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Entries in government liability (2)

Tuesday
Mar272012

Injured on Public Property | Suing the Government Poses Challenges

Injury AttorneyPremises Liability Lawyer  

 

by David B. Bobrosky
(818) 907-3254

 

 

In most of the cases we handle, our clients have been injured by the negligence of someone else. The specific cause of action that is alleged and must be proven is generally, simple negligence.

When you’re injured on public property – it is not so simple. A person cannot sue the government for general negligence. Any government claims must be allowed by a specific statute.

Claims against a government entity can be very difficult, and there are many obstacles for people who do not know how to navigate such waters.

The most common claim we bring against government entities are claims for injuries due to a dangerous condition of public property. California Government Code Section 835 describes the elements a Plaintiff must prove when bringing such a claim:

  1. The government entity owns or controls the property at issue;         
  2. The subject property was in a dangerous condition at the time of the accident;       
  3. The dangerous condition created a reasonably foreseeable risk of the kind of injury which occurred; and
  4. The condition was created by a negligent or wrongful act or omission of an employee within the course and scope of employment.

-OR-

The entity had actual or constructive notice of the condition in a reasonable amount of time to have taken preventive measures.

I will not discuss all of the elements in this blog post. I will, however, discuss some of the most important aspects of handling such claims.

 

Determining Property Ownership – Is it Public or Private?

 

The first element can be a trap for the unwary.

If you are injured because of the condition of any property, we must quickly determine if it was owned or controlled by the government, and if so, which entity.

Sometimes it’s easy to determine if you've been injured on public property. For example, a dangerous curve in a roadway – easy to know it involves a public entity. We'll have to determine if that roadway is the responsibility of the State, the City, or the County.

Other situations may involve a piece of land or a business that seems to be private, but is operated by a government entity. Many times there are no signs letting us know who owns or runs a piece of property.

For example, we once represented a client who tripped and fell because of  uneven pavement in the parking lot of a restaurant. It just so happened that the State of California owned and operated the parking lot. If our client had waited to file a claim, the client may have missed the window for compensation by the responsible party (see the timeframes listed below).

 

Suing the Government – A Two-Step Process

 

Getting to a lawyer soon after a serious injury is imperative when a government claim could be involved, because:             

  1. A claim must be filed against the proper government entity within six months of the accident;
  2. The government has 45 days to respond to a claim. If the responsible entity denies the claim (and they almost always do), generally a lawsuit must be filed within 6 months of the written denial of the claim.

There are exceptions to these basic rules, and other time frames that might apply, but these are the general rules that must be followed. Courts are very strict when it comes to enforcing these statutory requirements.

 

The Government Claim - Proving the Dangerous Condition

 

Assuming you follow the proper procedures and have successfully initiated litigation, you must now prove your claim.

California Government Code Section 830(a) defines a “dangerous condition” as:

a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.

One category of dangerous conditions is public property or improvements that are damaged or deteriorated. Examples can include:

  • A sidewalk that has become damaged resulting in uneven or broken pavement;
  • A stop sign that is covered by overhanging trees;
  • A roadway where lane markings have deteriorated, exposing travelers to potential accidents.

Another dangerous condition includes bad design or planning, such as:

  • A dangerous curve that is not easily recognized or navigated by drivers;
  • Turn lanes in areas where turning vehicles and oncoming drivers do not see each other in a sufficient amount of time to allow for safe decisions when turning;
  • Not installing crosswalks where they are obviously needed.

All of these conditions are examples of conditions that can create substantial risk of injuries to reasonably careful users.

Remember though, that government entities have a multitude of immunities and defenses available to them to fight these claims. This is why it is so important to hire an experienced personal injury lawyer if you have a government claim. A lawyer not experienced in handling government claims can easily lose them before they even get to trial.

David B. Bobrosky is an Encino Injury Attorney at our Firm. If you have questions about a personal injury you suffered, contact him via e-mail: dbobrosky@lewitthackman.com.

 
Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

 

Wednesday
Feb012012

Train Accident Tragedy: Dangerous Road & Railway Crossing Made Safer by Litigation

Injury AttorneyTrain Accident Lawyer

 

by David B. Bobrosky
(818) 907-3254

Many times dangerous conditions or negligent conduct are not changed until someone is injured and a lawsuit is filed.  

As part of a continuing series of articles on the Lewitt Hackman Personal Injury Blog, Lewitt Hackman attorneys will identify dangerous conditions or conduct from cases they have handled in the past, and how the conditions or conduct was changed as a result of the lawsuit. Below is such a case. 

Train Accident Attorney

A Dangerous Road & Railway Crossing

 

Our client was on the way home from work to have dinner with his wife, as he had done for the past 25 years. He traveled west down an old road that he had driven many times before.

As he traveled, he approached a railroad crossing from the east. When he approached the railroad crossing, another driver approached the crossing from the west. The intersection where the tracks cross the road is an “S” curve, with the railroad tracks in the middle of the “S.”  Unfortunately, there were no edge lines, lane lines, botts dots, or other signs guiding drivers through the intersection to safely follow the curve and stay in their own lane. 

The other driver, based on all accounts, failed to identify and negotiate the “S” curve and his car crossed into our client’s lane and struck his car head on. Our client’s car was stopped on the tracks, and severely damaged. 

Shortly after the collision, the signals started going off and the crossing arms came down – a train was coming. Despite a severely fractured leg, our client exited his vehicle through his window. Tragically, he was not able to completely escape and he was killed when the train plowed into him and his car. He was survived by a wonderful wife, and three great adult children.

When hired by his family, our office immediately investigated the scene of the accident. During that investigation, we determined that the accident was mostly caused by the dangerous condition of the railroad crossing. It was difficult for a driver to discern the curve, causing the driver to cross over into the other lane of traffic. Because this was not a heavily travelled area, there were no reports of other significant accidents. 

You can see a photo of the railroad crossing shot from a plane we hired to fly above and take photographs immediately after the accident in the image above. As you can see there are no lane lines guiding drivers through the crossing. 

A short time after the accident, the City painted lane lines as shown in this follow-up photograph, below right.Los Angeles Accident Injury Lawyers Making a Difference

As can be seen from the photographs, just the painting of the lane lines makes the curve significantly safer – and possibly would have prevented this tragic accident.

As part of our case, we hired traffic engineers to prepare renderings of what a safe crossing should look like, with additional lines and warning signs before and throughout the curve. After our case was settled, the City essentially made all of the changes suggested by our engineers. 

As with every case we handle, we attempt to obtain a fair recovery to compensate our clients for the injuries suffered as the result of another’s negligence. Equally important, is that our efforts result in dangerous conditions or conduct being changed so similar accidents do not happen again. We achieved both goals in this case. 

David B. Bobrosky is a Los Angeles Personal Injury Attorney experienced in train accidents and dangerous roadway cases. Contact him via e-mail: dbobrosky@lewitthackman.com, or by phone: 818.990.2120.

 

 
Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

 

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