Inspired. Creative. Resourceful.

Personal Injury Claims against the Government

by | Sep 8, 2013 | Firm News |

Under early British common law, the antecedent to American legal principles, lawsuits against the government were not permitted. At the time, all law was the purview of the sovereign and no monarch was interested in allowing themself to be sued. As more democratic systems of government developed, the argument evolved. In early American law, claims against the government were bared on the ground that the government was essentially composed of the people and it seemed antithetical to principals of collective action to allow the negligence of a single government employee to drain the public coffers.

This governmental immunity from liability was first waived in California with the passage of limited express exceptions in 1923. During the years that followed, common law developments and judicial decisions somewhat expanded the short list of exceptions, particularly with regard to dangerous properties. The result was a complex and uncertain collection of exceptions and exceptions to exceptions that produced varying outcomes even among similar cases.

Tort Claims Act

In 1963 the California legislature passed the California Tort Claims Act, now codified in Government Code 815 et. seq., to level the playing field. The comprehensive law eliminated most of the previous body of law with regard to governmental immunity and replaced it with a unified set of requirements that every potential plaintiff must follow before suing a public entity. Principal among the new regulations was a requirement that an injured party file an official claim with the entity in question no longer than six months after learning of the injury. Only after an agency denied that claim, either in whole or in part, could a person continue with a traditional lawsuit against the government.

What kind of lawsuits qualify?

The Tort Claims Act also specifically defined the circumstances under which a governmental entity could be held liable for personal injury. Specifically, the following five elements must generally be present.

  1. The injury must occur on public property
  2. The property must be dangerous
  3. The risk of injury must be reasonably foreseeable
  4. The dangerous condition must have been created by the negligence of a government employee acting within the scope of employment or the agency must have had reasonable notice of the danger and time to correct it.

In addition, a plaintiff must be able to prove that the dangerous condition was the proximate cause of the injury; a legal term-of-art that essentially means the injury must be an expected and normal result of the dangerous condition.

Suing government employees?

Under the law, government employees are generally liable for their actions in the same way as are private citizens. However, the government will step in to cover the damages of a liable employee if the plaintiff’s injury resulted from actions the employee took while acting in the scope of employment. However, there are a number of specific immunities and other requirements that apply to certain situations so careful investigation of the underlying circumstances is imperative.

Filing a claim

In order to bring a lawsuit against the government under the Tort Claims Act, the injured person must file a sufficient claim with the public agency in question within six months of learning of the injury. This requirement is somewhat complex in that claims must be legally sufficient and properly filed. However, public agencies are required to simplify the process somewhat by maintaining a public notice regarding how to file a claim against that agency. In addition, agencies must respond to claims within certain specific time frames and their failure to either post a sufficient notice or respond timely to claims may waive their immunity under the law.  This area of the law is complex and care must be taken when preparing and filing claims.

Childhood Sexual Abuse

Under a recent change to the Tort Claims Act, claims for injuries resulting from sexual abuse which took place after January 1st, 2009 are handled differently than most other types of injuries. Such claims have an extended filing requirement.

Mandatory Duty

Certain public agencies are required by law to take steps to prevent some types of injury to the public. In cases where an agency fails to fulfill its duty under such a law, injured parties may have additional expanded options for recovering from the agency. However, the plaintiff’s injury must be of the type the agency was supposed to protect against.

Bottom line

Suing the government is not easy. A number of specific legal hurdles have been developed to give governmental entities special protection against liability. If you have been injured on public property or by a government employee, you may have even less time than usual in which to take legal action. You cannot afford to wait until you are feeling better or until you have all the facts collected before starting the legal process. The good news is that there are ways to recover from a public agency if you fulfill all the prerequisites such as timely filing a completed claim with the agency. Act quickly to protect your legal rights