Suing the Government for an Injury – The Basics

This page discusses the government’s responsibility for injuries caused in accidents. California is home to the highest population of any state in the United States. The number of people working for the government is also extremely large. Unfortunately, this means that sometimes government employees or actions cause injuries to others. This article discusses governmental liability for personal injuries. Suing the government for an injury is not always easy. This is an extremely complicated area, so we recommend you consult with a personal injury attorney if you were seriously injured in any way by a government action.

Public Entity Immunity

Perhaps the greatest complications when suing the government for an injury is navigating through the maze of immunities available to it. For instance, public employees are immune from injuries resulting from “discretionary acts.” What is a discretionary act?

To determine this, courts look at whether an act was operational or policy. If it was a policy decision, then the employee is immune, but if it was operational, they are not. Some examples of operational acts that have led to liability include a public defender’s acts in representing a criminal defendant[1], a police department immediately releasing an accused child molester so as to get others to come forward[2], and a code enforcement officer directing a demolition.[3]

Though the following list is by no means exhaustive, here are a few of the more common public entity immunities:

  • Immunity for injuries from police pursuits
  • Immunity for injuries caused by person resisting arrest
  • Immunity for prosecuting administrative or judicial proceedings (i.e. the District Attorney’s office doing their job)
  • Immunity for not having enough officers to protect
  • Immunity for investigating crimes
  • Immunity for social workers investigating cases
  • Immunity for public discharge of official duty
  • Immunity for school’s related to voluntarily going on field trips

What about Dangerous Conditions of Government Property?

If you are walking through a state courthouse and slip and fall due to a poorly maintained floor CA Government Code 835 covers you. It says that “a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes . . .” certain conditions are including negligence or prior notice of the condition. To be a dangerous condition, it must be a physical condition of the property. So, if a woman is shot to death by her ex-husband in a courthouse hallway such as in Zelig v. County of Los Angeles, the county is not liable because the shooting did not arise from a physical defect in the courthouse.

Lawsuits for these types of accidents are limited, however, to injuries that occur to use of the property in a reasonable foreseeable manner.  For instance, in Biscotti v. Yuba City Unified School District, the court found that a nine-year-old propping his bike against a fence and then balancing on it to pick oranges leading to him being injured by the fence was not reasonably foreseeable. As you can see, suing the government for an injury is not a simple thing.

What if the Government is Specifically in Charge of Preventing the Injury? Are they still Immune?

CA Government Code 815.6 states that “where a public entity is under a mandatory duty by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind. . ..”  Examples of this would include:

  • A police officer, or other mandatory reporter, not reporting known or reasonably suspected instances of child abuse.[4]
  • The Department of Justice not checking mental health records of prospective handgun purchasers, thus leading to a former mental patient committing suicide.[5]
  • Statutes imposing a duty upon a coroner to make a reasonable attempt to locate the family of a dead person.[6]

Suing Government for Injury Immunity | San Diego Personal Injury Lawyer

Who is Responsible for my Injuries?

Vicarious Liability

What if, while working, an governmental employee crashes his car into mine and injures me. Suing the government for an injury should be allowed, right? Generally speaking, yes. Much like the owner of your local corner store may be responsible for their employee, government entities may be liable for injuries caused by their employees.[7]  To the same extent, the government is not liable if the employee falls within one of the many immunities (i.e. police pursuit).

While independent contractors count as employees for this matter, please note that unpaid volunteers are NOT considered employees meaning that the government is not liable for injuries they caused. As for elected officials, the government is only responsible for injuries they cause that arise from or are directly related to their official duties. So, if the chief of police hits you with his car on the drive home, the government is not liable. But if the chief of police wants to relive his glory days on the beat and hits you while patrolling, the city may be liable.

Comparative Fault

In 1978, the California Supreme Court put into place the idea of “pure Comparative Fault” and CA Government Code 815 provides it to public entities. Pure Comparative Fault is the concept that if you suffer an injury the jury may find that your own actions partially caused your injury, and, in turn, lower the amount of compensation you receive by the amount you are responsible for.

How would this come into play when suing the government? If you are walking through a courthouse carelessly and tripped on an uneven tile, the jury may decide that though the courthouse was negligent in their maintenance of the tile, your carelessness contributed 10% to your injury. Thus, your $20,000 recovery will be reduced to $18,000.

Assumption of Risk

Another defense that the government can offer falls under CA Government Code 831.7. This law states that the government is not liable for injuries to people who “[participate] in a hazardous recreational activity, including any person who assists the participant, or to any spectator who knew or reasonably should have known” of the risk and voluntarily stayed. Some common examples of these sorts of activities are swinging from trees, surfing, wading or diving, boating, and contact sports such as basketball, football, soccer, etc. There are some exceptions to this, so be sure to consult a personal injury attorney.

Suing the Government for an Injury – Attorney Consultations

Personal injury lawyers are experienced in suing the government for an injury. If you or someone you know have been injured by a government entity or employee, you should contact a San Diego personal injury lawyer to evaluate your claims and see if a lawsuit is in your best interest. Our San Diego office handles these types of lawsuits and offers free consultations.

Furthermore, if our attorney takes up your case, they will be compensated on a contingency fee. This means that you pay nothing unless your attorney wins your case and compensation is awarded. You and your attorney agree on a percentage before they dig into your case, and your attorney will handle all of the costs of your trial, receiving these back from the settlement.

Footnotes:

[1] Barner v. Leeds (2000) 24 C4th 676, 683, 102 CR2d 97,101

[2] Gillan v. City of San Marino (2007) 147 CA4th 1033, 1051, 5 CR3d 158, 173-174

[3] Ogborn v. City of Lancaster (2002) 101 CA4th 448, 461, 124 CR2d 238, 247

[4] Alejo v. City of Alhambra (1999) 75 CA4th 1180, 1185-1189, 89 CR2d 768, 771-774

[5] Braman v. State of Calif. (1994) 28 CA4th 344, 356-357, 33 CR2d 608, 615-616

[6] Davila v. County of Los Angeles (1996) 50 CA4th 137, 140-142, 57 CR2d 651, 653-655

[7] CA Government Code 815.2

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