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Sovereign Immunity Modified

February 1, 2024

By Thomas McCutcheon

Sovereign immunity simply means that ordinary citizens cannot sue the government except in limited circumstances. The government gets to say what those circumstances are. On one hand I am absolutely not a fan of sovereign immunity because when the government gets it wrong, they ought to be responsible for the damages that they cause. On the other hand, the money for those damages comes from our tax dollars and costs everyone.  We are a government of the people and by the people.

On May 27, 2022, the Alabama Supreme Court modified the law in Alabama regarding when you can and when you cannot sue a state employee for wrongdoing in the line of duty. Let’s recognize that the federal government has allowed a great deal of latitude for suits against the federal government, but the State of Alabama has not.

It’s surprising to see the federal government held liable for faulty background checks in school shooting cases. I argued a case before the 11th Circuit Court of Appeals over sovereign immunity where a death occurred as a result of the direct negligence of a TVA truck driver who killed a lady after the driver unhooked his airbrakes. We lost that case because of sovereign immunity and Alabama State law.

In May of this year, the Alabama Supreme Court allowed a case to proceed against a Marion County investigator who, it is alleged, absolutely changed the facts of an arson case which resulted in someone being indicted by the grand jury. What he had learned during the investigation was not what he told the district attorney and what he testified to before the grand jury. The man so accused was charged with a felony, lost his job, and was sued for $36,000. It was on the news that he had been accused of arson. The Marion County Circuit Court ruled that the investigator was an employee of the State and therefore could not be sued.

The Alabama Supreme Court ruled that the investigator’s conduct was so outside of his duties that his conduct constituted an intentional malicious act for which he could be held responsible. This overruled previous Alabama law, and the Marion County Circuit Court was directed by the Alabama Supreme Court to allow a jury to determine liability and damages.

In almost all cases an employee of the State is immune from suit. This case is a positive decision that requires more care where it is important to be careful.


I was reviewing text message evidence in a case when I ran across the letters “SMH”. I had to ask my secretaries what that meant, and they laughed and told me it meant “shaking my head”. Apparently when someone says or does something and all you can do is just shake your head, you can text “SMH” and it, apparently, is understood.

Last Friday, the Alabama Supreme Court got one so wrong all I could so was shake my head.

The Alabama Legislature during the COVID-19 crisis passed a law known as the “Alabama COVID-19 Immunity Act”. The ACIA provides, in relevant part, that “a covered entity shall not be liable for any damages, injury, or death suffered by any person or entity as a result of, or in connection with, a health emergency related to COVID that results from any act or omission of the covered entity.” This Act provides immunity for COVID related issues.

In this case, an unintended result occurred when a lady who had COVID went to a hospital in Houston County for treatment of COVID and encountered a trip hazard in a concrete walkway that was defective. The lady fell and sustained serious injuries on her way in to seek treatment for COVID.

The hospital claimed immunity under the statute. The injured person’s attorney explained to the Court that they were not injured due to COVID, they were injured due to a defect in the premises that would have injured anyone who was seeking treatment for any reason. The Supreme Court held that because they were seeking treatment for COVID and not the flu, a burn, or a broken bone but specifically COVID, the hospital was immune from suit.


Buckle up, drive safely, and as always, your referrals are appreciated!


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