Facebook Pixel


Breaking Through Government Immunity

start your free consultation
Home Breaking Through Government Immunity

Breaking Through Government Immunity

Breaking Through Government ImmunityBreaking through government immunity is not only possible, but it also happens every day. Despite wrongdoing by public entities, in the past, local, state, and federal governments were immune to lawsuits. Today, governmental immunity is limited, and there are allowances to take the public entity to task for injuries that befall ordinary citizens. Granted, there are some hurdles that must be overcome, yet an experienced injury attorney can do just that. Breaking through government immunity is done by using a set of rules that have been laid down, called a statutory framework, that must be met. Let’s look at government immunity, how this veil of protection is pierced, and how a personal injury attorney can help.

In this article:

What Is Government Immunity?

When thinking about breaking through government immunity, it is important to understand just what it means. Government immunity originated in Old English common law as sovereign immunity, specifying that the king can do no wrong. While the United States lacks royalty, in the early days of our nation, governmental immunity was seen as a way to keep the government from being immobilized. It protected both state and federal governments and their employees. By the 1940s, this began to change. The first law designed to break through government immunity was the Federal Tort Claims Act, enacted in 1946. It permitted lawsuits to be filed against the federal government, albeit in a limited fashion. The states slowly followed suit, passing laws that would allow breaking through government immunity.

California and Breaking Through Government Immunity 

The California Tort Claims Act (CTCA) upholds in part the idea that a government entity or one of its employees cannot be held responsible for injury to a person. However, the law also provides for a limited number of instances where the government entity may be liable, breaking through government immunity. This allows an injured party to sue the government. However, to do this, the injured party must follow strict rules governing such claims. This is referred to as a statutory framework.

Statutory Framework Inherent in the California Tort Claims Act

There are rules that must be followed when filing a claim against a government entity or employee that deals with time limitations within the procedural process. They are as follows:

  • Claims covering personal injury, personal property, crop damage, or wrongful death must be filed within six months of the start of the accrual period. This is the period from the day the accident happened.
  • All necessary information must be provided. Your injury attorney will be able to help you with this. If the form is not completed correctly, complete with a return address, no action on the claim will be taken.
  • The claim must be sent to the clerk or person in charge of the specific government agency. The claim will be considered provided to the government on the date it is mailed.
  • The government agency has 45 days to respond. If the claim is mailed, this time is extended by five days, providing the person filing the claim has a California address.
  • If the government denies the claim, the claimant has six months to file a lawsuit.
  • If no rejection letter is sent, the claimant has two years to file a lawsuit.
When Are Government Claims Necessary?

Under CTCA, personal injury damage done by a government entity or one of its employees while they were on the job is allowed for some claims and not for others. It is necessary to consult with your lawyer ahead of time when breaking through government immunity. Covered claims include car accidentsslips, and falls, medical negligence, bus accidents, intentional injury, and burns among others. Claims for medical expenses, lost wages and property damage can be filed. Punitive damages, or those meant to punish the wrongdoer, cannot be included in government entity claims.

When Can a Public Entity Be Held Liable?

When breaking through government immunity, there are specific types of cases where a citizen can file a claim against a government agency. These are when:

  • an injury that happens due to a dangerous condition occurs on government property.
  • damage due to negligence on the part of a government employee occurs when he or she was on the job or fulfilling a government function. This often occurs in accidents where the driver is a government employee.
  • an injury due to the negligence of an independent contractor working in a building or property owned by the government entity happens.
  • damages caused by a lack of security in a government facility arise.
What Are Dangerous Conditions?

Under the California Tort Claims Act, a public entity can be considered liable if an injury on government property was caused by a dangerous condition. A dangerous condition is defined as one where a substantial risk of injury exists when the property is used in a way that is reasonably foreseeable or expected. If the property is deteriorated, defective, or physically damaged, its condition is considered to be dangerous. It is assumed that those in charge are aware of its presence or should be aware. However, the risk that the injury could happen should be reasonably foreseeable, giving the public entity ample time to repair it.

