Federal, state, and local government entities generally protect themselves against personal injury claims through sovereign immunity. Sovereign immunity essentially means you can’t sue the government for injuries sustained on its properties or caused by its employees. In effect, the government prohibits recovery for injuries in public places.
Fortunately, there are exceptions to the sovereign immunity rule. In 1948, Congress passed the Federal Tort Claims Act. This congressional act eased the power of sovereign immunity. It allowed people injured on federal government property or by federal employees to file personal injury claims and lawsuits against the government.
Taking the lead from the Federal Tort Claims Act, one by one, states began to enact their own forms of tort claims acts, permitting people injured on state or city property, or by government employees to file personal injury claims. By allowing injury claims, state and local governments effectively waived sovereign immunity.
Common injuries in public places include:
- Slip and falls in government buildings and on adjacent government property
- Auto accidents due to poorly maintained roads, or from obstructed or defective traffic signals
- Public school assaults by teachers and students
- Drowning in public pools
- Falls on mass transit systems like subways or public busses
- Injuries at post offices, tax offices, the DMV, and more
The Legal Duty to Keep Public Property Safe
Federal, state, and local governments are responsible for making government property safe for visitors, including private individuals and contractors invited onto the property to make repairs or improvements.
When a government agency fails to keep the property it owns or controls safe from dangerous conditions, it’s considered negligent. When that negligence results in injuries, the government has to pay for the injured person’s damages. For government tort claims, damages normally include medical bills, out-of-pocket expenses, lost wages, and pain and suffering.
Unlike private non-government injury claims where damage compensation is almost unlimited, the government caps its injury settlement amounts. Further, unlike private injury claims where gross negligence or reckless disregard for the safety and wellbeing of others can result in punitive damages, government statutes exclude punitive damages.
What is government negligence?
The courts have traditionally said government agencies must exercise the same level of care to protect their property from dangerous conditions as any private party would. When the government fails to exercise that care, they’re liable for injuries suffered by those legally on their properties.
If while walking through a privately owned apartment complex, a person was hurt when she fell in a pothole, the landlord is likely liable. If while driving down a state road, a driver hits a large pothole and is hurt, the state road agency is also liable.
In both cases, the pothole must have existed long enough for the landlord or the state road authority to know it existed. In other words, if the pothole on the apartment property or state road developed quite recently, the landlord or road authority may not have had a reasonable amount of time to discover and repair it, and therefore may not be negligent.
To prove government negligence, you must show:
- The government agency owned or controlled the property.
- A dangerous condition existed on the property.
- The government agency knew, or should have known the dangerous condition existed.
- The agency had a reasonable amount of time to repair the dangerous condition and didn’t.
- Your recklessness or hazardous conduct didn’t bring about your injury.
Filing Claims for Injuries on Public Property
The process of filing a personal injury claim against a government agency is different from filing one against a private person or entity. Personal injury claims against non-government entities normally begin with notifying the negligent party’s insurance company. If the insurance company denies the claim or offers too little, the injured party can file a lawsuit. This isn’t the case with claims against the government.
Government property includes public parks, government buildings, public museums, public sidewalks, federal, state, and local roadways, and all other locations a government agency owns or controls. When an injury occurs on government property, the injured party must begin by filing a notice of claim against the agency responsible for maintaining the property.
The notice of claim makes the government agency aware of your intention to seek compensation for your injuries. The notice also gives the agency time to respond to your claim by either denying or admitting it. If the agency admits your claim, you’ll receive compensation. If the agency rejects it, you have the right to file a lawsuit. Most state and local governments model their notice of claims on the Federal Notice of Claim – Form SF 95.
For your individual state or city’s notice of claim, go to your state government’s website. Each state also has its own time limits, or statutes of limitation, for filing forms. The filing period is anywhere from 60 days to six months from the date of your injury, or the date you discovered your injury. If you miss the filing deadline, the court can dismiss your injury claim outright.
In most cases, the government agency will have up to 45 days to respond to your claim. If the government denies the claim, you have up to six months to file a lawsuit. Each state has different laws and regulations regarding filing periods. To make sure you don’t miss your deadline, go to your state government’s website.
