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Cok Kinzler PLLP

Explaining the concept of sovereign immunity

Most in Bozeman may likely assume that whenever one is seriously injured or killed on another’s property, the property owner may be held liable if the conditions or a feature of the property contributed to the event. Montana is renowned for its many state and national parks, the owners of which are the local and federal governments, respectively. In cases where one is killed in such an area, can those entities be named in a liability claim?

Many might automatically assume that government agencies are immune from legal liability in such cases. That assumption seems to be supported by the legal principle of sovereign immunity. This concept (as explained by the Legal Information Institute) makes federal, state and local governments immune from any legal action that such agencies do not consent to. It arises from the English common law notion that one cannot sue the king. However, its application in the U.S. has changed over the years.

Through the Federal Tort Claims Act of 1946, the U.S. government waived its right to sovereign immunity, and permitted individual state governments to do the same. According the Section 2-9-101 of Montana’s Annotated Code, the government can be named as a defendant in a lawsuit stemming from the wrongful action or negligence of one its own employees that results in the personal injury or death of another. For the purposes of this statute, an employee can be an officer, worker, elected official or persons working either permanently or temporarily on behalf of a governmental agency.

In order for this statute to apply, however, it must be shown that the employee was operating within the scope of his or her employment. This law also applies to monetary damages only. 

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