April 15, 2013

Legal Liability For Emergency Vehicle Negligence

In urban America it is not uncommon to see speeding government vehicles heading toward a variety of locations. Whether the emergency vehicle be a fire truck, an ambulance or police vehicle this is a common day occurrence in places like Atlanta. Regrettably, during some of these responses, the emergency vehicles collide with innocent motorists. When this happens, obviously, the issue is whether there is legal liability for the operator of the emergency vehicle/government.

Under O.C.G.A. § 40-6-6, emergency vehicles are permitted to disregard traffic rules and regulations otherwise in place. For example, if the speed limit is 35 miles per hour in a particular location, an emergency vehicle may disregard that speed limit, however, in order to do so, the emergency vehicle should display its lights and sirens and even when doing so must exercise “due regard” for the safety of the motoring public. Regrettably, this is not always done with the foreseeable result that innocent third parties at the wrong place at the wrong time are injured.

If a police vehicle is responding to a radio call for assistance at a suspected scene of a crime and the police vehicle is traveling in excess of the posted speed limit, unless the police vehicle has on emergency lights and siren and is otherwise exercising due regard for the safety of the motoring public, the government entity responsible for its operation can be held liable if an innocent person is injured or killed during a collision caused by the failure to exercise such due regard. Under Georgia law, there is a waiver of sovereign immunity for the negligent operation of governmental vehicles up to a maximum of $750,000.00. While many injuries and deaths due to governmental negligence can result in damages in excess of this statutory limit, nonetheless, currently, this is the extent of the waiver of sovereign immunity when it comes to the negligent operation of government vehicles.

Innocent persons injured during collisions with emergency vehicles do have rights and remedies under the current State of Georgia law. Sovereign immunity no longer absolutely bars such claims as it once did. However, the burden is still upon the innocent party to establish that the emergency vehicle transgressed the boundaries of the liberties given to it under Georgia law by failing to exercise their emergency lights and siren and/or by disregarding the due regard for the safety of the public.

March 29, 2012

Tort Claims Against Local Government Employees

Here in Georgia, due to the doctrine of Sovereign Immunity, as we have posted before, it is very difficult to sue a local government employee. If a government employee commits a tort against an innocent third party and that person wishes to file a claim against the government employee, the government employee cannot be sued in his or her official capacity unless the employer of the government employee has waived its sovereign immunity. This is because any claim against the employee in his or her official capacity is considered by the Courts in Georgia to be equivalent to a claim against the government itself. Thus, absent a waiver of sovereign immunity, which is quite limited, there will be no claim against the employee in his or her official capacity.

If an employee is not acting within the scope of their discretionary authority and violates a ministerial duty, or acts with actual malice or intent to cause injury, or acts completely outside the scope of their employment, they can be held individually liable for torts against innocent third parties. There are a lot of qualifications in the law in this regard and it is not always easy to determine what constitutes a discretionary act as opposed to a ministerial duty. As long as there is a policy or procedure in place, which requires the execution of a simple task with definitive guidelines for the execution of that task, there is at least an argument to be made that the duty is ministerial in nature and therefore if the employee, by virtue of failing to perform such tasks, negligently causes harm to an innocent third party, then in that event, a valid claim can be asserted against the government employee individually. Otherwise, any claim against a government employee will be barred by the doctrine of Official Immunity because a government employee cannot be sued for discretionary acts performed in the course of their duties. One limited exception to this are automobile tort claims where there is a limited waiver of immunity. As might be expected, whether an employee can be successfully sued in an individual capacity is a factually specific inquiry.

February 9, 2012

Tort Claims Against State County And Municipal Governments

Any one who is injured by the acts or omissions of a government agency or employee should understand that there are some hidden traps that could defeat their claims if the law is not followed, in some cases, scrupulously followed. Here we refer to the ante-litem notice provisions required under Georgia law in order to perfect a claim against a government officer or entity. In certain circumstances, if a timely ante-litem notice is not filed, either with a city, county or state government, the claim can be defeated. In essence, ante-litem notice provisions serve the purpose of shortening the otherwise applicable statute of limitations for a personal injury claim from two years to, in the case of cities, to six months for the notice and for county and state employees twelve months for the notice. If a timely ante-litem notice is provided, the statute of limitations for a personal injury case is still two years, if not, the case is over.

