governmental immunity
n. the doctrine from English common law that no governmental body can be sued unless it gives permission. This protection resulted in terrible injustices, since public hospitals, government drivers and other employees could be negligent with impunity (free) from judgment. The Federal Tort Claims Act and state waivers of immunity (with specific claims systems) have negated this rule, which stemmed from the days when kings set prerogatives.
See also: Federal Tort Claims Act immunity
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Federal Tort Claims Act
n. a statute (1948) which removed the power of the federal government to claim immunity from a lawsuit for damages due to negligent or intentional injury by a federal employee in the scope of his/her work for the government. It also established a set of regulations and format for making claims, giving jurisdiction to federal district courts.
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Congressional Withdrawal of Immunity .--The Constitution delegates to Congress power to legislate to affect the States in some permissible ways. At least in some instances when Congress does so, it may subject the States themselves to suit at the initiation of individuals to implement the legislation. The clearest example arises from the Reconstruction Amendments, which are direct restrictions upon state powers and which expressly provide for congressional implementing legislation. 71 Thus, ''the Eleventh Amendment and the principle of state sovereignty which it embodies . . . are necessarily limited, by the enforcement provisions of Sec. 5 of the Fourteenth Amendment.'' 72 Dwelling on the fact that the Fourteenth Amendment was ratified after the Eleventh became part of the Constitution, the Court implied that earlier grants of legislative power to Congress in the body of the Constitution might not contain a similar power to authorize suits against the States.
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It is true that none of these previous cases presented the question of the relationship between the Eleventh Amendment and the enforcement power granted to Congress under 5 of the Fourteenth Amendment. But we think that the Eleventh Amendment, and the principle of state sovereignty which it embodies, see Hans v. Louisiana, 134 U.S. 1 (1890), are necessarily limited by the enforcement provisions of 5 of the Fourteenth Amendment. In that section Congress is expressly granted authority to enforce "by appropriate legislation" the substantive provisions of the Fourteenth Amendment, which themselves embody significant limitations on state authority. When Congress acts pursuant to 5, not only is it exercising legislative authority that is plenary within the terms of the constitutional grant, it is exercising that authority under one section of a constitutional Amendment whose other sections by their own terms embody limitations on state authority. We think that Congress may, in determining what is "appropriate legislation" for the purpose of enforcing the provisions of the Fourteenth Amendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts. 11 See Edelman v. Jordan, 415 U.S. 651 (1974); Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945).

It should be noted that, even if the Court reverses itself and holds that Congress lacks power to abrogate state immunity in federal courts under its commerce and other Article I powers, Congress is not barred by the Eleventh Amendment, nor apparently by any other constitutional provision, from providing authority for suits in state courts to implement federal statutory rights, thus doing away for those purposes with common law sovereign immunity of the states. 85
[Footnote 85] The point was noted and reserved in Employees of the Dep't of Public Health and Welfare v. Department of Public Health and Welfare, 411 U.S. 279, 287 (1973), while Justice Marshall argued that this was plainly the case. Id. at 298 (concurring). Suits under Sec. 1983, for example, may be brought in state courts, Maine v. Thiboutot, 448 U.S. 1 (1980), and state immunities are inapplicable. Id. at 9 n.7; Maher v. Gagne, 448 U.S. 122, 130 n.12 (1980). Inasmuch as state courts are ordinarily obligated to enforce federal law, cf. Testa v. Katt, 330 U.S. 386 (1960), state courts are presumably required to hear Sec. 1983 and other claims, but the Court has expressly reserved the issue. Martinez v. California, 444 U.S. 277, 283 n.7 (1980).

Tort Actions Against State Officials .--In Tindal v. Wesley, 130 the Court adopted the rule of United States v. Lee, 131 a tort suit against federal officials, to permit a tort action against state officials to recover real property held by them and claimed by the State and to obtain damages for the period of withholding. The immunity of a State from suit has long been held not to extend to actions against state officials for damages arising out of willful and negligent disregard of state laws. 132 The reach of the rule is evident in Scheuer v. Rhodes, 133 in which the Court held that plaintiffs were not barred by the Eleventh Amendment or other immunity doctrines from suing the governor and other officials of a State alleging that they deprived plaintiffs of federal rights under color of state law and seeking damages, when it was clear that plaintiffs were seeking to impose individual and personal liability on the offi cials. There was no ''executive immunity'' from suit, the Court held; rather, the immunity of state officials is qualified and varies according to the scope of discretion and responsibilities of the particular office and the circumstances existing at the time the challenged action was taken. 134
Footnotes

[Footnote 130] 167 U.S. 204 (1897).

[Footnote 131] 106 U.S. 196 (1883).

[Footnote 132] Johnson v. Lankford, 245 U.S. 541 (1918); Martin v. Lankford, 245 U.S. 547 (1918).

[Footnote 133] 416 U.S. 232 (1974).

[Footnote 134] These suits, like suits against local officials and municipal corporations, are typically brought pursuant to 42 U.S.C. Sec. 1983 and typically involve all the decisions respecting liability and immunities thereunder. On the scope of immunity of federal officials, see supra, pp.748-51.

Sovereign immunity is a concept that dates back to medieval England (or at least that far back). Initially, the idea was that the King (or Queen) could do not wrong and therefore was not subject to being sued. Over time, the rule was relaxed, but it was still brought over to the United States. Very generally, you cannot sue the government (federal, state or local) unless it consents to being sued. Governments do typically consent to being sued for negligence, BUT when the negligence results from a discretionary act, the suit typically will not be permitted. A discretionary act is one in which someone has to think about it, weigh the pros and cons and then make a choice between two or more options. Whether to fill a given pothole and when is a classic discretionary act.
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