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Greenwell v. Davis11/22/2005
which the right depends." Hall, 440 U.S. at 415--16 (quoting Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907)); see Hosner v. De Young, 1 Tex. 764, 769 (1846). In addition, sovereign immunity is justified based on the concern that suits against a state would deplete the state's financial resources necessary to operate the government. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 695 (Tex. 2003). "Most sovereigns have long since abandoned the fiction that governments and their officials can 'do no wrong.' To varying degrees, states and the federal government have voluntarily relinquished the privilege of absolute immunity by waiving immunity in certain contexts." Id. Both Texas and Arkansas have enacted statutes which grant limited waivers of sovereign immunity.
A. Arkansas Partial Waiver of Immunity
Arkansas has waived sovereign immunity only to the extent that the governmental entity's liability is covered by liability insurance. Section 21-9-301 of the Arkansas Code provides:
(a) It is declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions of the state and any of their boards, commissions, agencies, authorities, or other governing bodies shall be immune from liability and from suit for damages except to the extent that they may be covered by liability insurance.
(b) No tort action shall lie against any such political subdivision because of the acts of its agents and employees.
Ark. Code Ann. § 21-9-301. Section 21-9-301 is a limited waiver of sovereign immunity. City of Caddo Valley v. George, 9 S.W.3d 481, 484--85 (Ark. 2000). The statute covers municipal officers and employees acting in the scope of their employment, as well as the municipalities themselves. Autry v. Lawrence, 696 S.W.2d 315, 316 (Ark. 1985); Matthews v. Martin, 658 S.W.2d 374, 375 (Ark. 1983). Under Arkansas law, recovery in this case is limited to $20,000.00.
B. Texas Partial Waiver of Immunity
Texas also has a limited waiver of sovereign immunity for negligence in the use of motor-driven equipment. The Texas Tort Claims Act provides in pertinent part:
A governmental unit in the state is liable for:
(1) property damage, personal injury , and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury , or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law; and . . . .
Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (Vernon 2005). Liability of a Texas municipality under the Texas Tort Claims Act is limited to $250,000.00 for each person, $500,000.00 for each single occurrence for bodily injury and death, and $100,000.00 for each single occurrence for injury to or destruction of property. Tex. Civ. Prac. & Rem. Code Ann. § 101.023(c) (Vernon 2005). Under Texas law, official immunity protects a government employee from liability when the employee is (1) acting in the scope of his or her employment, (2) performing a discretionary duty, and (3) acting in good faith. Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000); see Victory v. Faradineh, 993 S.W.2d 778, 780--81 (Tex. App.---Dallas 1999, no pet.); City of Wichita Falls v. Norman, 963 S.W.2d 211, 216--17 (Tex. App.---Fort Worth 1998, pet. dism'd w.o.j.); see also City of Houston v. Daniels, 66 S.W.3d 420, 424--25 (Tex. App.---Houston [14th Dist.]
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