Articles Posted in Government Liability

Indiana landowners have a duty to make sure that their property is safe for the people whom they allow to enter and remain on their property. When a landowner fails to take adequate precautions to ensure a safe area, the injured party can generally seek compensation for their injuries through an Indiana premises liability lawsuit.

Rope SwingIndiana’s recreational use statute, however, limits a landowner’s liability in some situations. Indiana Code, Title 14, Article 22, Chapter 10, Section 14-22-10-2-5 outlines the state’s recreational use statute. Essentially, a landowner who allows others to use his property at no cost for recreational purposes cannot be held liable for any injuries that are caused as a result of the use of their land. Of course, this does not apply if the landowner acts maliciously or willfully causes an injury to someone using their land. A recent case illustrates how a state’s recreational use statute prevented the family of a young boy from recovering compensation for their son’s injuries.

The Facts of the Case

The plaintiff was the father of a boy who was injured while playing on a rope swing adjacent to a government-owned lake. The child was enjoying the rope swing with several friends, and they would take turns swinging from a nearby tree into the water. As the person swinging was in the air, the other children would try to slap his feet before he splashed into the water. When the plaintiff’s friend was swinging, the plaintiff attempted to slap his friend’s feet. However, the two boys collided, resulting in the plaintiff being seriously injured.

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When someone intends on filing an Indiana wrongful death lawsuit, a thorough investigation must be conducted to determine all of the proper parties that should be named in the lawsuit. In situations in which a government entity is discovered to be one of the potential defendants, Indiana law requires that certain additional steps be taken when naming that entity as a defendant.

RollercoasterUnder the Indiana Tort Claims Against Governmental Entities and Public Employees Act, plaintiffs intending on filing lawsuits filed against government entities must first provide notice of the claim to the government entity. This notice is due either 180 or 270 days after the incident. If a party fails to provide the government entity with notice of the claim and proceeds to file the claim, the court will dismiss the plaintiff’s case.

A recent wrongful death case illustrates the importance of conducting a thorough investigation.

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As a general rule, government entities cannot be held liable for Indiana accidents under the doctrine of sovereign immunity. The concept of sovereign immunity has been around since the formation of our country. Essentially, sovereign immunity provides total immunity to government entities and employees for their negligent acts. However, over the years, states have enacted various laws that create exceptions to this general rule, permitting some lawsuits against the government.

Manhole CoversIndiana’s version of this law is called the “Tort Claims Against Governmental Entities and Public Employees Act.” Under the Act, sovereign immunity is waived in some situations in which a government employee’s or entity’s negligent action caused someone’s injuries. However, the Act specifically excludes certain types of lawsuits, including accidents involving discretionary acts, the condition of unpaved roads and trails, and most weather-related accidents.

That being said, the Act permits lawsuits against the government for some common accidents, including car accidents caused by government employees and slip-and-fall accidents occurring on government property. Even when sovereign immunity is waived under the Act, however, the accident victim must comply with a strict set of rules in order for their case to be heard and considered. A recent case illustrates the difficulties one accident victim had when he failed to comply with the notice requirements under a similar act.

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Earlier this month, an appellate court in Alabama issued a written opinion in a premises liability case that was brought by an accident victim against a local city that owned and operated the park where the plaintiff’s injury occurred. The case presented the court with the opportunity to discuss recreational-use immunity and what a plaintiff must show to overcome this immunity. Ultimately, the court concluded that the plaintiff failed to establish a crucial element of her claim in that she did not show that the city had actual knowledge of the hazard that caused her fall.

FireworksThe Facts of the Case

The plaintiff was visiting a park owned and operated by the defendant city. The plaintiff arrived at the park on July 4, in the morning hours. After parking her vehicle, the plaintiff made her way around a set of vertical poles that established the parking area without any problem. However, hours later, when the plaintiff made her way back to her vehicle, she tripped and fell on a diagonal cross-bar that connected two of the vertical poles. Evidence presented to the court suggested that while the area was lit by overhead street lights, the general condition of the lighting was “poor.”

The plaintiff filed a premises liability lawsuit against the city, claiming that the lack of lighting combined with the condition of the vertical poles created a dangerous hazard. In response to the lawsuit, the city had a maintenance supervisor testify that the city had no actual knowledge of the dangerous condition and that there had never been a similar accident reported nor any report of a dangerous condition.

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Earlier this month, an appellate court in California issued a written opinion in a car accident case that was brought by a woman who was run over by a truck as she was on location fighting a wildfire. The court ultimately determined that since the woman’s injuries were caused in the course of her employment as a firefighter, she was not able to pursue a case against the driver of the vehicle that ran her over.

FiremenThe Facts of the Case

The plaintiff was a firefighter who was called out to assist in fighting a particularly serious wildfire. The team of firefighters had set up a base camp in the middle of a race track, where there were restrooms and showers. Most of the firefighters camped a short distance from the racetrack. However, by the time the plaintiff arrived at the camp, all of the sites were taken, and she had to search for another place to sleep.

The plaintiff sought permission from her supervisor to set up camp in the middle of the race track, near where base camp was set up. She was granted permission and set up camp. However, on the second night staying there, a truck that was driven by a government contractor ran over the plaintiff as she was sleeping. She sustained serious injuries and filed a personal injury lawsuit against the truck’s driver and several other government entities.

