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Copyright (c) 2009 Northern Kentucky University
Northern Kentucky Law Review

Article: Government Tort Liability: A Survey Examination of Liability for Public Employers and Employees in Kentucky



36 N. Ky. L. Rev. 377


Matthew T. Lockaby* and JoAnna Hortillosa**


I. Introduction

The doctrine of sovereign immunity is one of the most disparaged legal principles by courts and legal scholars. Rooted in English common law, it is based on the theory that "the King can do no wrong." 1 Under the doctrine, no one can bring suit against the government without its consent, and individuals harmed by the torts of the government, its agencies, or its employees are often left without a remedy. 2

The reasons for its unpopularity, of course, are numerous. For instance, application of the doctrine is generally avoided on the basis that it is unjust to force an injured party to bear exclusively the loss even though he would have been able to recover if the tortfeasor had been a private person or entity. 3 The government, it is argued, is in a better position to bear the burden and has the ability to shift it to the entire community. 4 It has also been said that, by denying a remedy to any person harmed by the tortious conduct of the government, its agencies, or its employees, the application of the sovereign immunity doctrine "results in a deprivation of life, liberty, and property without due process of law." 5

Despite the many criticisms, however, sovereign immunity is still alive, though not necessarily kicking, today. Many courts observe the issue of immunity more in terms of a reasoned approach to the policies involved, and give less regard to its historical significance. 6 In recent years, ...
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