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Governmental Negligence

Governmental Negligence

Sometimes fault for a personal injury lies with the government. Governmental liability can be found, for example:

  • When a person walks down a city street and falls in an uncovered manhole.
  • When a person is hit by a US mail truck.
  • When the police negligently cause damage to a person or their property.
  • Various other similar injury situations.

These types of cases can raise some challenging issues due to the involvement of the government in the injury. However, it can still be possible to obtain a remedy in connection with such a claim.

Injuries That Occur in Public Parks

Whether a local government can be held liable for injuries that occur in a park will hinge on the response to the question: are parks public property? A park is considered public property if it is owned by the government. Therefore, a local government can be held liable for injuries that occur in public parks.

Federal, state, and local government entities used to protect themselves against personal injury lawsuits by claiming sovereign immunity. In 1948, however, this privilege was altered when Congress passed the Federal Torts Claims Act (“FTCA”). The FTCA now permits individuals who are injured on federal property or by federal employees to sue the government.

Over time, this Act caused both state and local governments to begin implementing similar rules. As a result, most states allow members of the general public to sue state and local governments for injuries sustained on state property like local public parks.

Additionally, government liability for playground injuries and accidents in public parks may arise in connection to any area of a park, including baseball fields, skateboard parks, and even public pools located on the property in question.

Government Negligence in Public Park Accidents

A person who suffers a public injury at a park can generally only recover damages from a government agency if they can prove the agency was negligent in maintaining the property.

This is partly because many courts have ruled that government agencies have a duty to exercise the same level of care over public property (e.g., parks) that is required of private parties and must warn, remove, or repair dangerous conditions that occur.

Thus, when a government agency fails to maintain and provide safe public parks, it will be liable for any injuries sustained by a member of the general public on those premises.

Proving Personal Injury for a Playground Injury

Plaintiffs in playground accident cases must be able to prove several elements in order to bring a successful lawsuit against a government agency. The elements of proof required for playground accident cases are as follows:

  • The plaintiff must prove that there is a dangerous or unsafe condition located on the property;
  • A government agency either owns or controls the property on which the dangerous or unsafe condition existed;
  • The government agency knows or should have known about the dangerous or unsafe conditions;
  • The government agency had a reasonable amount of time to repair or make the conditions safer, but failed to do so; and
  • The plaintiff was not reckless or careless in causing their own injuries.

It is important to note that the above elements may vary depending on state and local laws.

Supervision at Public Playgrounds

In general, government bodies do not have a duty to provide supervision at a public playground. However, if a government agency chooses to offer supervision services (e.g., aids to watch children), then both the agency and supervisor may be held liable for injuries resulting from negligent conduct.

For instance, if a local agency hired a person whom they knew was not reliable or trustworthy, or if a supervisor failed to look after children left under their care.

One other exception as to when supervision may be required at public playgrounds is when a playground is connected to a public school. If teachers or other staff members are responsible for supervising children during recess and a child gets injured because they failed to do their job properly, then the public school and local government could be held liable depending on the facts of the case.

However, supervision is not always required since state and local laws may limit when a party can sue a public school and/or localities for playground injuries. Thus, injured parties should consult state and local laws before filing a lawsuit.

State Laws Affecting a Local Government's Liability for Injuries in Public Parks

State laws regarding public playground liability and related park injuries can affect how vulnerable a local government is to personal injury lawsuits.

For instance, many states have enacted certain regulations that require local governments to be the ones held responsible for injuries that occur in a local public park due to negligence. This is because most local governments have a duty to keep the general public safe from dangerous conditions in public areas.

This duty may include ensuring that playground equipment is constructed with safe materials, placing public park sites in safe areas (e.g., not near a chemical plant with toxic fumes), and fixing any dangerous conditions (e.g., holes) that arise.

Many states have also enacted statutes that provide guidance on when it is the local government's responsibility, what type of claims can be brought against a local government, and when a local government may be immune from such lawsuits.

Lastly, some states must approve injury claims above a certain amount. Thus, a local personal injury lawsuit may be delayed until the claim is approved at the state level.

Damages Available in a Public Park Injury Lawsuit

Plaintiffs who bring a successful public park injury lawsuit against a local government agency are limited in their recovery. This is because many government agencies place restrictions on the amount of damages that a plaintiff can receive and the types of remedies that are available in such cases.

For example, in a standard private personal injury lawsuit, a plaintiff can usually recover both economic and non-economic damages. If a defendant exhibited gross negligence, the plaintiff may also be awarded punitive damages.

In a personal injury lawsuit against a local government agency, however, a plaintiff will typically only be compensated for economic damages. Some government agencies do not permit plaintiffs to recover non-economic damages (e.g., loss of quality of life, emotional distress, etc.). Also, state and federal statutes generally prohibit recovery of punitive damages awards in cases brought against the government.

Accordingly, plaintiffs to public park injury lawsuits will most likely only receive monetary damages as reimbursement for injury-related expenses, such as:

  • Medical and/or dental treatments;
  • Hospital bills;
  • Property damage;
  • Lost wages;
  • Loss of earning capacity; and
  • Various other out-of-pocket costs incurred as a result of the injury.

A court may also order a local government agency to remove unsafe conditions and make any necessary repairs.

Slip and Fall Injuries

Slip and fall injuries are a specific category of injuries that generally involve some sort of negligence on the part of a property owner. With a slip and fall injury, the person typically slips on a wet or slippery surface, or trips on some sort of object or uneven surface. In cases where the hazard could have been remedied and fixed by the property owner, but they didn't, they may be liable for the person's injury.

