Queen?s Law Protects Negligent Government

Unlike a business, government doesn’t have to protect itself from legal losses incurred because of its own negligence. It’s immune.

Immunity from legal action for negligence started with the sovereign authority of the Queen of England, explained Ben Lipscomb, Rogers’ city attorney.

“It goes back to the idea that the Queen of England shouldn’t have to be a defendant in lawsuits filed by her subjects,” Lipscomb said. “They call it tort immunity, but sovereign immunity is what it is.”

Mark Hayes, general counsel for the Arkansas Municipal League, said tort immunity is extended to cities and towns and their employees. It also applies to the state and its counties.

“If we didn’t have tort immunity, the cost of doing government would be tremendous,” Hayes said.

Cities would be sued repeatedly for damages caused by vehicles hitting potholes, he said. The number of lawsuits “would absolutely bring government to a halt,” he added.

The immunity protects the city from “nit picky suits” alleging, for instance, that the fire department didn’t get to a scene fast enough or the police are responsible for an accident caused by a drunk driver they didn’t get off the street, said Kit Williams, Fayetteville’s city attorney.

Juries would be more sympathetic to an injury victim than the city, thinking the city could afford it and the victim needs the money, Williams said.

The city can opt to pay medical bills for such injuries, but it can’t compensate the victims for any pain, suffering or loss of work. Williams said those issues are more subjective and could result in accusations of illegal exaction.

The city may believe it has “a moral obligation” to pay the medical bills, despite the immunity, he said. Fayetteville City Council members denied a request to pay medical expenses a few years ago to a woman who broke both her ankles when she fell while walking in a city park. Williams wasn’t the city attorney then but said he was surprised at the decision.

Slip and fall injuries are hard to prove, however.

“People have a duty to watch where they’re going and not run in the rain,” he said.

The law also provides for the concept of “comparative fault,” forcing the victim to prove the other party is more at fault, Williams said.

Crystal Miller of Elkins was hurt when she fell Aug. 13 while running in the rain on Dickson Street. She stepped off into a storm drain that was gaping open from construction or deterioration — Williams doesn’t know which. Miller’s ankle was broken in several places in the “nasty, nasty fall,” Williams said. He’s not sure if the city will pay Miller’s medical expenses, but he is sure it can’t be sued for any negligence.

“Sovereign immunity is for our own negligence and means we can’t be sued for negligence,” Williams said. “We can’t be sued for our own mistakes.”

Washington County also was exempt from legal action when a high school student fell from a catwalk on the roof of the annex to the old courthouse about 10 years ago, said George Butler, the county’s attorney.

David R. Horne, a Fayetteville lawyer who represented the victim, said the girl became a quadriplegic from the fall. Horne was able to get some money for medical expenses from the Arkansas Department of Education and the Department of Human Services, which had custody of the girl and had allegedly neglected to pick her up on time.

“I really don’t think there was a strong case for liability, but they paid,” Horne said.

The county and the Fayetteville School District were likely more liable, he said. The victim was among several students in a class meeting in the building, and a Fayetteville school teacher was supervising them.

The only liability insurance most Arkansas cities and counties carry covers automobile accidents only.