Under Georgia law, a claim cannot be brought against municipalities for alleged tort damages unless a written notice is provided to the city within six months of the date of the occurrence describing the claim, nature of the claim, the damages sought, etc. The more details provided to the city, so that it can investigate the claim, the better. Again, such a notice must be provided within six months. Relative to counties, notices must be provided within twelve months. With respect to claims against state government, again, there is a twelve month notice period, but under the terms of the State Tort Claims Act, the notice provisions must be scrupulously honored and served upon all persons specified in the State Tort Claims Act itself.

The point to be made in this brief entry is that there are statutory provisions requiring a written notice to be served upon the government whenever one is considering filing a tort claim for damages arising out of the acts of a government agency or employee. If these ante-litem provisions are ignored, the claim can be defeated as a matter of law. Accordingly, it is very important that anyone who has suffered injury at the hands of their government confer with experienced counsel in these cases so as not to lose their legal rights to sue the government. While sovereign immunity may still bar many claims, claims will be barred altogether if ante-litem notice provisions are ignored.

April 26, 2011

Asserting Claims Against the Government

Any lawyer who has a client with a claim against any branch of government knows full well that there needs to be investigation of that claim in order to be successful in prosecuting it. One of the first steps in the process is to serve a timely ante-litem notice claim within six months of the claims against a municipality or within twelve months if it involves a claim against the State or a county government agency. We have previously blogged about these requirements in other entries. Nonetheless, once counsel has filed a timely ante-litem pre-suit notice of a claim, counsel further needs to use Open Records Act requests available under Georgia law to request any and all documents that will be necessary to prosecute the claim. Some records are exempt from the Open Records Act such as criminal investigative documents in a pending criminal investigation, however, most public government documents can be obtained via an Open Records Act request as they are required to be maintained in the normal course of business.

An example of the type of documentation one might wish to secure via an Open Records Act request would be a request for insurance data for the city or county and other required government policies applicable to the incident. Obviously, the key is to demonstrate that there has either been a waiver of sovereign immunity through the purchase of available insurance coverage and/or the enactment of policies and procedures whereby counsel will be able to argue that there was a breach of a ministerial duty in failing to execute a simple ministerial duty required under local policies, procedures or state law.

Any time there is a potential claim against any governmental entity, sovereign immunity defenses loom large. The courts have been very protective of most governmental agencies and absent an exception to sovereign immunity, counsel will be unsuccessful in helping a client obtain redress for any damages caused by governmental negligence. However, there are numerous exceptions to sovereign immunity and through proper pre-suit investigation and utilization of the Open Records Act request and other investigative techniques, it is still possible in certain circumstances to successfully prosecute a personal injury claim against a government agency or employee. While every case is factually specific, investigation is the key in all of these cases.

Anybody with a claim again a governmental agency should always consult with experienced counsel to make sure that all ante-litem notices are sent out in a timely manner and that a proper investigation is conducted. Absent either, a claim may be lost even if it is potentially viable.

November 30, 2010

Suing State Government In Georgia: Exceptions to Sovereign Immunity

There is a State Tort Claims Act found at O.C.G.A. § 50-21-20, et. seq. The Act resulted from an amendment to the Georgia Constitution and became law in April of 1992. It was intended to provide a remedy for torts committed by State officers and employees and establishes a procedure to waive sovereign immunity under certain circumstances to allow suits against the State for tortious acts of state agents, employees and/or officers. Individual State officers and/or employees may not be named as a party to a lawsuit. Under the State Tort Claims Act, the exclusive remedy for a tort committed by a State employee is an action against the state agency involved and not against the employee personally.

It must be noted that if someone has a claim against a state agency or employee they must file an ante-litem notice with the State. The law is very specific in this regard. Notice must be given in writing by certified mail, return receipt requested or a personal delivery letter to the Risk Management Division of the Department of Administrative Services. Additionally, a copy shall be delivered personally to or mailed by First Class Mail to the State government entity involved in the tort. The Notice also must include certain information in order to be valid. It must state the extent of the claimant’s knowledge and belief as to the basis for liability, the time and place of the transaction or the occurrence out of which the loss arose, the nature of the loss suffered and the amount of loss claimed. Once an ante-litem notice is properly filed with all this information, a claimant cannot file suit against the State of Georgia until either the Department of Administrative Services has denied the claim or more than ninety (90) days has elapsed after presentation of the claim, whichever occurs first.
There are twelve (12) areas of State activity specifically excluded from the State’s waiver of its sovereign immunity which include as follows: Losses resulting from any exercise or performance of a discretionary function; acts or omissions in the execution of statutes, regulations or rules; assessment of tax or detention by law enforcement officers; legislative judicial or prosecutorial actions; civil disturbance or riots; assault, battery, false imprisonment, false arrest, malicious prosecution, abusive process, liable, slander or interference with contractual rights; inspection powers or functions; licensing powers or functions; highway and other public work designs when prepared in substantial compliance with generally accepted engineering standards.

