Can government be held accountable for harming you?

The following op-ed was published this weekend in the Salt Lake Tribune.

What do lifeguards, snow plow drivers, and police officers, have in common? From recreation centers to police forces, government employs people in a wide range of careers.

From the outside, entities owned and operated by the state appear to run just like a regular business. Customers come and go, and operating hours are similar to surrounding businesses. But legally speaking, there aren’t just vast differences between public and private businesses in the way they’re funded, but in their legal liability to customers.

When private businesses inadvertently harm or knowingly violate an individual’s rights, they are bound by law to take full responsibility if a court finds them guilty. Their government-owned competitors, however, can get a free pass.

To successfully bring a lawsuit against a government employee or entity, certain criteria must be meticulously met or the case will be dismissed. An individual probably had to have sustained considerable harm to their property or person as a direct result of government negligence.

Take the case of Esther Israel. In 2007, she was a student at the University of Utah working on her master’s degree. Israel asserts her work was taken and published without her consent. After the university failed to adequately resolve her concerns, she filed a lawsuit against the university and certain individuals who were involved in the publication. Before the case was heard in court, the university was dismissed from the lawsuit due to immunity protections.

Because the university is public, they are afforded protections that private entities do not enjoy. If this same case were to be brought against Brigham Young University, for example, it would have probably gone forward. When a private organization breaks the law or causes another person harm, they can be held liable in court even if criminal charges are never pursued. But under the guise of government, public establishments have the ability to hide behind immunity laws thereby avoiding accountability.

Sovereign immunity arose from the Supreme Court’s interpretation of the 11th amendment to the U.S. Constitution, which protects states from lawsuits in federal courts. The high court has also ruled that immunity can be upheld for non-consenting states in Alden v. Maine—meaning you have to ask your state for permission to sue them. Although the U.S. Constitution doesn’t mention lawsuits brought against individuals, government employees have likewise been protected from lawsuits in federal court, with certain limited exceptions. States, including Utah, have followed a similar model by adopting their own form of immunity to protect their entities and employees in state courts.

Even if one is able to successfully sue the government, they are limited in how much compensation they can receive from the state. Utah law only currently allows for up to $583,900 to be paid in damages for personal injury. Although this number seems high, this arbitrary limit creates an injustice when put in context of what a jury may have otherwise awarded.

Imagine a jury finds the state responsible for a person’s injury that exceeds $2 million in hospital bills. Only $583,900 will ever be paid at most, which is not nearly enough to make the victim whole again. If the guilty party were a private business, they could have been subject to paying the full amount.

If immunity laws exist, they should be amended to remove the cap on government payouts. This way, people can actually utilize the justice system to hold government accountable, and will be guaranteed the opportunity for full compensation for everything they endured rather than a partial payment and a shrug of the shoulders—if they’re lucky to even get that.

Once the cap is removed, certain government entities should be required to purchase liability insurance. The premium payments for these policies would differ depending on each agency’s risk potential—smaller coverage for universities and more for police departments, for example. Government agencies would be held financially responsible for their own mistakes. If insurance rates increase as a result of too many accidents, their budget would also be affected, where specific people and practices could be held accountable. More importantly, whether it be a settlement agreement or court decision, victims who have valid claims would be made whole.

Holding government fully accountable would be a vast improvement to ensure justice is served. No business should be completely immune from accidents occurring, and that doesn’t change in the government sector—which is why Utah’s law must be amended to properly insure government entities and subject them to liability when individuals are wrongly harmed by their actions.