Suing the government for premises liability requires overcoming a number of legal hurdles. It is true that government entities do owe the public a reasonable duty of care on public property, and the government can be successfully sued when they fail in this duty and someone gets hurt.
However, claims against the government are often up against tighter timelines. In some states, claims have to be filed within just 30 days of the incident. You also generally have to provide proper notice to the government agency so that they can launch their own investigation. It’s only once the statutory timeline has passed for that investigation that you can actually file your lawsuit. And then from there, you may have to deal with the headache of sovereign immunity. The government does waive its sovereign immunity rights for a wide range of personal injury claims. However, if the injury stemmed from negligence related to a function of government that involved planning decisions and discretionary choices, the discretionary function exception may apply and the government could be immune from litigation.
Typically, if your claim is based on an act or omission of a government worker who exercised due care in executing a regulation of statute, the government won’t be liable. Further, the government generally isn’t liable if that government worker used discretion in his or job – regardless of whether that discretion was abused.
It can be a confusing concept if you aren’t familiar with the law and the precedent set by previous cases in your home state. That’s why only an experienced personal injury law firm should take your case.
Enter the case of Crider v. DeSoto County, recently before the Mississippi Supreme Court.
Plaintiff was visiting the county civic center for a high school graduation when she stepped in a hole that was obscured by grass. This happened while she was crossing a grassy area of the center to get to a car. As a result of her fall, she broke her ankle. She sued the county, alleging there was a failure to maintain the grassy area in a safe condition.
Defendant county moved for summary judgment, arguing that it was protected by discretionary function immunity. The trial court judge granted that motion, reasoning the discretionary exception applied because there was no state law that required the civic center to operate and further, plaintiff hadn’t asserted any statute or regulations that would removed defendant’s particuar actions or inactions from under the umbrella of discretionary function immunity.
Plaintiff appealed to the Mississippi Supreme Court. She argued the judge made a mistake by not applying the governmental/proprietary function test which precludes immunity. She also urged the court to overrule the decision it made in a 2014 case that would reinstate a two-part, public policy function test for ascertaining whether discretionary immunity applies. Finally, she argued even if there was government immunity, it was waived by the fact the county had secured liability insurance.
The court first noted it has repeatedly rejected claims that it should return to the two-part test that’s been adopted by the U.S. Supreme Court per the Federal Tort Claims Act, noting that the Mississippi Tort Claims Act is “materially different” in certain provisions. The court considered this fact settled, despite the “apocalyptic characterization” by the dissent (this was a divided opinion).
So the only question the court had left to decide was whether the circuit judge properly applied the requirements of previous case law to this one, and the court ruled that he did. The applicable test involves first considering the broad-level function to determine whether it’s discretionary or ministerial and then, the court takes a narrow look at the involved duties to ascertain whether there is any regulation or statute or some other binding directive that makes the duty ministerial. If there isn’t, then the duty is discretionary and the entity is immune.
If you are considering a personal injury lawsuit against a government agency, you should know that while it is indeed possible to win, you will need an experienced attorney to help you do it.
Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.
Crider v. DeSoto County, Aug. 11, 2016, Mississippi Supreme Court
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