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.