Personal Injury: Claims Against The Government

Claims Against The Government

Fighting City Hall

Government Immune to Claims

The concept of sovereign immunity historically shielded government entities at all levels against liability, meaning they could not be sued.  “The King can do no wrong” is the way it was put in the distant past.  Even though there was no King in the United States, sovereign immunity persisted for centuries.  Government agencies, public officials and educational institutions enjoyed protection against law suits.

Claims Against The Government

However, this largely changed in the middle of the 20th century with the passage by U.S. Congress of the Federal Tort Claims Act.  This law states when, where and how the federal government can be sued and under what circumstances.  The Federal Tort Claims Act brings a limited waiver of immunity where claimants strictly comply with the law’s procedural matrix.

Procedures not existing in cases of any other kind, including ‘presentment’ are imposed.  A virtual minefield of traps for the unwary are set, allowing those with perseverance and fortitude to sue the government, but only if they tread very carefully through the procedural minefield.

State Level Claims – Jurisdiction by Jurisdiction

Slowly, most U.S. states have followed with their own versions of tort claims act legislation, spelling out when and how governmental bodies can be sued.  For example, Massachusetts enacted a tort claims act in 1978.  New Hampshire lawmakers in the same year allowed for claims against the government only in scenarios specified by the legislature.

In all states that have allowed such claims, typically, claims must be ‘presented’ to a designated office holder inside the government within a certain time after an accident or negligent act, or the injured party is barred from bringing a lawsuit.  Presentment is a procedural step requiring the outlining of any claim in a specific time place and manner.

Traps and Hurdles in Governmental Claims

Related but distinct laws create other obstacles to suing governmental entities.  For example, after slipping and falling on a defect in a public way, notice must be given within 30 days in some jurisdictions or the claim can’t be pursued.  Other jurisdictions require 60 or 90 day notice following certain defined categories of negligence as an absolute requirement before a law suit can be brought.  Such laws are called ‘notice provisions’.

No Claims for Discretionary Functions

The ‘discretionary function rule’ shields the government and its employees against suit if they are engaged in a task involving the exercise of discretion.  Also, policy makers cannot be held liable for acting or failing to act on legislative or rulemaking proposals.  Where “ministerial” tasks are involved, the government is liable for negligence.

Claims Against the Government: Legal Procedure

Many potholes and detours confront those pursuing claims against any government agency at any level.  This thumbnail sketch summarizes only a few.  Where government gave citizens the right to sue, the government took away that right incrementally by imposing procedural and substantive challenges.  Government immunity to claims exists in intricacies of statutes, rules and other law, and only a fool would pursue such cases without experienced legal counsel.

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About Andrew Myers

Attorney Myers is a member of the American Association For Justice, Massachusetts Academy of Trial Attorneys, New Hampshire Association For Justice, National Association of Consumer Bankruptcy Attorneys & Rotary International. Legal services provided in Massachusetts (MA) and New Hampsire (NH).

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