When Can You Sue the Commonwealth? Kentucky's Sovereign Immunity Explained

If you've been injured due to a government employee's negligence, the Lexington KY lawyers at Embry Merritt Womack Nance are here to help you understand your rights. Section 54 of the Kentucky Constitution states that "[t]he General Assembly shall have no power to limit the amount to be recovered for injuries resulting in death, or for injuries to person or property." However, the doctrine of sovereign immunity shields Kentucky's state entities almost entirely from tort liability. So how can both of these ideas co-exist?

When someone is hurt by the careless acts of another, typically they can sue that person or company for compensation for the injuries and damages they suffered. However, when that careless party is the government, things get a little more complicated. That's where sovereign immunity comes in.

What is Sovereign Immunity?

Sovereign immunity is a legal doctrine that says a federal or state government cannot be sued without its consent. Sovereign immunity originally comes from British common law, where it was based on the concept that the King could do no wrong. The immunity derives from the structure of the United States Constitution itself, as the government entity is the enforcer of the laws. Basically, there can't be a legal right (to sue) against the authority that makes the law creating the right.

Today, the goal of sovereign immunity aims to protect governments from a complete disruption of functions or crippling damages from hefty and time-consuming lawsuits. Sovereign immunity protects government agents, officers, and employees from being sued on behalf of the government.

The immunity is available for both the federal and state governments, and these governments have the ability to choose to waive sovereign immunity, which would allow suits against them on behalf of their actors. The federal government has waived sovereign immunity for areas including torts such as personal injury or death claims, property claims, contractual claims, and civil rights claims. States have the freedom to decide and define the scope of their sovereign immunity based on their state laws.

Kentucky's Sovereign Immunity Provisions

Although the Kentucky Constitution is not the source of sovereign immunity, Section 231 implicates it by stating in full: "The General Assembly may, by law, direct in what manner and in what courts suits may be brought against the Commonwealth." This means that the Kentucky Legislature has the ability to allow or disallow certain claims against the Commonwealth of Kentucky.

Claims against the Commonwealth are typically disallowed, with the exception being for some very limited situations. The Lexington Kentucky law firms at EMWN understand these nuances well. Kentucky does not have a comparable civil rights or contract waiver for claims like the federal government does. However, there is a limited waiver of the immunity in the Kentucky Revised Statutes, Chapter 49 for negligence tort actions.

When Does Sovereign Immunity Not Apply?

Section 231 of the Kentucky Constitution explicitly allows the Kentucky Legislature to choose what suits may be brought against the Commonwealth. The Legislature has chosen to waive sovereign immunity for certain tort actions of government employees, meaning an individual can sue the state for this. The waiver of tort actions in Kentucky only extends to negligence claims, not intentional torts, meaning that plaintiffs cannot recover against the state for intentional injuries to their person or property nor for wrongful death.

This seems to conflict with Section 54 of the Kentucky Constitution which provides that the Commonwealth cannot limit a party's recovery for intentional torts. However, this has generally been interpreted to apply to suits amongst private parties, and sovereign immunity is a concept that is recognized as an inherent attribute of the state, just as it is nationally. Therefore, the doctrine of sovereign immunity supersedes Section 54 and the Commonwealth may limit the recovery for torts performed by the government or their agents.

For a broader overview of how these rules work across the country, the Nolo Legal Encyclopedia provides a helpful plain-language guide to filing injury claims against government entities in Kentucky.

Negligence Litigations

Negligence actions hold someone liable for the harm caused by their carelessness. These claims have four elements that must be proven: (1) that the individual owed a duty of care; (2) that they breached that duty; (3) that the breach caused the injury suffered; and (4) that damages were suffered. A common example of a waived negligence claim in Kentucky is a motor vehicle accident caused by the carelessness of a government employee who is driving. When someone suffers damages and harm of this type because of the careless action or lack of action by a government entity or employee, they may sue to recover. This is where experienced Lexington Kentucky law firms like EMWN can help you navigate the process.

In Kentucky, claims of negligence against the state must be filed with the Board of Claims, a part of the Office of Claims and Appeals. Claims are a formal demand for compensation or damages by an injured party and are typically resolved much quicker than a lawsuit. The Board will review claims by claimants who believe they have been damaged from the negligence of the Commonwealth and determine the compensation to award them.

There are some limitations: claims will be reduced by the amount of damages owed to the claimant by other sources, and a single award cannot exceed $250,000 for a single claim, or $400,000 for multiple claims together. While this is an avenue to receive damages, it is not the same as a lawsuit because it will not go to court or be in front of a judge or a jury. Our firm's Litigation practice has extensive experience navigating these administrative processes on behalf of clients.

The Exception: Independent Contractors

Although sovereign immunity applies to government employees, officials, and agents, the acts of independent contractors are generally excluded from this immunity. Sovereign immunity broadly protects the state and its employees from being sued.

However, when individuals are hired to do a certain task for the government in such a way that the government does not have the right of control over them, they are not an employee of the government but an independent contractor. For tort purposes, the government is not liable for their actions. In sovereign immunity terms, this means that while the Commonwealth and its employees are protected from suit, independent contractors will not be protected and may be sued for their actions.

If you've been injured by an independent contractor working for the government, EMWN's Lexington Kentucky law firms team can help determine who is liable and how to pursue compensation.

Suing Municipalities

Despite the difficulty of suing the state of Kentucky, individual cities and counties do not possess the same immunity as the state and are generally liable for ordinary torts to the same extent as private parties are. This means that unlike the state government, municipalities can be sued for the acts of their employees, beyond simply negligence.

However, Kentucky law has limited city tort liability, providing sovereign immunity for legislative and judicial functions as well as immunity for acts performed in good faith. This means that the legislative and judicial branches of city governments cannot be sued for their actions, nor can an employee whose mistake is found to be honest and fair.

Municipal claims also carry their own procedural rules and deadlines. Whether you're dealing with a county, city, or state agency, the Lexington Kentucky law firms at EMWN have the experience to pursue your claim in the appropriate forum. Our Workers' Compensation and general litigation teams regularly handle cases that involve government entities and public employers.

The Depth of Sovereign Immunity: What Should You Do?

Sovereign immunity in Kentucky is a very complicated doctrine that can be difficult to interpret and decipher. There are exceptions and waivers that are very specific to particular situations. However, it is extremely important to know when and how you can receive compensation for injuries you have suffered because of a government employee. Some of these important nuances can be easy to miss without a lawyer's help to determine how you can get relief when you have been harmed by a government entity.

The Lexington Kentucky law firms of Embry Merritt Womack Nance are here to help and can assist you with navigating your legal rights in Kentucky. Contact our Lexington office today to speak with an experienced attorney about your situation.