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An axiomatic law of appellate procedure is that an appellate court can only rule on an issue on which the trial court had the opportunity to rule below. Thus, any argument that a party fails to make during a trial will considered to be waived for the purpose of appellate review. This rule is very important for personal injury plaintiffs to keep in mind, since it means that a thorough investigation must be conducted and the case properly prepared prior to trial to ensure that all available evidence is gathered and effectively presented to the court.

Baseball DiamondA recent opinion in a slip-and-fall case illustrates how a plaintiff’s failure to adequately gather all of the evidence and present it to the trial court prevented that party from using the evidence on appeal.

The Facts of the Case

The plaintiffs were the parents of a young boy who was injured while playing a game of baseball in a park that was owned by the defendant city. At the pre-trial motion for summary judgment, the city argued that it was entitled to immunity under the state’s recreational use statute. The plaintiffs issued a very broad objection to the applicability of the recreational use statute but did not offer any argument as to why the application of the statute was not appropriate. The judge granted summary judgment in favor of the defendant, and the plaintiffs appealed.

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Late this month, an appellate court in Ohio issued an interesting decision involving the limits of a local government’s immunity from personal injury lawsuits involving claims that the government failed to maintain a public road. In the case, Bibler v. Stevenson, the court determined that a local government was not entitled to immunity when it allowed a stop sign to become overgrown with brush, resulting in a motorist running the stop sign and striking the plaintiff.

ForestThe Facts of the Case

Back in 2011, Bibler was driving through an intersection when he was struck by another motorist who had run a stop sign. When asked by police what happened, the other motorist explained that she had not seen the stop sign. The officer then investigated the motorist’s claim and agreed that the stop sign was obstructed by overgrown foliage.

Bibler filed a lawsuit against the other driver as well as the city where the intersection was located. Bibler eventually settled with the other driver out of court, and the case against the city proceeded toward trial. However, the trial judge dismissed the case against the city, explaining that the city was presumptively entitled to government immunity, and Bibler failed to establish an exception. Bibler appealed.

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Government immunity is a concept that is present in almost all personal injury cases that name a government entity or employee as a defendant. Even in cases in which the plaintiff ultimately recovers compensation for their injuries after settlement negotiations or a trial, it is likely that the plaintiff had to overcome the issue of government immunity at some point in the lawsuit. Thus, the issue of government immunity is critical for all would-be plaintiffs to understand before filing a lawsuit against a state, local, or federal government agency.

IntersectionDesign Immunity in Indiana

One type of government immunity involves a government’s design of highways, roads, and intersections. This is called design immunity. Design immunity does not cover a government’s failure to properly maintain a road, but instead it covers a government’s decisions on how to construct a road.

In Indiana, governments are generally entitled to immunity regarding their discretionary functions. Arguably, many road construction projects will be deemed discretionary by the courts, eliminating a government’s liability. Regardless, governments are entitled to immunity from any lawsuit stemming from the design of a highway, road, or intersection if the claim arises more than 20 years after the project was constructed. A recent case illustrates how a court may apply design immunity to extinguish an accident victim’s right to recovery.

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Earlier this month, a federal appellate court issued a written opinion in a premises liability case brought by a woman who slipped and fell on some loose stones outside a home improvement store. In the case, Piotrowski v. Menard, the court ultimately held that the plaintiff’s bare-bones assertion that the stones’ presence could have been due to the negligence of a store employee was insufficient to survive summary judgement, and the case was dismissed.

GravelThe Facts of the Case

Piotrowski was shopping at the defendant’s home improvement store with her husband when she slipped and fell outside the store’s entrance, fracturing her elbow. After she got up from her fall, she noticed that two small stones had caused her to lose her balance. She filed a premises liability lawsuit against the store, claiming that they were negligent in either creating the dangerous condition (the loose stones) or failing to remedy a known dangerous condition.

At the summary judgment proceeding, evidence was presented that not far from where Piotrowski fell, there was a planter filled with river rock. A store manager testified that store employees would occasionally have to refill the planter with river rock because the level of rock in the planter would decrease over time. One witness testified that children would play in the planter and occasionally inadvertently track the small rocks out with them as they left the planter.

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Earlier this month, an appellate court in Rhode Island issued an instructive opinion regarding that state’s recreational use statute and how the statute may be used by defendants to avoid liability in a premises liability case. The case is also instructive to potential premises liability plaintiffs, since it shows which facts must be pleaded and proven in order for the case to survive a summary judgment challenge by the defense.

Sunset on LakeRoy v. State:  The Facts of the Case

Roy was with some friends at a state-run park. The park had a medium-sized pond in which people routinely swam, despite there being signs that swimming was prohibited. In fact, on some days, the government agency in charge of the park would staff the pond with lifeguards and allow swimming. There were, however, a number of “no diving” signs placed around the pond. Generally, the prohibition on diving was enforced, but there was an old diving platform that was still left from previous years when diving was permitted.

On the day in question, Roy got out of his parked car, ran up to the edge of the pond, and quickly inspected it before diving in. Roy later testified that the pond looked deep enough and that if it hadn’t looked safe to dive in, he would not have done it. When Roy did dive into the pond, his head struck the bottom, and he was paralyzed as a result. He later filed a lawsuit against the state agency in charge of the park’s maintenance.

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