Situations That Embody a Dangerous Condition

There are certain hazardous situations that can be described as a dangerous condition. Some of them are:

  • Public property negligence that makes the building or area conducive to assault or other harm to an individual by another person
  • Negligence in the maintenance and supervision of recreational areas such as public swimming pools
  • Negligent control of, maintenance, repair, and design of roads, ramps, and intersections
  • Sidewalks that are cracked or uplifted by tree roots or general maintenance issues
  • Conditions within a public building that can lead to a slip and fall
  • Broken or defective guardrails
  • Lack of signage on the road particularly signs warning of hazardous conditions or stop signs
  • Curves that present danger to a motorist due to negligent design
  • Potholes
  • Poor drainage on roads and public sidewalks
  • Dangerous drop-offs
Describing the Dangerous Condition

When breaking through government immunity, the way in which the dangerous condition is described is important. If not done properly, the case may be thrown out of court on summary judgment. This occurs when one party petitions the court to say that the other party has no case. Another way in which the case may be disputed is when the plaintiff’s risk due to the dangerous condition is considered trivial. It is insufficient to only say there is a dangerous condition. Rather, it is important to elevate the factual existence of the risk to one that would be considered dangerous by augmenting its description with additional factors.

Example of a Dangerous Condition

Let’s say, for example, that a crack in the sidewalk caused a person to fall. An argument by the defense could be made as to the depth of the crack, instilling doubt it would be sufficient to trip a pedestrian. In addition, the possibility that the pedestrian could see the crack and was himself partly responsible might be raised by the defense. In order to defuse this argument, other factors could be noted that could strengthen the plaintiff’s argument. For instance, if the crack was due to the upheaval of tree roots near the sidewalk and leaves were likely to fall on the path, the risk of falling is more likely. In addition, the government entity frequently is responsible for tree root upheaval. By using this rhetoric when writing the complaint, the likelihood the case will proceed is stronger. An experienced personal injury lawyer will be able to frame the complaint to accomplish this.

The video below discusses in length why it’s important to rethink government immunity.

Pitfalls of Breaking Through Government Immunity    

While the California Tort Claims Act allows the public to file a claim against a public entity, there remain some instances where the government can still claim immunity. This is important to remember when describing the dangerous condition and its subsequent liability. Some of the areas where the government claims immunity are:

  • Design immunity: An argument for design immunity allows the government to use a set of facts to mitigate the plaintiff’s case. In it, the government contends the plaintiff is trying to second-guess the government engineers who designed the public entity and take away their capacity to have creative freedom. The defense will also say the design was evaluated by government engineers and deemed to be reasonable before it was built. It is important to obtain the approved plans for the property and check to see if the actual construction followed them. If the engineering experts your personal injury lawyer hires decide that it does not follow the approved plans, the government’s immunity is gone.
  • Reasonable design: The design is not expected to be perfect. It must only be one that appears reasonable. For example, the opinion of a civil engineer who believes the plan is reasonable would be supplying substantial evidence supporting its reasonableness. At this point, even if the plaintiff’s expert finds fault with the plan, it would not be enough to override its reasonableness. Rarely does the government expert express issues with the original plan or its construction.
  • Overturning design immunity: The plaintiff’s lawyers will try to overturn the government’s immunity by showing that, although the design at the time the property was built was reasonable, due to changing physical conditions, the plan is no longer viable. When breaking through government immunity, the lawyer for the plaintiff must show the following:
    • The original plan is no longer safe, and due to changing physical conditions, it has become dangerous or lacks sufficient warnings
    • The government was given appropriate notice about the hazard(s)
    • The government had enough time to obtain the monies and remedy the problem
    • The plan may have been appropriate when it was approved, however, with the passage of time, it presents a real and present danger.
  • Traffic lights and signage: A public entity that does not use traffic signals or signs is not necessarily creating a hazardous condition. This can pose a problem for the plaintiff unless other characteristics are used. For example, let’s say that a pedestrian was killed in a crosswalk lacking traffic signals. This might not have a chance of breaking through government immunity if it is not accompanied by other factors. These could be blind corners or variations in elevation among others that will elevate the non-existence of traffic signals, making it a substantially dangerous condition.
  • Defective traffic signals: As above, the mere absence of traffic signals does not make the roadway, intersection, or crosswalk dangerous. However, if traffic signals are installed and do not work properly, the defects are creating a problem for motorists who rely on their proper function. The confusion this creates for motorists is the crux of breaking through government immunity. But what if the traffic lights are turned off? This makes it the same as if no traffic lights were ever installed and avoids the confusion inherent in the defective lights. In such a case, the government will be immune to associated liability.
  • Crosswalks that lack a traffic signal: This is a bit of a quagmire. In general, the lack of traffic signals does not necessarily create a dangerous condition. However, their absence may create a situation where a pedestrian has a high risk of injury. In this case, additional factors in addition to the lack of traffic signals might be capable of breaking the government’s immunity.
Case Law – Gardner vs. the City of San Jose

