Injury Claims Against the Government in Alabama

The Institute for Justice (IJ) is a nonprofit, public interest law firm. Among other things, IJ runs the Project on Immunity and Accountability, filing court challenges to governmental immunities and other laws that make it difficult or impossible to hold governments and government actors responsible for harms they cause. The Project rates each state government for its immunity and accountability laws. Because all states claim some degree of immunity from legal accountability, low IJ grades are common.

Alabama is one of the few states that gets a failing grade. Alabama insulates itself, its agencies, and its officers and employees from almost all lawsuits. If you were injured by Alabama or a negligent Alabama employee, you stand little chance of getting compensation ("damages," in the language of the law) for your injuries. Your odds are better if you were hurt by a local government or local government officer or employee—but don't expect smooth sailing.

We start with a review of government immunity laws generally, including what they are and how they work. From there, we'll turn our attention to the specifics of Alabama law.

Overview of Governmental Immunity Laws

Suing any government—federal, state, or local—isn't the same as suing a private person or a local business. Governments, their officials, and their employees are, as a rule, immune from being sued for damages when their negligence or intentional misconduct causes harm.

Governmental immunities go by a variety of names and come in several forms. For our purposes, the three you're most likely to encounter are:

• sovereign immunity
• official immunity, and
• qualified immunity.

Sovereign Immunity

During the founding era, the colonies—later to become states—inherited English common law as the foundation of their own legal systems. Sovereign immunity was one of the common law rules states adopted for themselves.

The idea behind sovereign immunity is simple: The government doesn't have to pay for its own wrongdoing. Why? One common justification for sovereign immunity is a concern that without it, governments will be inundated with lawsuits, both legitimate and frivolous. The truth is much simpler: Governments, like everyone else, don't like being made to pay for harms they cause.

All states enjoy sovereign immunity, though most have waived it (surrendered it), at least in part. Some states have extended this immunity, or something very similar to it, to local government bodies like counties, townships, cities, and even in some cases to school districts, taxing districts, and other local government agencies.

When sovereign immunity shields the government, you can't sue for damages unless the government has waived its protection. Ask your lawyer about the scope of sovereign immunity in your state.

Official Immunity

In most states, government officers and employees are protected by a counterpart to sovereign immunity known as official immunity. Unless it's waived in whole or in part—as many states have done—official immunity shields government officers from damages liability for acts done in their official capacity and within the scope of their duties.

When you sue a government officer or employee in their official capacity, you're effectively suing the government itself. Without official immunity, the government would be on the hook for damages any time an officer or employee caused an injury. There's little point in the government protecting itself from direct liability via sovereign immunity, only to turn around and be held responsible indirectly by making it pay for an official's wrongdoing.

As with sovereign immunity, official immunity is a complete bar to any lawsuit seeking damages—except to the extent it's been waived.

Qualified Immunity

Qualified immunity is another type of protection for state government officers and employees. It protects them when they're sued in their personal capacity, not in their official capacity. When an officer or employee is doing their job and acting within the scope of their duties, they're protected from damages liability unless they violate a clearly established right that would have been known to a reasonable official acting in similar circumstances.

Qualified immunity gets raised as a defense in many kinds of cases. One of the most common is in lawsuits against police officers for allegedly violating a suspect's constitutional rights. For instance, in a suit claiming that an officer used excessive force while making an arrest, the arresting officer will argue that qualified immunity defeats the claim. In court, it's up to the arrestee—not the arresting officer—to prove that qualified immunity doesn't apply.

In a significant majority of cases, the qualified immunity defense prevails.

Claims Against the State of Alabama

Personal injury (or other) claims against Alabama stand little chance of surviving. A gauntlet of immunities protect the State, its agencies, officers, and employees from having to pay damages for harms they cause. We begin with Alabama's sovereign immunity, then we'll consider "state agent" immunity.

Alabama's Sovereign Immunity

Alabama's sovereign immunity is enshrined in the state constitution: "[T]he State of Alabama shall never be made a defendant in any court of law or equity." (Ala. Const. art. I, § 14 (2024).) This sovereign immunity extends to:

• the State of Alabama
• Alabama departments and agencies
• county sheriffs (Parker v. Amerson, 519 So. 2d 442, 443 (Ala. 1987) and deputy sheriffs (Alexander v. Hatfield, 652 So. 2d 1142, 1144 (1994)), and
• any State officer, employee, or agent acting in their official capacity. (Ala. Code § 36-1-12(b) (2024).)

This immunity is all but impenetrable. If you're hurt by Alabama, a state department or agency, or one of their officers or employees and you sue for damages, your lawsuit is almost certain to be dismissed on sovereign immunity grounds. Talk to an Alabama personal injury lawyer for advice specific to your case.

State Agent Immunity

Under Alabama law, a "state agent" is a state officer, employee, or agent who's being sued in their personal capacity, not their official capacity. Because the term involves only personal capacity claims, a state agent isn't entitled to the protection of sovereign immunity.

Even so, a state agent is protected by another type of immunity—called "state agent" immunity—when the basis of the claim against them involved discretionary functions as described in Ala. Code § 36-1-12(c)(1)-(5) (2024) (codifying Cranman v. Maxwell, 792 So. 2d 392, 405 (Ala. 2000).)

There's no single, one-size-fits-all definition of a discretionary function. In general, though, a discretionary function is one that involves:

• using judgment or discretion in the formulation, review, or execution of state government policy, or
• performing the duties of a state agency or department, when those duties are created by a statute, regulation, or rule.

