Premises Liability Claims Against the Government

One of the most common premises liability situations occurs when a member of the public is injured by a defect on a public sidewalk or roadway. For example, many accidents occur when traffic lights or signs do not function properly, are obscured, or are not present at all.

Another example of premises liability is when a local government entity is performing roadwork involving an excavation or obstruction of the roadway, and someone is injured due to the change in the road's surface or traffic flow.

Finally, a very common situation is also where someone is injured when they trip and fall due to a defect in a public sidewalk.

In these cases, it would seem clear that the government unit responsible for maintaining the road or walkways should be held legally responsible to the injured party.

Traditionally, however, government bodies are protected by what is known as "sovereign immunity." Under such immunity, government bodies are shielded from being sued or held liable in lawsuits.

State and federal governments have reduced this broad sovereign immunity over the years. States have reduced these protections by passing various laws. These laws vary from state to state, but most are modeled on the Federal Tort Claims Act. This is a federal law waiving the sovereign immunity of the federal government under certain circumstances.

Consider reviewing the following resources for more about these issues:

• Premises Liability: Who is Responsible?
• You Can Sue City Hall
• Injury Claims Against the Government

The Federal Tort Claims Act

Congress enacted the Federal Tort Claims Act (FTCA) in 1946. Prior to that time, the federal government could not be sued for a personal injury, a wrongful death, or property damage caused by its employees unless there was a specific act of Congress explicitly authorizing such an action.

Today, by contrast, the FTCA allows people to recover against the federal government for personal injury, wrongful death, and property damage caused by the negligence of a federal employee, acting in the scope of their employment.

A person is generally found to be acting within the scope of their employment if:

• Their conduct was authorized by competent authority (for example, a supervisor or according to a standard operating procedure), and
• Was serving, at least in part, a governmental purpose.

If an individual is injured by the act or omission of an independent contractor retained by the federal government, the government might be held liable for the contractor's negligence. However, for this to happen, the plaintiff must show:

• The government had the authority to control the detailed physical performance of the contractor, and
• The government had the ability to exercise substantial supervision of that contractor's day-to-day activities.

The only type of relief allowed under the FTCA is money damages for a specified amount. It's important to note, however, that you aren't able to recover pre-judgment interest or punitive damages from the government.

Federal law governs the procedure for pursuing a claim against the federal government under the FTCA. However, the substantive law of the state where the negligent act or omission occurred will determine the government's liability. Under the FTCA, an individual must make their claim, in writing, within two years after it becomes apparent a cause of action exists. Submitting a written claim is a requirement to bringing a lawsuit against the federal government. The failure to do so would likely result in the dismissal of a suit against the government.

State Government Immunity Laws

An individual wishing to bring a premises liability claim against a state or municipal government entity will be bound by the state's government immunity laws. Under these laws, many states limit liability for premises defects. Some do this by establishing a relatively low standard of care owed to those on government property.

For example, some state immunity laws require that the government exercise the level of care which a private person would owe a licensee on private property, rather than the "ordinary care" standard that has been adopted by most states for actions between private parties. In addition, some states create different standards of care depending on the type of defect at issue, and whether the injured party paid to use the property.

Several states limit governmental immunity where a case involves a "special defect," which is a premises defect that is more dangerous than most because it presents an unusual and unexpected danger. A special defect is typically a condition that endangers ordinary users of a highway, road, or street, and usually does not have to have been created by the government entity to require the government to act to prevent injuries. For example, if a storm knocks a tree into a roadway, the government might be held liable for injuries resulting from the tree's presence if the government knew, or, in the exercise of reasonable care should have known, about the problem.

Finally, as with claims against the federal government, states have written notice requirements and notice of claim requirements. An injured party must comply with these prior to filing a lawsuit against a government entity. Each state's rules vary as to when these notices must be given and what they must contain. So, it's important to speak with an attorney regarding the law in your state.

Filing a Premises Liability Claim Against the Government? A Lawyer Can Help

Premises liability actions against government entities involve very specific liability rules and procedural requirements. If you're injured on public property, the claims process can be very overwhelming. Get peace of mind today by contacting an experienced premises liability attorney near you.