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Sovereign Immunity

Can government be sued?

Comment – the case of Bulman v. Hulstrand Construction (excerpts below) identifies three instances when a question about sovereign immunity may arise (but these are not the only times the question may arise) --

  • tort liability (personal injured or property damage),
  • performance of an “official duty of a discretionary nature,” and
  • “arbitrary refusal to perform a clear official duty.”

The decision abolishes sovereign immunity for tort liability; therefore, an injured person should be able to recover (i.e., be compensated) for injuries or damages caused by a state employee. An example would be the state compensating someone for injuries suffered in a vehicle accident caused by a state employee.

In the second situation, the law will not award damages that result from a state employee’s decision about an official, but discretionary, duty. In the third situation, a court will order a state employee to perform an official duty that the employee has arbitrarily refused to perform; sometimes discussed as ministerial duties. Note in the third situation, the party is not seeking damages, but instead is asking for an order directing performance of an official duty. See Tooley v. Alm, 515 N.W.2d 137 (N.D. 1994) at http://www.court.state.nd.us/_court/opinions/930358.htm .

Also see N.D.C.C. 32-12.1 at http://www.state.nd.us/lr/cencode/t32c121.pdf and 32-12.2 at http://www.state.nd.us/lr/cencode/t32c122.pdf .

Bulman v. Hulstrand Const., 521 N.W.2d 632 (N.D. 1994)


On December 20, 1991, Bulman's husband, Lloyd C. Bulman, Jr., was killed in an automobile accident at a road construction site on U.S. Highway 85 near Amidon, North Dakota. When the accident occurred, the State's general contractor, Hulstrand, had suspended work on the construction project for the winter.

Bulman sued the State and Hulstrand, claiming the State negligently failed to inspect and maintain the roadway, warn the traveling public of hazardous conditions, and supervise Hulstrand's work on the project. She alleged Hulstrand negligently failed to correct dangerous driving conditions at the construction site, provide adequate warning signs, and comply with the duties imposed by its contract with the State.

The district court granted summary judgment for the defendants, concluding that sovereign immunity barred Bulman's action against the State, and that, under its contract with the State, Hulstrand had no duty because the State, not Hulstrand, had control over the construction site during the winter suspension. Bulman appealed.

Sovereign immunity is a common-law doctrine which originated in court decisions…

Historically, the doctrine of sovereign immunity has been justified on the grounds that the King could do no wrong, the diversion of funds required for other governmental purposes could bankrupt the State and retard its growth, the State could perform its duties more efficiently and effectively if it were not faced with the threat of a floodgate of actions involving tort liability, and it was more expedient for an individual to suffer than for society to be inconvenienced [citations omitted].

Whatever justifications initially existed for sovereign immunity, they are no longer valid in today's society… Sovereign immunity from tort liability … perpetuates injustice by barring recovery for tortious conduct merely because of the status of the wrongdoer. Sovereign immunity contradicts the essence of tort law that liability follows negligence and that individuals and corporations are responsible for the negligence of their agents and employees acting in the course of their employment …

We conclude that the State's sovereign immunity for tort liability is outdated and is no longer warranted…

Although we abolish the State's sovereign immunity from tort liability, our decision should not be interpreted as imposing tort liability on the State for the exercise of discretionary acts in its official capacity, including legislative, judicial, quasi-legislative, and quasi-judicial functions.

[ Inserted from an earlier section of the opinion ] The effect of this Court's decision in Wirtz was to bar suits against the State to compel or enjoin performance of an official duty of a discretionary nature; however, Wirtz assures us that injured persons will not be denied redress or remedies under the fundamental law of the land…

“While the rule is that a suit cannot be maintained against the sovereign without its consent, it is equally well established that a clear official duty, not involving the exercise of discretion, may be enforced when performance thereof is arbitrarily refused, and that, if a person will receive injury because an official is about to violate an official or legal duty, for which adequate compensation cannot be had at law, such conduct may be enjoined ...” [quoting Wirtz]

Furthermore, although we abrogate the State's sovereign immunity from tort liability, we conclude that abrogation should be prospective so that the Legislature can implement and plan in advance by securing liability insurance, or by creating funds necessary for self-insurance.

Because the defense of sovereign immunity is not available to the State, we reverse the summary judgment dismissal of Bulman's action against the State.





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