Governmental Immunity

“The King can do no wrong.” Or as President Nixon put it, “when the President does it that means that it is not illegal.” (See Nixon’s Views on Presidential Power: Excerpts from a 1977 Interview with David Frost, par. 4.) The quote about the king sets forth the ancient legal principle known as “sovereign immunity.” Essentially, it means that one cannot sue the government. (See Herbert Broom, A Collection of Legal Maxims, Classified and Illustrated, number 23 (London, A. Maxwell and Son 1845)).The quote from Nixon expresses an assumption, not a rule of law, that the government acts correctly. The difference is subtle: even though the victim might be prevented from suing, it does not mean that the government is blameless. 

Into this tension come many victims of dog attacks. It is clear that animal control departments and police agencies take very few vicious dogs off our streets. When a victim is killed, disfigured or disabled by a dangerous dog, under what circumstances can the victim or his family receive appropriate compensation from the government? As it turns out, each state has its own answer to that question. Determining whether suit is possible against the government or a governmental employee is a difficult task that only an attorney should undertake. It is impossible for a layman to navigate through this issue and the red tape that it requires. However, one can perhaps understand its application to modern life by reading a court’s opinion about it. One of the best explanations of soverign immunity can be found in Tipton v. Town of Tabor (1997) 538 N.W.2d 783, 788 (S.D.1995). The decision of the Supreme Court of South Dakota is one of the best and most concise explanations of the modern rule of “the King can do no wrong.” Here is a key paragraph (par. 10) from the court’s opinion:

Essentially, the rule declares government owes a duty of protection to the public, not to particular persons or classes. Sound reasons support this doctrine. Furnishing public safety always involves allocating limited resources. Law enforcement entails more than simply reacting to violations; it encompasses the art of keeping the peace. Deploying finite resources to achieve these goals is a legislative and executive policy function. To allow individuals to influence through private litigation how resources must be disposed would render government administration chaotic and enfeebled. Unrestricted liability might discourage communities from acting at all or encourage action merely to avoid suit, without regard to the common good. The rule promotes accountability for offenders, rather than police who through mistake fail to thwart offenses. Otherwise, lawbreaker culpability becomes increasingly irrelevant with liability focused not on the true malefactors, but on local governments. A “public duty” conception acknowledges that many “enactments and regulations are intended only for the purpose of securing to individuals the enjoyment of rights and privileges to which they are entitled as members of the public, rather than for the purpose of protecting any individual from harm.” Restatement (Second) of Torts § 288 cmt. b (1965).

One of the most dangerous requirements of governmental tort claim statutes throughout the United States is the notice of claim. Any person who seeks monetary damages against a state, state subdivisions, cities or towns (essentially, any governmental entity, possibly even a human society that does animal control under contract with a governmental entity), or seeks damages against a governmental employee where permitted, must notify the potential defendant in advance. The notification must contain specific information. For example, see Procedural Issues of the Tort Claims Act, Stephen P. Pfahler and Robert J. Tyson (California law).