Eleventh Amendment state immunity can be waived by the state's tort claims act (TCA). Like the Federal Tort Claims Act (FTCA), state tort claims acts were enacted by the vast majority of states to address the inequities inherent in sovereign immunity, and hold the state vicariously liable for the torts of its employees. These statutes are strictly construed—a court will resolve any ambiguities in favor of preserving state immunity. If a state employee is sued under a TCA, the state becomes the defendant in the case and is vicariously liable for damages.

Although tort claims acts differ amongst the states, certain exceptions to the waiver of immunity are made in similar fashion to the FTCA. For example, the state will not be liable for an employee's intentional torts, such as battery or sexual assault, or criminal acts. Punitive damages are not usually allowed, and caps are placed on the amount of damages a litigant can recover from the state—usually between $100,000 and $1 million.

Also, immunity from suit is preserved for certain governmental officials. For instance, Michigan provides: "A judge, a legislator, and the elective or highest appointive executive official of all levels of government are immune from tort liability for injuries to persons or damages to property if he or she is acting within the scope of his or her judicial, legislative, or executive authority." Mich. Comp. Laws § 691.1407(5) (1965).
Perhaps most importantly, an employee's governmental, discretionary actions will not subject the state to liability.