As is clear from this list of items excluded from the waiver of the State’s sovereign immunity, all cases are factually specific and must be discussed with counsel. It is also clear that the ante-litem notice provisions must be strictly observed otherwise the claim could be forfeited for failure to properly notify the State in advance of filing a claim. In addition, the waiver of sovereign immunity if it is found to exist in a particular case is limited to $1 million per person with the State’s aggregate liability per occurrence not to exceed $3 million regardless of the number of those injured or killed. An example of this is the case against the Georgia DOT involving a bus of baseball players. Even though there were over 30 claims, the total waiver was capped at $1 million for any one player and $3 million for all the claims.

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November 15, 2010

Suing The Government: Exceptions to Sovereign Immunity

Today we received a telephone call from a client who had been injured on some school property. The client was vaguely aware of the doctrine of sovereign immunity and unfortunately for this particular person their claim was completely barred by operation of law. Why: because of the doctrine of Sovereign Immunity?

The law has long been that lawsuits against government official performing their discretionary and official job functions are discouraged. If it were not otherwise there would be litigation every time someone disagreed with what a government official did or how they performed their job, particularly if they claim to have been damaged by unskillful performance. Over the years more and more barriers have arisen with respect to tort claims against governmental entities. The obvious policy reason behind this doctrine is to protect government officials from being sued when performing their official functions on behalf of the public at large. It’s application can sometimes be harsh, but public policy cannot allow government officials to be sued for allegedly unwise decisions. That would surely open the proverbial floodgates as almost everyone at times questions the wisdom of public officials.

In future blogs we are going to talk briefly about how one can sue their government when they are injured by the negligent acts of a government agent or employee. As an example, if the United States Government is involved, one must be familiar with the Federal Tort Claims Act. If the State of Georgia is involved, one must be familiar with the State Tort Claims Act. If a county or municipality is involved, one must be familiar with the legions of cases that spell out the distinction between protected discretionary acts for which there is official immunity and the difference between cases involving a breach of ministerial duties for which there may be the possibility of a viable claim.

In our future blogs we will talk about exceptions to sovereign immunity and how it is still possible in certain limited contexts to obtain compensation for injuries caused by government officials. While sovereign immunity is still a bar to many otherwise valid claims based on public policy in this area, nonetheless, there are ways to obtain compensation for injuries and damages incurred by innocent victims of governmental negligence. The controlling legal issue for lawyers who seek to serve clients with such claims is to find a legal exception to the doctrine of sovereign immunity, to know when exceptions apply and to know how to survive a Motion to Dismiss based on a legal defense of sovereign immunity. As indicated, we will address this topic in future entries.

June 20, 2010

Suing State Law Enforcement Officials In State Court:Easier Said Than Done

Under the law of the State of Georgia, law enforcement officials enjoy official immunity for acts performed within the scope of their discretionary authority. As long as they are performing discretionary acts and not ministerial duties, they can only be held liable if they are acting outside the scope of his authority or with actual malice or intent to injure. These are very difficult propositions to prove in the routine case. If an officer, however, violates a simple ministerial task, he can be liable but even here sometimes there is a difficulty suing a particular law enforcement official because of the doctrine of sovereign immunity, which more often than not is implicated in these cases.

If a county official is involved, typically, the county can only be liable for acts where there has been a statutory waiver of immunity such as the statute which exists providing for a waiver of sovereign immunity in connection with damages caused by the negligent use of motor vehicles. As an example, in a police chase, if the officer recklessly disregards proper police procedure, the officer can be sued and official immunity overcome assuming there is evidence of reckless disregard of proper police procedure for the chase because of the statutory waiver of immunity. In other contexts, it is difficult to prove a waiver of sovereign immunity and consequently it is difficult to hold an officer liable for acts committed within the scope of his/her discretionary authority.

