Articles Posted in Government Liability

As a general rule, landowners owe a duty of care to those whom they allow onto their property. The extent of any duty owed is dependent on several factors, including the purpose of the visit as well as the relationship between the parties. Perhaps the most common example of a Virginia premises liability lawsuit is when a customer is injured while shopping at a business.

StadiumA recent case illustrates a different type of premises liability lawsuit. In this case, a young girl was seriously injured after she fell nearly 30 feet after slipping between the bleachers at a youth football game. The girl’s parents filed a premises liability lawsuit against the city, which operated the stadium, claiming that the city was negligent in the construction of the bleachers and also for failing to warn visitors of the dangers that were present.

The city claimed that it could not be held liable under the state’s recreational use statute. Specifically, the statute prevented anyone from holding a landowner liable if their injury occurred while engaging in recreational activity. In order for the statute to apply, the landowner cannot charge a fee for the use of their land. However, in this case, the city charged the plaintiffs $2 admission into the game, but did not charge their daughter any admission fee because she was under six years old at the time.

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A few weeks ago, a state appellate court issued a written opinion in a bicycle injury case that illustrates an important point for Virginia bicycle accident victims. The case required the court to determine if the state government could be legally liable for the plaintiff’s injuries, or if the state was entitled to immunity from the lawsuit. Ultimately, the court concluded that the accident fell within the state’s recreational use statute and dismissed the case.

Bicycle InjuryThe Facts of the Case

The plaintiff was riding his bicycle on a mixed-use trail. The trail was designed for bicyclists as well as pedestrians. As the plaintiff approached a pedestrian, the plaintiff rang the bicycle’s bell and began to move toward the middle of the trail to pass the pedestrian.

While the plaintiff was passing the pedestrian, the bicycle’s tire got caught in a crack in the pavement, and the plaintiff lost control of the bike. The plaintiff then fell off the bike and onto the pavement, injuring his shoulder. The crack was about three inches wide, two inches deep, and three feet long, running parallel to the path itself.

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Last month, an appellate court in West Virginia issued a written opinion in a case brought by the surviving spouse of a man who was killed in a vicious dog attack. The case was filed against the local county where the couple lived and required the court to determine if the county could be held liable, even though the dogs were privately owned by another citizen of the county. Ultimately, the court concluded that the city may be held liable because a special relationship existed between the county and the plaintiff.

Dogs at SunsetThe Facts of the Case

The plaintiff and her husband lived in Monroe County. On several occasions, the plaintiff had expressed concern to the county’s dog warden that several neighboring dogs presented a danger to the community. The dog warden told the plaintiff that the “county would take care of it.”

On a separate occasion, the dog warden visited the home of the dogs’ owner. However, when she pulled up, at least one of the dogs approached the car, jumped on the hood, and acted in an aggressive manner, preventing the dog warden from getting out of the car. She later returned to the home and issued a citation to the dogs’ owner for failing to keep the dog properly restrained.

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Earlier this month, an appellate court affirmed the dismissal of a plaintiff’s personal injury case because the court determined that the plaintiff was injured while she was acting as a firefighter. Applying the “firefighter’s rule,” which was codified in a state statute, the court explained that the defendants were immune from liability because the plaintiff’s injury resulted “from the condition of fire protection or firefighting equipment or facilities.”

FirefighterThe Facts of the Case

The plaintiff was a firefighter who was called out to fight a wildfire that had gotten out of control. Since the wildfire was rapidly spreading, many firefighters were called out to assist. The temporary barracks that were set up for firefighters filled up, and the plaintiff sought approval to set up camp in the infield of a racetrack that was acting as the center of operations. The plaintiff’s supervisor granted her permission to set up camp in the infield.

On the first night, there were no problems. The plaintiff woke up and fought the fire all day before returning. On the second night, however, a truck that was delivering water ran over the plaintiff, resulting in serious injuries. The plaintiff filed a personal injury lawsuit against the driver of the truck and several other defendants.

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Earlier this month, a federal appellate court issued a written opinion in a case that arose from a bicycle accident that occurred on federally owned land. Ultimately, the case presented the court with the opportunity to determine whether the government was immune from liability under the doctrine of sovereign immunity, which protects the discretionary acts of governments and government employees. Since the court determined that the alleged acts of negligence were discretionary, the court upheld the government’s sovereign immunity.

Forest TrailThe Facts of the Case

The plaintiff was riding her mountain bike in the De Soto National Forest. She did not look at the bulletin board at the trail head, which had a warning that the Couch Loop Trail was closed. The plaintiff and her friend continued down the Couch Loop Trail, eventually taking an alternate route off the main trail. This alternate route led the bikers to an area with various ramps, or “jumps.” The ramps were not built by the U.S. Forest Service, and the Forest Service claimed to have no knowledge of their existence.

The plaintiff rode over one of the ramps and fell, resulting in a serious injury. She filed a premises liability lawsuit against the federal government, claiming that the government was negligent in maintaining the land and also negligent in failing to warn her about the dangerous conditions. The plaintiff claimed that government immunity did not apply in this instance, since the acts of the rangers were ministerial. A ministerial act is one that does not involve the exercise of discretion.

