What’s the difference between the SC State Tort Claims Act (SCSTCA) and 42 USC § 1983?
If you want to sue the government for anything – police misconduct, false arrest, breach of a contract, or even a car crash with a government vehicle – you must file suit under a statute or theory that gives you permission to sue the government.
The doctrine of “sovereign immunity” was adopted by America’s early courts from England’s common law – “the King can do no wrong…” You could not sue the King in Old England, but, in the US, you can sue the government although there are limitations.
The SC State Tort Claims Act and 42 USC § 1983 are two ways that the government has given all of us peasants permission to sue for wrongs committed by government agents (there is also a federal tort claims act, a federal “Bivens claim” cause of action, and each state has their version of the Tort Claims Act).
Each type of claim has its benefits and drawbacks – below, we will take a look at each of them in turn and the differences between them.
The SC State Tort Claims Act (SCSTCA)
Below, I’ll go over some of the basics of the SC State Tort Claims Act and its limitations – nothing you read here should be considered legal advice, however.
Civil rights law, including how the State Tort Claims Act works and § 1983 liability, is a complex area of law that is fact-specific and that is controlled by state and federal statutes and case law.
If you believe you have a claim under the SC State Tort Claims Act or a § 1983 claim, contact a SC civil rights attorney immediately for legal advice that is specific to your situation.
Exceptions to the Waiver of Immunity
SC Code §15-78-60 contains a list of 40 situations where the state does not waive its sovereign immunity, and you cannot sue.
I won’t list all 40 here, but they include harm resulting from a broad range of situations like:
- Legislative or judicial action or inaction,
- Civil disobedience, riot, insurrection, or rebellion,
- Snow or ice conditions “unless the snow or ice thereon is affirmatively caused by a negligent act of the employee,”
- Assessment or collection of taxes,
- The release or escape of prisoners,
- Holding or conduct of elections,
- Conduct of a government employee that is “outside the scope of his official duties or which constitutes actual fraud, actual malice, intent to harm, or a crime involving moral turpitude,” and
- Imposition of a quarantine.
If you think you may have a cause of action under the State Tort Claims Act, you may want to look to this statute first to determine if your cause of action is excluded.
Who is Named as Defendant in a State Tort Claims Act Lawsuit?
SC Code §15-78-70 says that you cannot sue an individual government employee under the State Tort Claims Act. Instead, you must name as defendant the governmental entity that the person worked for – an agency or political subdivision.
This doesn’t give government employees blanket immunity, however. You can still sue the individual if “the employee’s conduct was not within the scope of his official duties or… constituted actual fraud, actual malice, intent to harm, or a crime involving moral turpitude,” just not under the State Tort Claims Act.
Verified Claims and Statutes of Limitations
Under SC Code § 15-78-80, you have the option of filing a “verified claim” with the political subdivision, the State Fiscal Accountability Authority, or the State Attorney General instead of filing a lawsuit.
If you do not file a verified claim (in many cases, it is pointless because they will not pay it), the statute of limitations for a State Tort Claims Act lawsuit is two years.
If you do file a verified claim, you must then give the government 180 days to approve or deny your claim before you can file a lawsuit, but, if your claim is rejected, your statute of limitations is increased to three years under SC Code § 15-78-110.
Caps on Damages
The biggest drawback to a SC Tort Claims Act lawsuit is that your damages will be limited by SC Code § 15-78-120 to:
- $300,000 per person for a single occurrence,
- $600,000 for a single occurrence regardless of the number of injured persons, and
- $1,200,000 for medical or dental malpractice for a single occurrence regardless of the number of injured persons.
In some cases, this may be enough to fully compensate an injured person. In other cases, it is not sufficient compensation, such as in the case of serious injuries that result in extensive treatment or lifelong disability.
Punitive Damages and Prejudgment Interest
SC Code § 15-78-120 also prohibits punitive damages and prejudgment interest in a State Tort Claims Act lawsuit, no matter how egregious the government agent’s conduct was.
Attorney Fees
The SC State Tort Claims Act does not authorize the recovery of attorney fees for a successful lawsuit.
Jurisdiction
A State Tort Claims Act lawsuit must be filed in SC state court in the appropriate venue. If the Tort Claims Act causes of action are accompanied by one or more § 1983 claims, however, the federal court can claim jurisdiction over the federal (1983) claim, in which case the federal court will also have “ancillary jurisdiction” over the state-court claims.
You can file the lawsuit in state court, but the defendant will have the right to “remove” the lawsuit to the federal court because there are federal claims.
42 USC § 1983 Claims
While the State Tort Claims Act is based on state-law causes of action, 42 USC § 1983 creates a separate cause of action for any person who, “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia,” is subjected to “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.”
This applies to any state or local official – and any person who acts in concert with them – who acts to deprive you of your constitutional rights or rights granted under federal law (if the bad actor is a federal agent with no state actor involvement, you can still file what is called a “Bivens action”).
In a 1983 action, you must identify the constitutional or other federal right that has been violated. For example:
- A First Amendment violation if you were arrested for voicing your opinion to a police officer,
- A Fourth Amendment violation if you were detained unlawfully, searched unlawfully, or subjected to excessive force (pre-conviction),
- An Eighth Amendment violation if you were subject to excessive force after conviction, or
- Deprivation of rights granted under any federal law (unless Congress has foreclosed a § 1983 action by providing a specific cause of action in the statute or the statute does not create “rights” within the meaning of § 1983).
How else is 42 USC § 1983 different from the SC State Tort Claims Act?
Exceptions to the Waiver of Immunity
There are no exceptions that are enumerated in 42 USC § 1983, although there are limitations like the qualified immunity that is given to police officers, the absolute immunity given to prosecutors or judges for their role in judicial proceedings, or limitations on liability enacted by Congress.
Who is Named as Defendant in a 1983 Action?
In a 1983 action, you must name the individual or individuals who caused the harm as the defendants, and you cannot (with some exceptions) name the agency or political subdivision that employs them.
Verified Claims and Statutes of Limitations
There is no “verified claim” process for a 1983 action, and the statute of limitations is three years in every case.
Caps on Damages
There is also no cap on the damages available in a 1983 claim – you are entitled to full and fair compensation for your injuries, including prejudgment interest, punitive damages when appropriate, and attorney fees under 42 USC § 1988.
Jurisdiction
If you file a 1983 action with no accompanying state-law claims, it must be filed in the federal court.
Should I File a State Tort Claim Act Lawsuit or a 1983 Action?
This is a question for your civil rights attorney to answer based on the unique circumstances of your case – there may be valid reasons to file only a State Tort Claim Act lawsuit, only a 1983 action, or both.
Questions About the SC State Tort Claims Act?
The Charleston, SC civil rights attorneys at the Boles Law Firm can help you to determine liability, gather the evidence you will need in court, negotiate with the government, and recover the maximum compensation that you are entitled to under state or federal law for your injuries.
Call us at 843-576-5775 to schedule an appointment for a free consultation at our North Charleston or Walterboro offices or send us a message through our website.
