The National Academies

ACRP 11-01/Topic 05-02 [Final]

Sovereign Immunity for Public Airport Operators
[ ACRP 11-01 (Legal Aspects of Airport Programs) ]

  Project Data
Research Agency: Seay Law International, PA
Principal Investigator: Pamella A. Seay
Effective Date: 11/7/2013
Completion Date: 6/30/2014

The legal principle of sovereign immunity has its origins in the common law principle that as the ruler of the country, sovereign (government) cannot be sued unless it consents. Today, while the principle remains, it is the subject of legislative enactments at the federal and state levels that circumscribe, limit or otherwise waive sovereign immunity. The Eleventh Amendment to the United States Constitution also protects states from being sued in federal courts.
Most public airports are owned and operated by units of local government or regional governmental authorities. Airport owners may be cities, counties, local airport authorities, local or regional multi-modal transportation authorities, and bi-state authorities. A few states operate airports directly. For the various local governmental authorities, any sovereign immunity must derive from state legislation, because local governments are not recognized as sovereigns in their own right, but are treated as exercising sovereign powers delegated by the states. 
The extent of sovereign immunity granted to airports varies from state to state. State legislation may distinguish between the type of local entity. A county’s immunity may not be coextensive with a city’s. The law may distinguish between “governmental” functions and “commercial” functions. Airport operations may be categorized as governmental in one jurisdiction and commercial in another. Judicial decisions may also affect the scope of an airport operator’s sovereign immunity. In some states sovereign immunity may not be granted to municipal entities but state law may limit the types of claims that can be brought or cap the amount of damages that can be recovered. In addition, state laws or judicial interpretations may provide for express waivers of sovereign immunity (for example, through the purchase of liability insurance) 
or the loss of sovereign immunity through conduct. 
The objective of this research is to produce an easy-to-use compendium of the law of sovereign immunity as it applies to airports in each of the states and territories of the United States. The report should provide general background on the theory and underlying legal sources for the principle of sovereign immunity and the application of the principle to airport operators. The report also should identify the major issues considered by legislatures and the courts in determining whether an airport operator has the benefit of sovereign immunity. Finally, the report should include summaries of the application of the sovereign immunity principle to publicly owned airports in each state and territory. Issues that should be discussed in the state and territory summaries include:
  • What are the sources of the law governing airport sovereign immunity (legislation, judicial decisions, combination)?
  • What is the scope of sovereign immunity for airports? 
  • Are there any differences in the scope of sovereign immunity based on the nature of the governmental entity operating the airport? If so, what are the differences?
  • Are there any differences in the scope of sovereign immunity based on the nature of the activity that gives rise to a claim against the airport operator?
  • What is the legal theory supporting the grant of sovereign immunity to airports in the state or territory and for any limitations on sovereign immunity?
  • Aside from a grant of sovereign immunity, are there any limits on the types of claims that can be brought against airport operators or caps on the amount of damages that may be recovered from airport operators? What are the sources of law for these limits?
  • What are the mechanisms by which an airport operator can explicitly waive sovereign immunity or can surrender sovereign immunity by conduct? What are the associated sources of law?

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