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Earlier this week, an appellate court in Rhode Island issued a written opinion in a premises liability case brought by the parents of a young boy who was injured while playing baseball in a park owned and operated by the defendant city. Ultimately, the court determined that although the plaintiff presented evidence on appeal that the defendant city knew of the alleged hazard prior to their son’s injury, it could not be considered on appeal because the evidence was not presented at trial.

Baseball DiamondThe Facts of the Case

The plaintiff was participating in a baseball game in a park that was maintained by the defendant city. As the plaintiff was sliding into home base, his right foot and shin slid under the edge of the plate, which had been lifted due to repeated use. As the boy tried to stand, he broke his leg in two places.

A few months after the accident, the boy’s parents filed a personal injury lawsuit against the city, alleging that it had failed to safely maintain the field. In response, the city claimed that it was immune from the lawsuit due to the state’s recreational use statute. The plaintiff’s attorney issued a general objection to the application of the recreational use statute, but failed to provide a specific basis for the objection.

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As a general rule, in Virginia, local municipalities are responsible for maintaining the roads within their jurisdiction. When a municipality fails to properly maintain a road, and an accident is caused as a result of that failure, the local municipality may be held liable in a personal injury lawsuit. However, there are limits to both a municipality’s obligation to maintain the roads as well as the liability that the municipality faces for failing to do so.

ForestAccording to Virginia law, municipalities are required to safely maintain the roads themselves but not the traffic signals, signs, and roadway markings that are on or near the road. The distinction of what exactly constitutes a “road” can be very nuanced, as a recent case illustrates.

Bibler v. Stevenson:  The Facts

Bibler was driving through an intersection in Ohio when she was struck from the side by another motorist. The other motorist had a stop sign, but she explained to the responding police officer that she had failed to see the sign because it was overgrown with foliage. The police officer conducted a brief investigation and agreed with the motorist that the sign was obstructed and could not readily be seen.

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Earlier this month, an appellate court in California issued a written opinion in a case brought by the surviving family members of a man who was killed in an auto-pedestrian accident against the city where the accident occurred. In the case, Gonzales v. City of Atwater, the court reversed the lower court’s decision not to apply governmental design immunity, holding that the government met its burden to establish immunity. As a result, the $3.2 million verdict in favor of the plaintiffs was reversed.

Intersection at SunsetThe Facts of the Case

Gonzales was struck and killed in an auto-pedestrian accident occurring at an intersection in the City of Atwater. The surviving family members filed a personal injury lawsuit against both the driver of the truck that struck Gonzales as well as against the City of Atwater. The jury determined that the driver of the truck was not at fault and that the city was fully responsible for the accident, due to the dangerous design of the intersection. The jury awarded the plaintiffs $3.2 million.

The city repeatedly argued at various times throughout the trial that the case against it should be dismissed because it was entitled to immunity through the doctrine of governmental design immunity. Specifically, the city argued that it relied on a 2001 study it had commissioned to determine how to safely design the intersection before constructing the roads at the intersection. The trial court denied all of the city’s motions to dismiss, and a jury eventually issued a verdict in favor of the plaintiffs for $3.2 million.

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Due to its proximity to the nation’s capital, Virginia sees a higher-than-average number of lawsuits with government entities, officials, or employees being named as defendants. That being the case, it is important for personal injury plaintiffs to understand the concept of governmental immunity and how the legal doctrine can come into play in a personal injury case.

School Buses

Governmental Immunity Acts to Protect Government Employees in Some Situations

Under the long-standing doctrine of governmental immunity, a state or local government cannot face legal liability for the acts of its agencies or employees unless it consents to the lawsuit. Statutory law outlines some situations in which governments automatically consent to lawsuits brought against them, such as in cases of willful or intentional misconduct. However, in cases involving acts of negligence, government agencies will generally not consent to be named as a defendant.

This is where the doctrine of government immunity becomes complicated. Immunity only attaches to acts that are considered discretionary in nature. For those other acts that are ministerial, meaning there is a certain way that the act is supposed to be carried out, government immunity will not attach. This is where much of the litigation takes place in many lawsuits brought against government defendants. A recent case illustrates this point.

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Earlier this month, a state appellate court issued a written opinion in a premises liability lawsuit brought by a man who was permanently paralyzed after he dove into a state-owned pond, breaking his neck. In the case, Roy v. State, the court ultimately dismissed the plaintiff’s claim against the government, based on the state’s recreational use statute.

PondRecreational Use Statutes in General

A recreational use statute is a legislatively enacted law that acts to prevent injured accident victims from holding certain property owners financially responsible. Specifically, the recreational use statute grants immunity to those who open their land for the general enjoyment of the public. In order for the doctrine to apply, the landowner must not be receiving a fee from the people using the land.

In Virginia, the recreational use statute requires qualifying property owners to remain free of liability for any dangerous condition on their land unless the owner acts with “gross negligence” or a “willful or malicious failure to guard or warn against a dangerous condition.”

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