Articles Posted in Government Liability

The Federal Tort Claims Act (FTCA) is a statute designed to allow private individuals a way to hold the government and their employees responsible for tortious acts that they commit. Before the passage of the FTCA, the government was immune from lawsuits based on the theory of sovereign immunity. However, the FTCA allows Indiana injury victims to hold the federal government responsible for their negligent and wrongful acts. However, the FTCA has 13 exceptions to the waiver of immunity, including the often-cited “discretionary function” exception.

The discretionary function exception bars lawsuits based upon claims that arose based on a government actor’s discretionary function or duty. Generally, the court will engage in a two-step inquiry when the government cites this exception. First, the court will look at whether the actions involve an element of judgment or choice, as opposed to a ministerial duty. If an element of choice or judgment exists, then the court will look to whether the judgment was the kind of decision that the exception was designed to shield.

For example, recently, two families sued the United States government under the FTCA when a tree limb fell, killing their sons at a national park. The families filed wrongful death claims against the government, arguing that the park safety officials knew or should have known about the danger of the tree and failed to warn visitors of the threat. The government successfully moved to dismiss the claims, stating that evaluating and responding to the hazard was a discretionary function which was entitled to immunity.

Indiana’s Supreme Court recently decided that a high school could not be held liable for failing to supervise a student after the student left without permission. The 16-year-old student left the school grounds of an Indianapolis high school without permission and was subsequently shot and killed. His estate filed a lawsuit against the school claiming that it was negligent in failing to monitor and supervise the student. The school argued the student was contributorily negligent and thus was not entitled to compensation from the school. The trial court granted summary judgment in favor of the defendants.

Under Indiana’s Comparative Fault Act, if a claimant is partially at fault for his injuries, he can still recover damages, although the award will be reduced by the percentage the claimant is found to be at fault. However, the Comparative Fault Act does not apply in cases against governmental entities. In cases against governmental entities, Indiana’s contributory negligence doctrine applies. Under the contributory negligence doctrine, a plaintiff cannot recover if the plaintiff is negligent and the negligence is even slightly the cause of the plaintiff’s injuries.

The court explained that absent special circumstances, children over the age of 14 are able to exercise reasonable care that an ordinary person would exercise in similar circumstances. It also stated that a plaintiff is contributorily negligence if the plaintiff’s actions fell below the standard necessary for his own protection and safety.

Dangerous roads are one of the most often overlooked causes of Indiana car accidents. In part, road design and maintenance may be overlooked because it can be difficult to successfully pursue an Indiana personal injury claim based on the dangerous design or negligent maintenance of a road. However, the possibility of encountering an obstacle should not discourage an accident victim from discussing their case with an attorney.

There are numerous ways in which a road might be dangerous. The most common defects found on Indiana roads are surface defects and planning defects. Surface defects include cracking pavement, potholes, and eroded shoulders. These are often results of poorly maintained roads. Planning defects have to do with the layout of the road itself. Common examples of planning defects are blind corners, confusing intersections, and poorly lit roads. Under Indiana law, it is possible for an accident victim to recover based on either surface defects or planning defects. However, issues of governmental immunity may be a hurdle that accident victims must overcome. A recent case discusses governmental immunity in the context of a car accident that was allegedly caused by a defectively designed road.

According to the court’s opinion, the plaintiff was heading southbound on a motorcycle when a vehicle attempted to make a left turn in front of him. The plaintiff was unable to avoid the collision and crashed into the passenger-side door of the motorist’s vehicle. The plaintiff filed a personal injury lawsuit against the state government, arguing that the intersection was dangerous and that the government failed to warn motorists of the dangerous intersection.

As we frequently discuss in this blog, Indiana landowners owe a duty of care to those whom they allow to enter their property. When a landowner fails to live up to this duty, they may be liable for any injuries caused on their property through an Indiana premises liability lawsuit. The extent of any duty that is owed to a guest depends primarily on the reason for the guest’s visit. Thus, determining the status of a visitor is the first step in an Indiana premises liability lawsuit.

As a general matter, customers of a business or others who are on a landowner’s property for commercial purposes are owed a greater duty than social guests who are invited upon the premises. Finally, trespassers – or those who enter a property without the owner’s permission – are owed the least significant duty. Generally, a landowner must only refrain from willfully causing injuries to trespassers. However, under the state’s recreational use statute, there are other situations in which a landowner may not be liable for a guest’s injuries.

The Indiana recreational use statute limits a landowner’s liability when the land has been made available for public recreational use. This includes activities such as swimming, camping, hiking, or sightseeing. There are also limitations on a landowner’s liability if they allow others to hunt or fish on their property. To qualify for the statute’s protections, however, the landowner cannot charge the visitor a fee for the use of their property.

Earlier this month, the Ninth Circuit Federal Court of Appeals issued a written opinion in a Federal Tort Claims Act (FTCA) case that may impact Indiana personal injury and wrongful death cases involving minor victims. The case required the court to determine if a claim under the FTCA is automatically tolled while the plaintiff is a minor. Ultimately, the court noted that the FTCA contained no explicit provision calling for minority tolling, and thus held that FTCA claims were not subject to minority tolling.

Statutes of Limitations

Generally, all personal injury claims must be brought within a certain period as outlined in the relevant statute of limitations. However, there are some situations in which a statute of limitations is “tolled” or delayed. For example, in some cases, a statute of limitations will be tolled during the period in which the plaintiff is a minor. Another common example of when tolling may occur is when a plaintiff does not discover their injury until a later date

The Facts of the Case

According to the court’s opinion, the plaintiff was nine years old when his father was killed in a car accident. After the accident, the plaintiff’s mother filed an administrative claim with the Federal Highway Administration (FWA) seeking compensation on behalf of her son for the loss of his father. However, it was not until six years later that the plaintiff’s mother filed a lawsuit in federal district court on behalf of her son. Once the plaintiff turned 18, he was substituted for his mother as plaintiff.

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Recently, a state appellate court issued an opinion in a personal injury case involving a car accident that was allegedly caused by a police officer’s negligence. The case presented the court with the opportunity to discuss whether the city that employed the officer was entitled to governmental immunity. Ultimately, the court concluded that because the officer failed to drive with “due regard for the safety of others,” immunity did not apply.

The case presents an important issue for Indiana car accident victims who have been injured in an accident involving a government official or employee because similar government immunity laws apply in Indiana.

The Facts of the Case

According to the court’s recitation of the facts, the plaintiff was injured when the defendant police officer made a left turn against a red traffic signal while responding to an emergency. The plaintiff testified that the police vehicle’s emergency lights were on, but that the sirens were not engaged. The accident investigator’s report indicated that the plaintiff was no speeding at the time of the collision, and it would have been impossible for her to see the police vehicle approaching due to the slope of the intersection roads.

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Recently, a state appellate court issued a written opinion in a personal injury case involving a plaintiff’s claim against the city that employed a police officer who struck her car while responding to an emergency call. The case presents important issues that frequently arise in Indiana personal injury cases that are brought against government employees or entities under the Indiana Tort Claims Act.

The Facts of the Case

A police officer was responding to an emergency call at a hotel for a person who was unconscious. The officer decided to cut through a parking lot that was adjacent to the hotel’s parking lot. As the officer was approaching the hotel, he pulled forward into traffic slightly so that he could see the hotel from his location. As he did so, the plaintiff’s vehicle clipped the police vehicle’s front bumper.

The plaintiff filed a personal injury lawsuit against the officer as well as the city that employed him. Specifically, the plaintiff claimed that the officer was negligent in the operation of his vehicle, and that the city was vicariously liable for the actions of the officer, which were conducted while in the course of his employment. The plaintiff also claimed the city was negligent in hiring the officer.

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The Federal Tort Claims Act (FTCA) provides a means for citizens to file a personal injury lawsuit against the United States government. And while the substantive laws governing Indiana car accident cases do not change depending on the defendants named in the case, there may be additional procedural requirements in cases that are filed against a government defendant.One of the most important differences when a case is filed against a government defendant is the notice and timing requirements. In a recent case, a federal appellate court determined that a plaintiff’s claim against the United States Post Office (USPS) was time-barred, based on her failure to comply with the timing requirements of the FTCA.

The Facts of the Case

The plaintiff was injured when a USPS vehicle struck her car. Two weeks after the accident, the plaintiff filed an administrative claim with the USPS, seeking compensation for her injuries. Seven months later, the USPS responded, denying the plaintiff’s claim.

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As a general matter, the state and local governments enjoy immunity from personal injury lawsuits. However, each state has a tort claims act that statutorily waives immunity in some situations. Each state’s tort claims act is a little different, with most states outlining the situations in which immunity is waived. Indiana’s Tort Claims Act, however, is different in that it is framed in terms of which actions are immune from liability.

One area in which governments are entitled to immunity from Indiana personal injury lawsuits is in the design of roadways. Under Indiana Code section 34-13-3-3, government entities are immune from lawsuits based on the design of roadways when the claim arises 20 years or more after the roadway had been constructed or substantially redesigned. The statute does not apply to the government’s ongoing requirement to maintain roadways in a safe condition.

A recent case illustrates how courts view cases brought under the various tort claims acts.

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Earlier this month, a state appellate court issued a written opinion in a personal injury case requiring the court to interpret and apply the state’s recreational use statute. Ultimately, the court interpreted the statute as written to confer immunity to the defendant landowner, so the plaintiff’s case was dismissed. While the case was brought in a different state, it discusses concepts that may be relevant to Indiana premises liability claim.

Recreational Use Statutes

Under Indiana Code section 14-22-10-2-5, landowners who open up their land so that the general public can enjoy various recreational activities are not liable if someone engaging in a recreational activity is hurt while on the landowner’s property. However, the statute only confers immunity if the landowner does not require payment for the use of their land. Moreover, if the landowner’s conduct is malicious or constitutes an illegal act, immunity will not attach.

The Facts of the Case

The plaintiffs in the case mentioned above were the parents of a young girl who fell through the bleachers at a youth football game. In order to get into the game, the plaintiffs were required to pay the $2 admission fee; however, there was no fee for children under six years old. As a result of her fall, the plaintiffs’ daughter was seriously injured, and the plaintiffs filed a premises liability lawsuit against the city that owned and operated the stadium.

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