Can you sue under a state tort claims act?
The Maryland Tort Claims Act provides exclusive liability against the State for actions of state employees committed within the scope of employment and without malice or gross negligence. The Maryland Local Government Tort Claims Act provides broad liability for municipalities.
A Constitutional Right to Damages
Maryland presents a relatively plaintiff friendly government-liability landscape. The State has recognized a cause of action for damages under its Declaration of Rights against both the government and its employees. 1 However, not every provision of the Declaration of Rights will support a damages claim. 2 A private right of action exists for any “self-executing” provision of the Declaration of Rights, but no damages claim exists unless the right secured is an individual right. 3
The Maryland Tort Claims Act and Local Government Tort Claims Act
The right of action recognized under the Maryland Constitution is subject to the immunities, liabilities, and procedural requirements laid out by the legislature in both the Maryland Tort Claims Act (“MTCA”) and the Maryland Local Government Tort Claims Act (“MLGTCA”). 4 The MTCA provides exclusive liability against the State for actions of its employees committed within the scope of employment and without malice or gross negligence. 5 Intentional and constitutional torts can be brought against the State, provided that they do not reach the level of “malice or gross negligence.” 6 While state officials are completely immune from actions for which the State has waived sovereign immunity under the MTCA, they will be personally liable if their conduct rises to the level of “malice or gross negligence.” 7
Municipalities are exposed to a higher degree of liability than the State is. They can be held liable “for any judgment against its employee for damages resulting from tortious acts or omissions committed by the employee within the scope of employment with the local government.” 8 Local government entities can also be held directly liable for “a pattern or practice” of tortious conduct or constitutional violations. 9 Local government employees can be held personally liable only if their conduct rises to the level of “actual malice.” 10 Unlike the MTCA, the MLGTCA allows plaintiffs to hold both the local government entity and the employee liable if the employee’s action constitutes “actual malice.” 11 Both the MTCA and the MLGTCA contain strict damages caps for actions against the government. 12