In many of the articles we have written thus far, we keep using “easier said than done” when it comes to bringing legal claims against law enforcement officials. The law is protective of officers acting within the scope of their authority and usually only allows claims to go forward when there has either been a clear breach or abuse of the authority and/or an intent to cause injury such that misconduct is established to exist. If the officer violates a simple ministerial task, again, he may be liable on a different legal basis.

Any such case against a law enforcement officer in state court must be analyzed under state law and sovereign immunity implications are always involved. Again, anyone with a case involving claims against a state law enforcement officials should confer with counsel as soon as possible in order to have the issues properly reviewed. Ante-litem pre-suit notices of claims are oftentimes required in these cases as well.

April 23, 2010

Suing Government Officials In Georgia

Most members of the public do not realize that it is very difficult to sue a government official. As long as government officials are acting within the scope of their discretionary authority, they are typically immunized by law from legal liability for mistakes they make, even including claims involving negligence, gross negligence and/or recklessness. The main exception to this rule typically involves the operation of automobiles for which there has been a statutory waiver of sovereign immunity in Georgia. There are, however, other limited exceptions which can apply in certain particular cases. As an example, if a government official is acting outside the scope of his authority or even if he is performing a discretionary act, if he acts with intent to injure and/or acts maliciously, he or she can lose immunized status and be subject to legal liability for such willful acts. Again, these exceptions to the doctrine of official immunity are limited. Accordingly, if a claim is to successfully be brought against a government official, it is necessary that counsel be retained at the earliest opportunity.

Not only is there a procedure maze of hurdles that one must overcome to file a claim against a government official, as indicated in earlier blogs and other posts on this site, there are multiple ante-litem provisions that must be taken into consideration when considering a claim against a government official. Valid claims against those who abuse their authority can be successfully prosecuted if the facts establish an exception to claims of official immunity.

March 14, 2010

Pre-Suit Notification For Claims Against the State of Georgia

If anyone has a claim against the State of Georgia for personal injuries caused by a state employee’s negligence, notice must be given in writing, mailed by certified mail return receipt requested, to the Risk Management Division of the Department of Administrative Services. This is set forth in O.C.G.A. § 50-21-26(a)(2). Additionally, a copy shall be delivered personally to or mailed by First Class Mail to the State government entity involved. Content of the notice is governed by O.C.G.A. § 50-21-26(a)(5). As a general proposition, such an Ante-Litem Notice must state the extent of the claimant’s knowledge of the circumstances including the name of the government entity, the act or omission involved, the time and place of the alleged negligent act, the nature of the loss suffered, the amount of the loss claimed and the acts or omissions which caused the loss.

As can be seen, Ante-Litem Notices against the State are governed by statute and if these statutes are not closely observed, a claim against a State government agency or employee can be lost altogether. While such claims must be given with in twelve (12) months from the date of the date the loss was discovered or should have been discovered, even if an attempt is made to file a pre-suit notice of loss within twelve (12) months, if the form is not sent in the correct way to the correct individuals, the claim can be time barred. Accordingly, once again, we urge all claimants who may have potential claims against a State government agency or employee to confer with counsel just as soon as possible so as to protect their interests.

March 12, 2010

Defeating Defenses of Sovereign Immunity

Oftentimes we are asked by clients who have claims against government entities and/or employees to represent their interests in personal injury cases. Regrettably, due to the antiquated and harsh doctrine of sovereign immunity (for legal claims), this many times proves to be a difficult undertaking. Simply stated, sovereign immunity protects many government agencies and employees from lawsuits involving personal injuries. Thankfully, there are some exceptions to the rule, most notably when there is another statute that waives the immunity from suit.

