Injured on Public Property | Suing the Government Poses Challenges
by David B. Bobrosky
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:
- The government entity owns or controls the property at issue;
- The subject property was in a dangerous condition at the time of the accident;
- The dangerous condition created a reasonably foreseeable risk of the kind of injury which occurred; and
- The condition was created by a negligent or wrongful act or omission of an employee within the course and scope of employment.
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:
- A claim must be filed against the proper government entity within six months of the accident;
- 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.