Articles Posted in Government Liability

Most personal injury lawsuits stem from the negligence of a private citizen or company. However, in some instances, government entities and employees engage in reckless or negligent behavior that causes harm to the public. The Virginia Tort Claims Act, the state constitution and Virginia Supreme Court decisions outline the circumstances under which a private citizen may file a civil claim against a government entity or employee. Cases involving a governmental entity are complex and require an in-depth and comprehensive understanding of Virginia procedural and statutory rules.

Generally, Virginia law provides counties and their employees with immunity from negligence claims; however, immunity does not extend to contractual or civil rights claims. Moreover, the law protects Virginia cities and towns and their employees from immunity for lawsuits stemming from negligence arising from “governmental activities.” The immunity does not cover “proprietary activities,” contractual claims, and civil rights actions. The law generally classifies “governmental activities” as those conducted for the common good of citizens. In contrast, proprietary activities are those that private entities have traditionally done for a pecuniary benefit. For example, governmental activities typically include police work, firefighting, social services, garbage removal, hospitals, jails, engineering of water and sewer systems. On the other hand, proprietary activities are those such as street and sidewalk maintenance, markets, utility company work, airports, and public housing services.

While the rule seemingly provides governmental entities with broad protection, many exceptions exist. Injury victims may still have a claim if the entity engaged in certain conduct such as intentional acts, gross negligence, willful and wanton negligence, unauthorized actions outside the scope of employment, non-discretionary or ministerial actions, and some contractual claims. The distinction between activities can be challenging to parse out. For instance, news reports described a collision between a Virginia State trooper and another vehicle. Officials noted that injuries occurred, but they did not specify who the victims were. However, four people received medical treatment, and two were airlifted to a children’s hospital.

Generally, when a tragic accident occurs and someone is at fault, Virginia state law allows people injured in the accident to bring a civil lawsuit against the at-fault party in court. These lawsuits, if successful, can result in the injured victims receiving monetary compensation for their injuries, including money for lost wages, pain and suffering, and past and future medical bills. However, there are exceptions to whom you can sue and who can be held liable for accidents. An important doctrine to understand is sovereign (or governmental) immunity, which protects the government from personal injury lawsuits for actions arising out of or related to official duties. As a result, there are some cases in which accident victims may be unable to recover legally for their injuries because the responsible party is governmental.

To understand this concept, take a recent Virginia appellate court case that arose when a fire hydrant had an insufficient water source to fight a fire. According to the court’s written opinion, the case, a wrongful death lawsuit, was brought against the city when the deceased person died in a tragic fire. The firefighters who responded to the burning building attempted to get water from the closest fire hydrant, but the water flow was insufficient. The firefighters had to go to another hydrant, 1,000 feet away, and by the time that they returned with the water needed to fight the fire, the victim had died.

The victim’s estate brought a wrongful death lawsuit against the city. The city responded with a request to dismiss the lawsuit, claiming sovereign immunity. Sovereign immunity in Virginia protects a city from being sued for actions that it takes to carry out governmental functions. Because of that doctrine, the court dismissed the plaintiff’s case. The court reasoned that establishing and operating fire hydrants to help firefighters is a governmental function, and the victim’s estate could not bring suit against the city in this case.

Historically, under the theory of sovereign immunity, private citizens were not permitted to file lawsuits against the government. Sovereign immunity left citizens with no recourse against the government in Virginia personal injury accidents involving government officials. To address the fundamental unfairness of sovereign immunity, the government enacted the Federal Tort Claims Act (FTCA). The FTCA provides citizens with a mechanism to hold the federal government and its employees liable for their negligent actions. However, the FTCA has several important exceptions, most notably the “discretionary function” exception.

The discretionary function exception can significantly limit a Virginia injury victim’s right to recover against the government. This exception bars lawsuits against the federal government that are a result of the government actor’s judgment. Legislators included this exception in an attempt to prevent “judicial second-guessing,” and Virginia plaintiffs are tasked with overcoming a two-step inquiry before their lawsuit can proceed.

The first step in the inquiry requires the court to decide whether the challenged action was a discretionary one. The court will look at if the actor’s negligent act involved a matter of a choice or judgment. If the court finds that the decision was discretionary, they will then evaluate public policy concerns and determine whether the decision was grounded in social, political, or policy matters. If so, immunity may attach. The second prong is very broad, and many cases fail at this step. If a Virginia plaintiff’s claim meets these two prongs, their case will be able to proceed.

After a person suffers injuries because of another’s negligence, they may be able to recover for the damages they sustained. However, Virginia injury victims may face challenges when the negligent party is a government entity. Historically, individuals could not file lawsuits against governmental agencies. The Virginia Tort Claims Act (VTCA) is a statutory mechanism that provides government entities with protection against lawsuits. However, the VTCA also provides injury victims with recourse against the government in certain situations.

Government entities or their employees may face liability for accidents caused by their negligence. Government entities include city, state, and federal agencies and employees. Some common instances where the government may be liable is if a person slips and falls due to a dangerous condition at a government building such as a public library or school. Similarly, government entities may be responsible if an employee causes a Virginia car accident while performing work duties. For example, an appellate court in another jurisdiction recently issued an opinion in a car accident case involving issues of governmental immunity. In that case, the plaintiff was driving his employer’s vehicle when he rear-ended a city garbage truck. He filed a lawsuit against the municipality, alleging that the county was negligent in its operation of the garbage truck. However, the court held that the plaintiff did not provide enough evidence to overcome governmental immunity and dismissed the plaintiff’s appeal. This case illustrates that holding the government accountable can be difficult. However, it is not impossible.

Virginia injury victims must abide by special procedural rules to successfully file and resolve a lawsuit against a government agency or employee. First, it is essential to note that the VTCA only applies in cases where the offending party engaged in ordinary negligence. Next, Virginia Code Section 8.01-195.6 mandates complainants file a written notice statement to the responsible agencies. The notice must include details of the incident, including the date, time, and place of the injury. Claims against the Commonwealth of Virginia must be filed within one year of the incident; however, claims against a city or town must be filed within six months. Virginia claimants bear the burden of proving that the other party received notice. As such, claimants should send their notice of a lawsuit through certified mail and request a return receipt. After the government responds with a settlement, a refusal, or fails to respond within a reasonable time, the injury victim may proceed with a lawsuit.

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