Proving Your Injury Claim
The proof required to win your claim is quite similar to the proof needed in any other injury claim. All successful personal injury claims must have evidence. The more evidence you have of the government’s negligence, the better your chances.
Identifying government property like public parks, state roads, commuter rail cars, and public schools is relatively easy. Some properties aren’t as easy to classify as government owned. Finding ownership or control of some government property may take a little research.
For example, if you were injured when you slipped and fell on a cracked and uneven sidewalk outside your local grocery store, you may have to go to your local tax collector’s office or property records department to learn whether the grocery store or the governement owned that part of the sidewalk.
Photographs and Video
If you don’t have a digital camera, use your cell phone to document your injury’s cause. Record it from several angles, making sure there’s little doubt about the danger. Remember, once the government agency learns about your injury claim, there’s a good chance it will quickly repair the dangerous condition that caused it. Once that happens, you’ve lost the opportunity to gather evidence vital to your claim.
Example – Obstructed Stop Sign
You were driving down a local road when another vehicle sideswiped you. You were injured. The driver claimed you ran the stop sign and so you’re liable for the crash. You told her there was no stop sign. When the driver pointed out the sign, you realized you couldn’t see it because an overhanging tree on government property next to the road was overgrown and obstructed your view.
By photographing the obstructed stop sign, it will not only help in defending against the other driver’s claim, but will also permit you to file a cross claim against the state roadway authority for negligence. Your cross claim may not only relieve you of liability for the driver’s claim, but will also help you succeed in recovering damages from the government.
While family and friends make good witnesses, independent onlookers make great witnesses. Independent witnesses have no personal or financial stake in your claim’s outcome. Their statements can weigh heavily in your favor. Ask witnesses to write down on any available paper what they saw and heard. Have them sign and date their statements.
Example – Broken Chair
While renewing your driver’s license at the motor vehicle department, you sat down on a chair next to a clerk’s desk. As you sat down the chair broke, and you fell and hurt your neck and back. Along with several clerks, there were others waiting in line who came to your aid.
While waiting for the paramedics to arrive, you’d want to ask the clerks for their names. Ask them to call the department head. Ask those who came to your assistance to write down what they saw. If they can’t immediately write down their statements, ask for their names and contact information so you can contact them later.
When the government department head comes over, she will likely take down your information and complete an incident report. The report records injuries in public places. Make sure it’s clear you did nothing wrong. You sat down – the chair broke. Write down the department head’s name and badge number. Also ask for a copy of the incident report.
Admissions Against Interest
Listen to any statements the clerks make, especially those regarding the chair’s dangerous condition. Their statements are especially valuable if they show the government knew of the dangerous condition and failed to repair, replace, or remove it.
Continuing with our example, while you were waiting for medical assistance a clerk said “I told my supervisor the chair leg was loose,” and another chimed in, “That chair is so old it’s no wonder it broke apart.”
Statements like those are admissions against interest, which means they’re saying something that’s not to their employer’s benefit. Because employees said those things, the motor vehicle department will have a tough time denying previous knowledge of the chair’s dangerous condition. Consequently, these admissions make powerful evidence in your claim.
To complete your claim, you have to link your injuries directly to the government agency’s negligence. You also have to prove the severity of your injuries, the type of treatment you received, and the costs associated with that treatment. The only way to do that is with copies of doctors notes, test results and other medical documentation.
Your medical records will help show the dangerous condition was the direct and proximate (legally acceptable) cause of your injury. While photographs, witness statements, and admissions against interest are important, the treating doctor’s written diagnosis is the link you need to verify your injuries were real, and were due to the government’s negligence.
Hiring a Personal Injury Attorney
When considering whether to hire an attorney, it’s important to account for the rapidly approaching claim filing deadline. If your injuries prevent you from filing the notice, you might want to speak with an attorney.
Additionally, if your injuries are serious, including broken bones, second- or third-degree burns, head injuries, etc., don’t hesitate to see a licensed attorney. Too much is at stake for you to handle the claim yourself. One error could cost you your settlement. When looking for an attorney, try to find one with experience with injuries in public places.
In the alternative, if your injuries are soft tissue, such as sprains, minor burns, and/or whiplash, and you’re well enough to follow the claim’s time constraints, you can pursue the claim on your own.
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