Slip and fall liability often occurs in the context of a business establishment, such as a retail store, department store, shop, or other similar place. They are also common in grocery stores, where there are frequently wet or slippery floor areas. However, slip and fall injuries can occur in other areas, such as on property owned by the government. 

Slip and Fall Happening on Government Property

If you trip, slip, or fall on property owned or operated by the government, the government may be responsible for your injuries. Generally, you can recover damages for your injuries if the government was negligent, and the government's negligence caused your injury

There are four important elements of proof to consider in cases of slip and fall injuries on government properties:

  1. The government must have been negligent (that is, they knew or should have known about the danger, but failed to fix it); 
  2. You have the burden of proof in slip and fall cases (that is, it is up to you to prove your case);
  3. You must meet all filing deadlines and notice requirements for the suit; and
  4. There may be limitations or caps on the damages you can recover.

Keep in mind that all of the above must be present in order for you to have a successful claim for a slip and fall injury that occurred on government property. 

Proving Government Negligence in a Slip and Fall Claim

In most slip and fall cases against the government, a person trips, slips, or falls on the government's property because of some sort of hazardous or dangerous condition. Common dangerous conditions include spills, worn or torn spots, uneven flooring, or other slippery or hazardous conditions.

If the government's negligence caused the dangerous condition, an injured person can recover damages for their injuries from the government. The government may be negligent in three situations:

  • The government entity or a government employee caused the dangerous slip and fall condition;
  • The government entity or a government employee knew of the dangerous condition but did nothing to remedy it or fix it; and
  • The government entity or a government employee should have known of the dangerous condition because a “reasonable” person would have discovered and removed or repaired the dangerous condition.

“Burden of Proof” in Slip and Fall Cases

As the injured person, you will generally have the burden of proof in slip and fall cases against the government. This means that you are responsible for showing that the government's negligence caused your injuries. To help your case, you should take pictures of the slip and fall accident scene, your clothes, and any bruises or cuts that you received as soon as possible. 

You should also report the injury incident to the proper government entity immediately and make sure that they fill out a written report. If there are any witnesses, you should obtain their names and contact info such as addresses and phone numbers.

Requirements For Filing Deadlines and Notice Requirements for a Claim Against the Government

The federal government and most states have special procedural rules that you need to follow in slip and fall cases against the government. You usually must file a “notice of claim” with the proper government entity that you think may be responsible for your injury. If you do not file this notice within the designated time period (the filing deadline), which can be as short as 30 days, you may lose the right to file a lawsuit. 

Limitations on the Damages Recovered From a Slip and Fall Claim Against the Government

There are often limitations on the total amount of damages that you can recover from the government. The limits differ depending on which governmental entity you are suing; however, sometimes they can be very low.

Also, there are often specific laws that prevent you from recovering certain types of damages from the government. Generally, you can obtain specific damages, which are costs that can be objectively quantified. 

These typically include medical bills, rehabilitation costs, and lost wages. However, the government is typically immune from “general” damages. These are subjective, unquantifiable damages, such as pain, suffering, and loss of enjoyment of life.

Sovereign Immunity

Traditionally, sovereign immunity provided federal and state governments and their employees nearly absolute protection against suit by a private party. Unless the government expressly consented to suit, private parties had no avenues of relief when bringing a lawsuit.

The legal doctrine behind sovereign immunity was based on the principle that protecting the government from civil claims maintains a stable government.

Over time, there was a shift between the interest of protecting individuals and encouraging governmental responsibility, with increased support for government accountability. As a result, the courts and the legislatures created laws that increasingly allowed for a narrower scope of governmental liability.

Federal Tort Claims Act

In 1946, the Federal Tort Claims Act (FTCA) was passed to provide more avenues for waiver of sovereign immunity and defines the requirements for claims brought against the federal government.

Under the Act, the federal government waives immunity and recognizes liability for the negligence or intentional wrongful acts of its employees, during the course and scope of their employment. The federal government also waives immunity in contract matters where the government is a party to the contract.

Soon after the FTCA was passed, many states followed suit by passing their own tort claims acts, most of which are closely modeled after the FTCA.

Due to these reforms, individuals can now sue state governments and the federal government for personal injury. However, the scope of possible claims is narrow and the rules about when and how the claims are made are specific and must be followed exactly for a claim to be valid.

For example, the FTCA requires that all claims against the government be written claims, be filed within two years of the incident, and damages specifically stated in the claim.

Rules for Filing a Claim under the Federal Tort Claims Act

There are many specific rules that limit whether a private person is eligible to file a claim under the FTCA. The FTCA only creates governmental liability for the negligent or willful conduct of a governmental employee while that employee was acting within the course and scope of their employment.

The FTCA has indeed permitted claims for governmental liability since it was enacted. However, despite this, the act outlines numerous exceptions to suit that could prevent a person from proceeding with a claim.

How Can A Lawyer Help Me With My Government Liability Issue?

Establishing a case for governmental liability is extremely difficult and requires the help of an attorney familiar with the requirements for filing a claim under the FTCA or the applicable state tort act. Additionally, a personal injury lawyer will aid you in navigating the complex and difficult language of the FTCA to ensure your claim will not be barred once filed.

If you are not sure whether you should take legal action, your lawyer will be able to predict the potential outcome of your case and any accompanying damages by assessing the facts of your case, interpreting the relevant laws, and comparing your legal issues to similar case results in your area.