On any given day, Lake Guntersville is filled with boaters and fishermen. Through the years, I’ve handled numerous personal injury cases involving boat or jet ski crashes on our northern Alabama lakes. Why do I mention Lake Guntersville? It is a huge and beautiful lake created by one of the Tennessee Valley Authority’s (TVA) dams. Beyond our rivers and lakes, the TVA operates power plants and other facilities across our region. TVA supplies our electricity like any other power company. Over many decades, the TVA fueled economic development in our region.
What happens when the TVA is negligent and an innocent person is hurt or killed? After all, the TVA is a government agency. Does the TVA enjoy the immunities of our government? Does “sovereign immunity” shield the agency from accountability? Can the TVA be held responsible for the damages it causes (just like any other company)?
A recent U.S. Supreme Court case addressed this very issue. What happened? TVA employees were raising a downed power line that had been submerged in the Tennessee River. A man named Gary Thacker drove his boat into the area and hit the power line. Thacker suffered serious personal injuries and his passenger died in the crash. Thacker sued the TVA for his injuries. The local Federal District Court dismissed his case on the grounds of sovereign immunity. The Court of Appeals affirmed that dismissal. Looks like Thacker’s case is over. But, wait! His attorney appealed to the U.S. Supreme Court. I’m always impressed by an attorney who will fight for his or her client.
Justice Kagan delivered the Supreme Court’s opinion. I’ll cut to the chase — The TVA can be held accountable for its negligence in many situations.
How did the Court reach its conclusions. I’ll discuss a few brief notes. The Tennessee Valley Authority Act of 1933 which created the agency, specifically states that the TVA “[m]ay sue and be sued in its corporate name.” As Justice Kagan noted in her opinion:
That provision serves to waive sovereign immunity from suit. Today, we consider how far the waiver goes. We reject the view, adopted below and pressed by the Government, that the TVA remains immune from all tort suits arising from its performance of so-called discretionary functions. The TVA’s sue-and-be-sued clause is broad and contains no such limit.
The Supreme Court noted that when Congress gives agencies a “sue-and-be-sued clause,” it should be liberally construed. Congress has the right to waive sovereign immunity and did so broadly when it created the TVA. The sue-and-be-sued clause renders the agency liable to the same extent as any other private party. The following quote from the case encapsulates the general holding:
When the TVA or similar body operates in the marketplace as private companies do, it is as liable as they are for choices and judgments. The possibility of immunity arises only when a suit challenges governmental activities — the kinds of functions private parties typically do not perform. And even then, an entity with a sue-and-be-sued clause may receive immunity only if it is ‘clearly shown’ that prohibiting the ‘type of suit [at issue] is necessary to avoid grave interference’ with a governmental function’s performance.
We need to think about TVA’s various activities. The agency has eminent domain power — it can take property like other governmental entities. The agency has police power — it can arrest people on its property. Those are certainly governmental functions. In other ways, the TVA is just like private power companies. It sells electrical power in the northern part of Alabama. Why should TVA be treated differently than the Southern Company (and it subsidiary Alabama Power) which supply electricity to other surrounding areas?
Injured by an action of the TVA or one of its employees? The agency will not have blanket sovereign immunity. The trial court will need to look at the surrounding facts. The trial court will need to decide if the TVA activity at issue was governmental or commercial in nature. If commercial, the TVA can be held accountable. Even if strictly governmental, the TVA may still be held accountable and the agency has a high burden to prove the case gravely interferes with a governmental function. Congratulations to the lawyers who fought this fight and achieved a just legal decision for their client.
At the Blackwell Law Firm, we specialize in serious personal injury cases. Many of these cases involve car, commercial truck or boat accidents. From our office in Huntsville, we represent clients across Alabama. Outside court, we frequently write articles on legal issues important to our Alabama personal injury practice.