 42 Last Updated 5/20/21 CLAIMS/ACTIONS STATE LEGAL AUTHORITY NOTICE DEADLINES COMMENTS/EXCEPTIONS DAMAGE CAPS ALLOWED Actions Against Political Subdivisions, Municipal and Quasi- Notice of claim on standard form Municipal must be presented to appointed Local governmental No liability for discretionary Corporations. agent of local government within entities liable for both functions (planning or operational governmental and R.C.W.A. §§ 4.96.010 to applicable statute of limitations. level). R.C.W.A. § 4.96.010(2). WASHINGTON proprietary acts to the None 50 (1967). R.C.W.A. § 4.96.020. same extent as if they Evangelical United Brethren Church “Local governmental Suit can be filed sixty (60) days were a person. R.C.W.A. § of Adna v. State, 407 P.2d 440 entity” means a county, after filing of Standard Notice of 4.96.010(1). (Wash. 1965). city, town, special Claim Form. district, .

The Governmental Tort Political subdivisions No limit on economic Claims and Insurance absolutely immune from damages. Reform Act. policy-making acts and 2-Step Process have qualified immunity Non-economic damages W. Va. Code § 29- 12A- (1) Court identifies whether the for discretionary acts that limited to $500,000 per 1, et seq. (applies only nature of the act policy-making acts do not violate clearly occurrence. to political subdivisions, (immune) or discretionary established rights and not the State) Two (2) years after the cause of governmental functions (Step 2). W. Va. Code §29-12A-6. action arose or after the injury, laws. Political subdivision (2) If act is discretionary, court Complaint must include a death or loss was discovered or Political subdivisions liable employee has qualified determines if plaintiff’s statutory or demand for a judgment reasonably should’ve been for certain types of claims: WEST VIRGINIA immunity. constitutional rights violated. If not, for the damages that the discovered, whichever last occurs (1) Operation of motor judge in a nonjury trial or Governmental State is immune. or within any applicable shorter vehicle; the jury in a jury trial finds immunity laws are An insurance policy may waive period of time. W. Va. Code §29- that the complainant is confusing with (2) Maintenance of public defense of immunity. W. Virginia 12A-6. entitled to be awarded patchwork of property; and Reg’l Jail & Corr. Facility Auth. v. A.B., but shall not specify in the inconsistent holdings. (3) Negligent maintenance 766 S.E.2d 751 (W. Va. 2014). demand any monetary W. Virginia Dep’t of of roads, sidewalks, For list of acts for which immune see amount for damages Health & Human Res. v. bridges, sewers and §29-12A-5. sought. W. Va. Code §29- Payne, 746 S.E.2d 554 aqueducts. 12A-6(a). (W.Va. 2013). W. Va. Code §29-12A-4(3).

WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 43 Last Updated 5/20/21 CLAIMS/ACTIONS STATE LEGAL AUTHORITY NOTICE DEADLINES COMMENTS/EXCEPTIONS DAMAGE CAPS ALLOWED Public officer or employee immune for discretionary acts. Three exceptions to general rule of immunity: Barillari v. City of Claims Against (1) Wilful and wanton activity; Government Bodies or Milwaukee, 533 N.W.2d (2) Ministerial task; and Claim against municipality Officers, Agents or 759 (Wis. 1995); Wis. Stat. for negligent use of a Employees. § 893.80 (Wisconsin’s (3) Employee aware of known and Discretionary Immunity compelling danger that creates duty municipal motor vehicle Wis. Stat. §§ 893.80 to Statute). to act. Barillari, supra. limited to $250,000. No 893.83 (1987). punitives. Wis. Stat. § Wisconsin Safe Place Ministerial task occurs when act is Local agencies and their 345.05(3). Statute (Wis. Stat. § certain, absolute, and imperative, employees are Notice of Claim served on proper 101.11). Employer must involving merely the performance of Actions involving generally immune from agency must be made within 120 provide safe workplace. a specific task which the law government vehicles liability. Wis. Stat. § days of date of occurrence. Conflict as to whether it imposes, prescribes and defines. If exempt from registration 893.80(4). under Motor Vehicle Actual notice exception. imposes a ministerial or act involves judgment or discretion, Governmental entities discretionary duty. then there is immunity because it is a Code limited to $50,000. Wis. Stat. § 893.80 are required to discretionary and not a ministerial Wis. Stat. § WISCONSIN Municipality liable for indemnify their Normal Statute of Limitations for operation of motor vehicle. act. 345.05(1)(bm). employees for suits property damage is six (6) years, Wis. Stat. § 345.05. Bauder v. Delavan-Darien Sch. Dist., Limit of $50,000 against related to acts but suit against government 558 N.W.2d 881 (Wis. App. 1996) any volunteer fire committed within the agency must be filed within three Whether Safe Place (decision of teacher to move class company, political scope of their (3) years from date notice is Statute (§ 101.11) requires employers to furnish safe indoors was discretionary). corporation, government employment. Wis. Stat. given. Wis. Stat. § 893.80. subdivision or agency. place of employment, Sewer system design and § 895.46. Therefore, it Wis. Stat. § 893.80(3). is possible for a plaintiff whether it imposes a construction is discretionary. Sewer Damages against a to indirectly recover ministerial or discretionary system maintenance is a ministerial. volunteer fire company damages from a duty on a government Menick v. City of Menasha, 547 are limited to $25,000. government entity by employer is not clear but is N.W.2d 778 (Wis. App. 1996). Wis. Stat. § filing suit directly likely discretionary. No action can be maintained for 893.80(1)(b)(3). against an officer or Spencer v. County of accumulation of snow or ice on any employee. Brown, 573 N.W.2d 222 bridge or highway unless the (Wis. App. 1997). But see accumulation existed for three Anderson v. City of weeks. Wis. Stat. § 893.83. Milwaukee, 544 N.W.2d 630 (Wis. App. 1996).

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Claims allowed for: The WGCA abolishes all judicially Personal Injury: $250,000 (1) Operating motor created categories such as per person; $500,000 per vehicle: Wyo. Stat. § 1-39- governmental or proprietary occurrence. Wyoming 105. functions and discretionary or Governmental Claims Written Notice of Claim must be Governmental entity can (2) Operating building or ministerial acts previously used by Act (WGCA). presented with two (2) years. purchase liability park: Wyo. Stat. § 1-39- the courts to determine immunity or Wyo. Stat. § 1-39-113. insurance in which case Wyo. Stat. §§ 1-39-101 106. liability. to 121 (1979). Compliance with Notice of Claim limits are extended to (3) Airport: Wyo. Stat. § 1- Exclusions from the waiver of liability requirement no longer has to be match limits of policy. Except as provided in 39-107 are listed at W.S. 1-39-120: WYOMING the WGCA, a alleged in complaint. Brown v. Wyo. Stat. § 1-39-118. (4) Operating public (1) defect in plan or design of bridge, governmental entity City of Casper, 248 P.3d 1136 Property Damage: Claim utilities (gas, electric, culvert, highway, road, street, (i.e., state or local (Wyo. 2011). must be less than $500. water, etc.) and ground sidewalk or parking lot; government body) is Suit must be filed within one (1) Wyo. Stat. § 1-39-118(f). transportation: Wyo. Stat. (2) failure to construct or reconstruct granted immunity from year of written Notice of Claim. § 1-39-108. bridge, culvert, etc.; and Health Care: Claims liability for any tort. Wyo. Stat. § 1-39-114. against providers limited (5) Operating hospital: (3) maintenance, including Wyo. Stat. § 1-39-104. to $1 million regardless of Wyo. Stat. § 1-39-109. maintenance to compensate for claims or claimants. Wyo. weather conditions, of any bridge, (6) Torts of police: Wyo. Stat. § 1-39-1109(b). Stat. § 1-39-112. culvert, etc.

These materials and other materials promulgated by Matthiesen, Wickert & Lehrer, S.C. may become outdated or superseded as time goes by. If you should have questions regarding the current applicability of any topics contained in this publication or any publications distributed by Matthiesen, Wickert & Lehrer, S.C., please contact Gary Wickert at [email protected]. This publication is intended for the clients and friends of Matthiesen, Wickert & Lehrer, S.C. This information should not be construed as legal advice concerning any factual situation and representation of insurance companies and\or individuals by Matthiesen, Wickert & Lehrer, S.C. on specific facts disclosed within the attorney\client relationship. These materials should not be used in lieu thereof in anyway.

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