Ugly Side of Tort Immunity for State Employees

The ugly downside of the immunity granted local government officials in official actions was in full display in a recent Illinois case.

Three teachers were allegedly accused of forcing a teenage girl with the brain function of an 8 year-old and in a wheelchair to clean blood from a school bathroom after she need assistance with her menstrual cycle.  According the Chicago Tribune, the teachers did not ascertain whether the blood had come from her before requiring her to clean it up. NO matter how you read this it sounds downright cruel for the teachers to treat a child, any child this way.

The parents, justifiably appalled, took action by filing suit. Unfortunately, the Tort Immunity Act in Illinois stood in the way.

Under that act, government employees carrying out duties in their official capacity are immune from liability. Hence, forcing a mentally handicapped child to clean up blood that may or may not have been her own is okay. Why? There was no policy in effect to deal with such a scenario hence the teachers could use their discretion on how to handle the incident.

Other states have similar statutes and protect government employees from tort liability.

Here in Maryland, state employees have sovereign immunity for acts or omissions if if the acts are made without malice or gross negligence.

In addition, individuals can sue state actors under the Maryland Tort Claims Act which has strict filing guidelines and limitation on the amount of the recovery available.