Governmental Immunity

Governmental Immunity in United States

Governmental Immunity Definition

Sovereign Immunity in this Legal Encyclopedia
Sovereign Immunity definition in the Law Dictionary

Governmental immunity meaning

The principle of the common law is that “the king can do no wrong” – that is that there be no remedy against the sovereign because of sovereign immunity unless the sovereign waive that immunity. This principle continues to exist in America however the government consents to be sued according to the federal tort claims act.

Local governments can be sued directly under 42 U.S.C.A. § 1983. See Monell v. Department of Social Services of N. Y., 429 U.S. 1071, 97 S.Ct. 807, 50 L.Ed.2d 789. See also: Sovereign Immunity (in the world legal encyclopedia) and the case Principe Compania Naviera, S.A. v. Board of Com’rs of Port of New Orleans, D.C.La., 333 F.Supp. 353, 355.

Governmental Immunity meaning

A principle precluding the institution of a suit against the government without its consent.

Governmental immunity exempts the government from liability for its torts. It is referred to as either governmental immunity or as soveriegn immunity. The terms are synonymous.

The principle of the common law is that “the king can do no wrong” – that is that there be no remedy against the sovereign because of sovereign immunity unless the sovereign waive that immunity.

This principle continues to exist in America however the government consents to be sued according to the federal tort claims act. According to Holmes, the “sovereign is exempt from suit [on the] practical ground that there canbe no legal right against the authority that makes the law on which the right depends.” 205 U.S. 349, 353.

“[S]tatutes waiving the sovereign immunity of the United States must be`construed strictly in favor of the sovereign.” McMahon v.United States, 342 U.S. 25, 27 (1951).

The government can waive its immunity. Local municipalities often enjoy “regulatory immunity” for those tasks which arise out of any of the municipality’s regulatory  decisions involving cable television. See, e.g. Caprotti v. Town of Woodstock,   1999 N.Y. LEXIS 3729, *; 94 N.Y.2d 73; 721 N.E.2d 957; 699 N.Y.S.2d 707

Types of Personal Immunity

Personal immunities protect government official from personal liabilities for torts committed in the scope of their office. Personal immunities are either qualified or absolute. For a good summary see Lauer v. City of New York, 2000 N.Y. LEXIS 907; 95 N.Y.2d 95; 733 N.E.2d 184; 711 N.Y.S.2d 112

Governmental Immunity from Tort Liability

Note: there is more information about the Governmental Immunity from Tort Liability here.

In Molitor v. Kaneland Community Unit District No. 302 (163 N.E.2d 89): They were unwilling to distinguish between how a school district was formed as to its immunity and called all “quasi-municipal corporations”. Quasi municipal corporations: Bodies politic and corporate, created for the sole purpose of performing one or more municipal functions. Public corporations organized for governmental purposes and having for most purposes the status and powers of municipal corporations (such as counties, townships, school districts, drainage districts, irrigation districts, etc.), but not corporations proper, such as cities and incorporated towns. (Blacks Law Dictionary 6th).

No more “highly technical distinctions” just like the court created sovereign immunity and can abolish it: “It appears that while adhering to the old immunity rule, this court has not reconsidered and re-evaluated the doctrine of immunity of school districts for over fifty years. During these years, however, this subject has received exhaustive consideration by legal writers and scholars in articles and texts, almost unanimously condemning the immunity doctrine. See, Borchard, Governmental Liability in Tort.” (Molitor v. Kaneland Community Unit Dist. No. 302 163 N.E.2d. 89 @ 90 (Ill. 1959))

“Historically we find that the doctrine of the sovereign immunity of the state, the theory that “the King can do no wrong,” was first extended to a subdivision of the state in 1788 in Russell v. Men of Devon, 2 term rep. 671, 100 Eng.Rep. 359. … the decision that the county was immune was based chiefly on the fact that there were no corporate funds in Devonshire out of which satisfaction could be obtained, plus a fear of multiplicity of suits and resulting inconvenience to the public.” (Molitor v. Kaneland Community Unit Dist. No. 302 163 N.E.2d. 89 @ 91 (Ill. 1959))

“It should be noted that the Russell case was overruled by the English courts, and that in 1890 it was definitely established that in England a school board or school district is subject to suit in tort for personal injuries on the same basis as a private individual or corporation. (Crisp v. Thomas, 63 L.T.N.S. 756 (1890).) Non immunity has continued to be the law of England to the present day. See Annotation, 160 A.L.R. 7, 84.” (Molitor v. Kaneland Community Unit Dist. No. 302 163 N.E.2d. 89 @ 91)

“Later decisions following the Kinnare doctrine have sought to advance additional explanations such as the protection of public funds and public property, and to prevent the diversion of tax moneys to the payment of damage claims.” (Molitor v. Kaneland Community Unit Dist. No. 302 163 N.E.2d. 89 @ 91)

“Rather we interpret that section as expressing dissatisfaction with the court created doctrine of governmental immunity and an attempt to cut down that immunity were insurance is involved.” (Molitor v. Kaneland Community Unit Dist. No. 302 163 N.E.2d. 89 @ 92)

“It is a basic concept underlying the whole law of torts today that liability follows negligence, and that individuals and corporations are responsible for the negligence of their employees acting in the course of their employment. The doctrine of governmental immunity runs directly counter to that basic concept. What reasons, then, are so impelling as to allow a school district, as a quasi-municipal corporation, to commit wrongdoing without any responsibility to its victims, while any individual or private corporation would be called to task in court for such tortuous conduct?” (Molitor v. Kaneland Community Unit Dist. No. 302 163 N.E.2d. 89 @ 93)

“The original basis of the immunity rule has been called a “survival of the medieval idea that the sovereign can do no wrong. (38 Am. Jur., Mun.Corp., sec 573, p. 266.)” (Molitor v. Kaneland Community Unit Dist. No. 302 163 N.E.2d. 89 @ 93)

“Likewise, we agree with the Supreme Court of Florida that in preserving the sovereign immunity theory, courts have overlooked the fact that the Revolutionary War was fought to abolish that “devine right of kings” on which the theory is based.” (36 Molitor v. Kaneland Community Unit Dist. No. 302 163 N.E.2d. 89 @ 94)

Governmental Immunity in Foreign Legal Encyclopedias

Link Description
Governmental Immunity Governmental Immunity in the World Legal Encyclopedia.
Governmental Immunity Governmental Immunity in the European Legal Encyclopedia.
Governmental Immunity Governmental Immunity in the Asian Legal Encyclopedia.
Governmental Immunity Governmental Immunity in the UK Legal Encyclopedia.
Governmental Immunity Governmental Immunity in the Australian Legal Encyclopedia.

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Governmental Immunity Background

Governmental Immunity: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Governmental Immunity. This part provides references, in relation to Governmental Immunity, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Governmental Immunity by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Governmental Immunity and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Governmental Immunity or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Governmental Immunity and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Governmental Immunity. Finding these decisions can be challenging. In many cases, researchers about Governmental Immunity should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Governmental Immunity when formerly requested by a designated government officer):

Tools and Forms

Law in Other Regions

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