With respect to county immunity, the Georgia Code states that county governments are entitled to sovereign immunity unless liability is imposed upon them by law. See O.C.G.A. § 36-1-4. The only statute that imposes liability upon counties by operation of law is O.C.G.A. § 33-24-51, which allows a waiver of sovereign immunity when a county purchases liability insurance for the negligent use or operation of a government owned motor vehicle. The law used to be that if a government employee ran over someone or ran a stop sign and caused serious personal injuries nothing could be done because of the doctrine of sovereign immunity. As stated, there is now a statute that waives county government immunity in situations involving vehicles. However, if a county employee or agent hurts another person due to a difficult type of negligent act and there is no waiver of sovereign immunity, then there may not be any means of recovery for the innocent victim of the governmental negligence.
Because cases involving sovereign immunity are always factually unique, they require unique legal analysis as well. An ante-litem notice is required for virtually all claims against governmental agencies so anyone with a claim against a county, municipality or state government agency or employee should confer with counsel immediately to preserve their rights. Whether the doctrine of sovereign immunity can be overcome again will be a question of both facts and law, but the sooner the analysis begins, the better, because otherwise claims can be barred altogether for failure to file timely pre-suit notifications with the government agency involved.

January 7, 2010

Unnecessary Use Of Tasers Banned By Federal Court

The use of unnecessary force by law enforcement officers is a common and inexcusable problem. Many of the attorneys at Finch McCranie LLP have law enforcement backgrounds and recognize the inherent dangers of police work and the need at times to use force. However, this does not justify the use of unnecessary force.

The United States Court of Appeals for Ninth Circuit has recently issued an opinion addressing this issue in the context of Taser use. The Court, headquartered in California has sent a strong warning to law enforcement officers that should make them hesitate before routinely using Tasers. It ruled last week that a police officer can be held liable for delivering a high-level electric shock to an unarmed person who poses no immediate threat.

The case arose out of an incident involving a young man who was driving to his parents’ home when he was stopped for speeding. He had previously been stopped and ticketed for On the same trip, he was pulled over for not wearing a seat belt.

Angry at facing a second traffic citation, he hit the steering wheel and yelled expletives to himself and exited the car. The officer making the stop claimed the young man took one step in his direction, while the young man denied making any such move. However, it is undisputed that the young man was not armed, did not verbally threaten the officer and was not attempting to flee.

Without warning, the officer shot the young man with a Taser, which delivers a very painful, 1,200-volt electric charge. As the current immobilized him, the young man fell to the ground, fracturing four teeth.

The young man sued for assault and battery and intentional infliction of emotional distress.
The Ninth Circuit ruled that the officer was not justified in using the Taser on the young man who posed no threat, and was merely stopped for speeding.

While the the ruling is only binding on those states which comprise the Ninth Circuit, it is nonetheless important. There have been many questions raised about the dangers of Tasers, with death resulting in some instances. All courts should recognize that the routine use of potentially dangerous force is not justified.

December 18, 2009

Suing The Government: Pre-Suit Notice Requirements

It is a sad reality that innocent citizens are oftentimes injured by their own government. City and county employees and/or state employees operate vehicles on a day-to-day basis and like other drivers sometimes are guilty of negligence which cause considerable damage to innocent third parties. Because of the expansive conduct of governmental entities in virtually every aspect of our lives, there are many other real life scenarios whereby innocent third party citizens cam be and are injured by the acts of government employees. In such circumstances, there is always an issue as to whether the injured individual has a right to sue the government for any damages inflicted because of the longstanding doctrine of Sovereign Immunity.

Setting aside for a moment whether one can sue the government successfully and overcome a defense of Sovereign Immunity, another hurdle the injured individual faces in these cases is dealing with statutory pre-suit notice requirements. These pre-suit notice requirements are often referred to as “ante-litem” notice provisions. What this means is that before a injured citizen can sue his or her government with a claim for money damages, they must give the government pre-suit notice of the claim so that the government has a sufficient opportunity to investigate the claim and determine whether the government has any liability and, if so, what damages are involved. Here in Georgia, if an injured individual has a claim against a municipality, they must provide notice to that municipality within six months of the date of the occurrence otherwise their claim is time barred. If they have a claim against a county, they must give notice within one year and the same is true for claims against state government. There are also specific methods by which these notices must be given so if the injured individual is acting without the advice of counsel, they could run afoul of the various ante-litem notice provisions. If they do, they may not be able to sue the government - even if their claim is meritorious. This is why we have referred to these ante-litem provisions in other blogs written on the subject as “Traps for the Unwary.”

If you or any member of your family are injured by a government employee, you should immediately confer with counsel so that pre-suit notice requirements can be observed and your claims not held by law to have been waived for failing to provide statutorily mandated ante-litem notices to the government entity involved.