This article is Part I of a series. It addresses the principal of sovereign immunity and reform of English common law, specifically caps on tort claims against Indiana governmental entities and their employees. Part II will focus on tort reform in Indiana for medical malpractice claims.

History of Sovereign Immunity

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Hoosiers have been privy to considerable discussion lately about caps on tort claims. The conversations have focused primarily around the 2011 Indiana State Fair stage collapse. To add insight into the laws that we live and abide by in the state of Indiana, I thought this would be a good time to explain the $5,000,000 state fund made available for tort claimants and how this incident has spawned controversy in the legal and legislative communities as well as among the public in general.

Up until the 1940’s, American sovereign immunity protected nearly every national, state and local governmental entity and their employees from being sued. The principal of Sovereign Immunity stems from the English common law—upon which our American legal system is founded—wherein the sovereign “King could do no wrong” and therefore, could not be sued by his subjects without first extending his permission. However, during the mid-twentieth century a trend toward government accountability began to emerge and the federal government passed the Federal Tort Claims Act (28 U.S.C. §2674), waiving immunity and liability for certain actions.

Then in 1969 the Indiana State Supreme Court ruled on behalf of plaintiffs (Perkins v. State) who had become ill from lake water contaminated with raw sewage while they were renting a cottage located on state property. With regards to the doctrine of sovereign immunity, Judge Arterburn of the Indiana Supreme Court wrote:

“…law is active and dynamic and thus changes with the times and growth of society to meet its needs”.

In his opinion, Judge Arterburn believed the principles of law on which a court rested a previous decision “…do not prevent the courts from ever changing the common law, but the common law must grow and develop with the growth of our society in which it operates.”

Three years later Judge Arterburn in Campbell v. State of Indiana affirmed that the State, acting in a proprietary activity, “…could not avail itself of the immunity privilege.”

Indiana Tort Claims Act

In 1974 the Indiana State General Assembly enacted legislation entitled the Indiana Tort Claims Act. The law currently in place, Indiana Code, Chapter 3, Section 4 addresses the $700,000 cap per claimant, a $5,000,000 limitation on the aggregate liability for all claimants, and prohibits punitive damage awards. Although the individual awards for personal injury claimants have been increased by legislative amendments over the years, the total cap of $5,000,000 liability, per incident, to settle wrongful death and personal injury claims has remained the same since 1974.

In light of the facts, attorneys and legislators are re-thinking the decades old cap and its ability to address the scope of this situation.  Already one attorney has filed suit claiming the cap denies individuals their fair share and creates an economic incentive for the state to act negligently. Many believe the caps are arbitrary; that every claim is unique and requires a case-by-case approach. But in the end, it is likely that the legislature will have their say as well.

Charlie Ward is an  Indianapolis, IN personal injury attorney experienced in accident litigation and wrongful death claims. The law office of Ward & Ward Law Firm receives no legal fees or expenses unless we collect damages on your behalf. Call Charlie today at 317-639-9501 to discuss your accident and receive a free analysis of your claim.

Charlie Ward


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