When State Agents Aren't Immune

A state agent gets no state agent immunity from damages liability when:

• the U.S. Constitution, the Alabama Constitution, or Alabama state laws, rules, or regulations don't allow immunity, (Ala. Code § 36-1-12(d)(1) (2024),) or
• the state agent acted "willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law." (Ala. Code § 36-1-12(d)(2) (2024).)

But note that a state agent, whether entitled to state agent immunity or not, can also claim protection from qualified immunity. (See Marsh v. Sawyer, 876 So. 2d 433, 439 (Ala. 2003).)

Claims Against an Alabama Local Government

Alabama counties, cities, and towns don't benefit from the same sweeping immunities that shield Alabama from legal responsibility. That's the good news. The bad news? Suing an Alabama local government still isn't easy, and even if you win, you might not win. We'll explain.

Claims Against Alabama Counties

Alabama counties (except for sheriffs and their deputies) aren't immune from damages liability arising from wrongful conduct by county officers or employees. In other words, if you're injured by a negligent county worker, you can sue to recover your personal injury damages—subject to the notice requirement and damages cap, both discussed below.

Claims Against Alabama Cities and Towns

Ala. Code § 11-47-190 (2024) makes cities and towns liable for damages caused by:

• a negligent or unskilled officer, employee, or agent, or
• the dangerous condition of "streets, alleys, public ways, or buildings" when the city or town council had notice of the dangerous condition and allowed it to exist for an "unreasonable" length of time.

Special Notice Requirements and Damage Caps

Before you can sue an Alabama county, town, or city, you must provide written notice of your claim. And even if you win your case, Alabama limits the personal injury damages you can recover.

Notice of claim. When you were injured by a county, Ala. Code § 11-12-8 (2024) requires that you present an itemized claim to the county, usually within 12 months from the date you were injured.

Different rules apply when your claim is against an Alabama city or town. You still have to give written notice before you can sue. But the controlling law is Ala. Code § 11-47-23 (2024), which sets up a six month tort (personal injury) claim notice deadline. As a rule, you have just six months, usually from the date you were hurt, to deliver your notice as required by law.

Yet another Alabama statute, Ala. Code § 11-47-192 (2024), describes the notice you're required to provide to the city or town. You must file a sworn statement with the municipal clerk describing:

• how the injury happened
• the date, time, and place where the injury happened, and
• the damages you're claiming.

Not a lawsuit. Note, importantly, that filing a notice of claim isn't the same as filing a lawsuit against the government. Giving notice is a prerequisite to filing suit. If the government denies your claim and you still want to pursue damages, you'll need to file a lawsuit in court before your time to sue runs out (see below).

Why a notice of claim? Why does the law require notice of your claim? After all, the county or city almost certainly will find out about your injury through other sources—a police report, incident report, or the like. These notice requirements aren't really meant to inform the government of impending claims. They're yet another roadblock to government accountability.

Most injured claimants don't know they're required to give notice of their claim before filing a lawsuit. If they sue without giving notice beforehand, the government appears in court and demands that the case be dismissed for lack of notice. The court has no choice but to grant the government's request.

Claim notice requirements are one more good reason why you should get advice from a personal injury lawyer before you go after the government for damages.

Damage Caps

Nearly all states—Alabama included—have laws that limit the damages you can recover in a personal injury lawsuit against the state or a local government. Alabama law caps damages against any "government entity," broadly defined to include counties, municipalities (like cities and towns), departments or agencies of counties and municipalities, and public school boards. (Ala. Code § 11-93-1(1) (2024).)

In any claim against a government entity, damages are capped at:

• $100,000 for injuries to, or the death of, one person in a single occurrence
• $300,000 in the aggregate for injuries to, or the deaths of, two or more persons in a single occurrence, and
• $100,000 for property damages arising from a single occurrence.

(Ala. Code § 11-93-2 (2024).)

Suppose an Alabama county employee negligently runs a red light and broadsides you at high speed, leaving you paralyzed from the waist down. Your medical and other experts estimate your total damages at $8 million to $10 million. You win your case in court. How much will you collect? Just $100,000.

In a claim against a local government involving serious or catastrophic injuries, even if you win, you don't really win.

Check With the Local Government

Before you pursue an injury claim against a local government, be sure to check local law to make sure you know how and where to file your notice of claim. Cities and counties commonly have their own claim forms and notice delivery rules. Better yet, let your lawyer take care of sending the required notice.

Don't Forget About the Statute of Limitations

A statute of limitations is a law that puts a deadline on your time to file a lawsuit in court. Miss the deadline and, barring an exception that gives you more time, your claim is barred. You've lost the right to seek damages for your injuries.

In most (but not all) Alabama personal injury claims, the statute of limitations is two years, likely from the date you were injured. (Ala. Code § 6-2-38(l) (2024).) You can sue Alabama or a local government in Alabama circuit court. Just be sure you file in the correct county, or as lawyers call it, the proper venue.

(Learn more about Alabama personal injury laws and statutes of limitations.)

Get Help With Your Alabama Government Injury Claim

From everything we covered above, here's the biggest takeaway: Injury claims against Alabama or an Alabama local government are hard. If you're thinking about trying to handle a claim on your own, without expert legal help, think again. The government will be represented by lawyers who know the law and how to use it against you. Go it alone and you'll quickly be in over your head.

Make it a fair fight. Hire an attorney who can help you navigate through the minefield of government immunities and roadblocks to give you the best chance of recovering damages. When you're ready to move forward, here's how to find an attorney who's right for you.