Personal Injury Claims against the Government
Under early British common law, the antecedent to American
legal principles, lawsuits against the government were not permitted. At the
time, all law was the purview of the sovereign and no monarch was interested in
allowing themself to be sued. As more democratic systems of government
developed, the argument evolved. In early American law, claims against the
government were bared on the ground that the government was essentially
composed of the people and it seemed antithetical to principals of collective
action to allow the negligence of a single government employee to drain the
This governmental immunity from liability was first waived
in California with the passage of limited express exceptions in 1923. During
the years that followed, common law developments and judicial decisions
somewhat expanded the short list of exceptions, particularly with regard to
dangerous properties. The result was a complex and uncertain collection of exceptions
and exceptions to exceptions that produced varying outcomes even among similar
Tort Claims Act
In 1963 the California legislature passed the California
Tort Claims Act, now codified in Government
Code 815 et. seq., to level the playing field. The comprehensive law
eliminated most of the previous body of law with regard to governmental
immunity and replaced it with a unified set of requirements that every
potential plaintiff must follow before suing a public entity. Principal among
the new regulations was a requirement that an injured party file an official
claim with the entity in question no longer than six months after learning of
the injury. Only after an agency denied that claim, either in whole or in part,
could a person continue with a traditional lawsuit against the government.
What kind of lawsuits qualify?
The Tort Claims Act also specifically defined the
circumstances under which a governmental entity could be held liable for
personal injury. Specifically, the following five elements must generally be
The injury must occur on public property
The property must be dangerous
The risk of injury must be reasonably foreseeable
The dangerous condition must have been created
by the negligence of a government employee acting within the scope of
employment or the agency must have had reasonable notice of the danger and time
to correct it.
In addition, a plaintiff must be able to prove that the
dangerous condition was the proximate cause of the injury; a legal term-of-art
that essentially means the injury must be an expected and normal result of the
Suing government employees?
Under the law, government employees are generally liable for
their actions in the same way as are private citizens. However, the government
will step in to cover the damages of a liable employee if the plaintiff’s
injury resulted from actions the employee took while acting in the scope of
employment. However, there are a number of specific immunities and other
requirements that apply to certain situations so careful investigation of the
underlying circumstances is imperative.
Filing a claim
In order to bring a lawsuit against the government under the
Tort Claims Act, the injured person must file a sufficient claim with the
public agency in question within six months of learning of the injury. This
requirement is somewhat complex in that claims must be legally sufficient and
properly filed. However, public agencies are required to simplify the process
somewhat by maintaining a public notice regarding how to file a claim against
that agency. In addition, agencies must respond to claims within certain
specific time frames and their failure to either post a sufficient notice or
respond timely to claims may waive their immunity under the law. This area of the law is complex and care must
be taken when preparing and filing claims.
Childhood Sexual Abuse
Under a recent change to the Tort Claims Act, claims for
injuries resulting from sexual abuse which took place after January 1st,
2009 are handled differently than most other types of injuries. Such claims
have an extended filing requirement.
Certain public agencies are required by law to take steps to
prevent some types of injury to the public. In cases where an agency fails to
fulfill its duty under such a law, injured parties may have additional expanded
options for recovering from the agency. However, the plaintiff’s injury must be
of the type the agency was supposed to protect against.
Suing the government is not easy. A number of specific legal
hurdles have been developed to give governmental entities special protection
against liability. If you have been injured on public property or by a
government employee, you may have even less time than usual in which to take
legal action. You cannot afford to wait until you are feeling better or until
you have all the facts collected before starting the legal process. The good news
is that there are ways to recover from a public agency if you fulfill all the
prerequisites such as timely filing a completed claim with the agency. Act
quickly to protect your legal rights.
Content: The following blog was taken from
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Claims against the "Sovereign," or state, have different statute of limitations and rules. This blog gives a brief history of claims against the state and then discusses California’s Tort Claims Act.