In 1961, a 15-year-old girl and two male friends were walking home on Naglee Avenue, a street that was heavily traveled. At one point, they crossed the intersection of Dana and Naglee Avenues without the benefit of proper illumination, crosswalk markings, or stop signs. An underground pedestrian crosswalk was available, but the plaintiffs did not use it. They crossed three abreast with the girl between the two boys. The girl was ahead of them by one step and was struck by a car traveling on Naglee at 20 mph. She suffered a traumatic brain injury and amnesia as a result.

Witnesses to the accident said the lights in the underground pedestrian crosswalk were off, something the city eventually admitted. Other witnesses stated that the lights were often off in the underground thoroughfare. Others testified that there was obscene writing lining the walls of the subway area, and it often smelled of urine. Because of this, the subway itself was considered to be dangerous or unsuitable by many pedestrians.

Since the subway was constructed for pedestrian traffic, attorneys pointed out that this indicated the city believe the streets in the intersection were indeed dangerous. Without street signals, pedestrians were reliant on the rule of right-of-way when they were crossing above ground. In essence, both the drivers and the pedestrians had the right-of-way. The fact that no warning signs, proper illumination, or other traffic signals were used in the intersection became crucial in the case since the underground subway was not maintained properly. By building the subway and failing to maintain it, the city’s lack of maintenance made the street all the more dangerous.

The defense said it was the plaintiff who decided to take the overhead route rather than the subway, although it appeared that she still took care when crossing the intersection. The city, in this case, failed to maintain the subway, making it unsuitable for pedestrian traffic. The jury found in favor of the plaintiff and $90,000 was awarded. Here, the surrounding circumstances were helpful in winning the case.

How a Lawyer Can Help in a Case Against the Government

It is important for an individual when going up against a public entity to follow the statutes as to time and to structure an argument that is strong and does not lend room for the government to claim immunity. A personal injury lawyer seasoned in breaking through government immunity can investigate the accident and work to phrase their arguments to incorporate not just the facts of a dangerous condition but also additional, fortifying circumstances. An injury attorney can review plans for the property and make sure that the structures, roads, or crosswalks conformed to the approved design. The use of engineers to support the findings is also important.

The video below provides more information on what to look for when choosing a personal injury lawyer for your case.

Sacramento Personal Injury Lawyers

I’m Ed Smith, a Sacramento personal injury lawyer. When injured by a dangerous condition on public property, an injury lawyer can provide helpful insight. Call me at (916) 921-6400 in the city and (800) 404-5400 nationwide for free and friendly advice. It might be easier for you to contact me online. Just fill out the convenient contact us form on my website, AutoAccident.com.

We are members of the Million Dollar Advocates Forum and the National Association of Distinguished Counsel.

See our client reviews on Avvo, Google, and Yelp, and our past cases on our Verdicts and Settlements page.

Editor’s Note: This page has been updated for accuracy and relevancy [cha 8.11.20]

Photos Attribution: pixabay.com

:cd cha [cs 2607]

Additional Resources: