Government Liability

January 3, 2017

How Government Design Immunity Can Eliminate an Indiana Personal Injury Plaintiff’s Claim to Recovery

by Parr Richey Frandsen Patterson Kruse LLP

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.

Design 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.

December 19, 2016

Plaintiff’s Parking Lot Slip-and-Fall Case Fails to Survive Summary Judgment

by Parr Richey Frandsen Patterson Kruse LLP

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.

The 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.

July 27, 2016

Recreational Use Statute Prevents Paralyzed Accident Victim from Seeking Compensation

by Parr Richey Frandsen Patterson Kruse LLP

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.

Roy 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.

July 6, 2016

Government Immunity Is Not Without Its Limits

by Parr Richey Frandsen Patterson Kruse LLP

State, local, and federal governments, as well as related government agencies, enjoy a general blanket of immunity from personal injury lawsuits. This means that in many cases filed against a government agency or employee, the injured party will not be permitted to recover compensation for their injuries because the named defendant is immune from liability.

However, government liability does have its limits. Importantly, immunity will only attach when the alleged act of negligence is a discretionary one. This means that if the government had a choice in how to conduct the actions in which it is alleged to have been negligent, immunity will attach. Ministerial acts, however, are not covered under the blanket protection of immunity, and governments may be held liable when an allegedly negligent action or inaction was mandated by some law, rule, or regulation. This is exactly what happened in a recent case in front of the Mississippi Supreme Court.

Mississippi Transportation Commission v. Adams: The Facts

Adams was riding his motorcycle on a Mississippi highway that was maintained by the Mississippi Transportation Commission. As he was riding along, Adams accidentally entered into a construction zone. As he attempted to exit the zone safely, he struck an uneven part of the pavement and lost control, falling off the motorcycle. Tragically, two passing cars struck him in the wake of his fall, and he was pronounced dead at the scene.

June 20, 2016

“Assumption of the Risk Doctrine” Prevents Wrongful Death Case from Proceeding

by Parr Richey Frandsen Patterson Kruse LLP

Earlier this month, an appellate court in California issued a written opinion holding that a wrongful death lawsuit filed by the father of a young man killed while skateboarding was properly dismissed below because the young boy assumed the risk of the dangerous activity in which he was engaging when he suffered his fatal injury. In the case, Bertsch v. Mammoth Community Water District, the court’s decision will prevent the boy’s father from receiving compensation for the loss of his son.

The Facts of the Case

The plaintiff and his two sons were staying at a friend’s condo in Mammoth County, California. The two boys were skateboarding around the neighborhood before meeting up with their father to go rock climbing. Along the way, the boys pushed their way up a hill so that they could enjoy the long and fast ride down. However, on the way down the hill, one of the boys’ boards hit a lip surrounding a manhole cover, and he was thrown from the board. He was not wearing a helmet. When he struck the ground, he hit his head, causing him to suffer a traumatic brain injury. He later died from the injuries he sustained.

The boys’ father filed a lawsuit against several parties, including the local government and the water company that installed the manhole cover, seeking compensation for the loss of his son. The father claimed that the manhole cover was dangerous and that it was negligent for the government to fail to fix the hazard.

April 18, 2016

Indiana Supreme Court Finds in Favor of Premises Liability Plaintiff against Municipality

by Parr Richey Frandsen Patterson Kruse LLP

Earlier this month, the Indiana Supreme Court issued a written opinion in a premises liability case involving a woman who broke her leg while crossing a street. In the case, City of Beech Grove v. Beloat, the court determined that the city was not entitled to governmental immunity because the act of maintaining the road was not “discretionary,” as defined by the Indiana Tort Claims Act.

The Facts of the Case

The plaintiff was walking from her home in the City of Beech Grove to the library, when she briefly stepped out of the crosswalk to avoid a parked car. As she did so, she heard a snap and realized that her foot was caught in a hole in the pavement. She remained there until two bystanders helped her out. When she was taken to the hospital a short time later, it was discovered that she had suffered a broken leg. She filed a premises liability lawsuit against the city.

In response, the city claimed that it was entitled to immunity from the lawsuit based on the Indiana Tort Claims Act, which grants immunity to the government and government employees when they are performing a discretionary function. The trial court denied the city’s motion to dismiss the case on this ground, and the city appealed.

January 27, 2016

University Protected by Immunity After Student Is Killed on Bike Path

by Parr Richey Frandsen Patterson Kruse LLP

Sometimes government entities such as public universities are protected from lawsuits due to immunity. In Burgueno v. Regents of the Univ. of Cal., a court found that a university was protected by immunity when a student was killed on a bike path that ran through the school. According to the court’s written opinion, the University of California, Santa Cruz student was living in an off-campus apartment and commuted to school on his bike. He was killed in a bicycle accident on the Great Meadow Bikeway, a paved bike path that ran through part of the school’s campus. The student’s family sued the school after his death, alleging that the school was liable because the path was dangerous. There had been a number of bicycle accidents on the path prior to the student’s death, and the family sued based on a dangerous condition of public property and wrongful death.

However, the trial court found that the claim was barred because the school was protected by immunity. A state code precluded governmental liability for injuries caused by the condition of any trail that provided access to recreational or scenic areas. The purpose of the law was to allow public entities to open their property for public recreational use. The idea was that if the public entities could be sued for poor road conditions, most paths would probably close.

The court found that the law applied to the Great Meadow Bikeway path because it was a path that provided access to recreational or scenic areas. It stated that even though the trail may have been used for both recreational and non-recreational purposes, the school was still protected by immunity. In this case, since the school was a public university, it had absolute immunity from any claims arising from injuries due to poor conditions on the path.

November 16, 2015

Recreational Use Statute Can Act to Limit Government’s Liability for Negligently Maintained Areas

by Parr Richey Frandsen Patterson Kruse LLP

Earlier this month, an appellate court determined that a woman who injured herself while on a government-owned playground was not entitled to compensation under a premises liability theory. In ruling against the plaintiff, the court cited the state’s “recreational use statute.”

The Facts of the Case

According to the court’s written opinion, the plaintiff was a young girl who injured herself while playing on a wooden jungle gym that was located in a state park. According to the plaintiff’s mother, the jungle gym “had deteriorated to the point where the wood was frayed, split and slivered.” After the incident, the woman contacted the Parks and Recreation Department and complained of the condition of the jungle gym and informed them of her daughter’s injuries. She soon afterward filed suit against the government as the owner and operator of the park.

The judge hearing the case determined that, under the state’s recreational use statute, the general rule is that the government cannot be held liable for injuries that occur on its land when the user is engaged in recreational activity. The court noted, however, that the rule is not absolute, and if the injured party can show that there was a “malicious or willful failure” to warn of a dangerous condition, liability may arise.