Government Liability

October 3, 2018

Court Rejects Plaintiff’s Slip-and-Fall Case against City

Recently, a state appellate court issued a written opinion in a personal injury case involving a plaintiff’s injuries that were sustained while riding his bike in a public park. The case presents an important issue for Virginia premises liability plaintiffs in that it discusses the concept of recreational-use immunity, which also applies in Virginia.

The case required the court to determine whether the plaintiff’s case should be permitted to proceed against the city that was responsible for maintaining the park, or if the park was entitled to recreational-use immunity. Ultimately, the court determined that the city was entitled to recreational-use immunity because the plaintiff failed to establish that the city knew of the hazard that caused his fall.

The Facts of the Case

According to the court’s opinion, the plaintiff fell off his bike and was seriously injured after striking a pothole while riding on a trail in a public park that was maintained by the defendant city. The plaintiff filed a premises liability case against the city.

August 22, 2018

The Importance of Following the Procedural Requirements in Virginia Personal Injury Lawsuits Naming Government Defendants

by Sidney Schupak, Esq.

For nearly the first two hundred years of the nation’s history, state and federal governments could not be held liable in a lawsuit brought by a citizen unless the government entity being named as a defendant specifically consented to being sued. In effect, this insulated the government from acts of its employees, leaving those who were injured as a result of a government worker’s negligence without any real means of recourse.

In the mid-20th century that began to change with the passage of the Federal Tort Claims Act (FTCA). The FTCA provided a legal mechanism for those who had been injured due to the negligent or wrongful act of a government employee to seek compensation for their injuries. In the wake of the FTCA, states began to follow, passing their own versions of the law. The Virginia Tort Claims Act was passed in its current form in 1981, and is contained in Virginia Code, Title 8.01 sections 195.1 to 195.12.

In order to bring a lawsuit against a government entity under a tort claims act, the conditions of the act must be followed. In most cases, tort claims acts require plaintiffs to provide adequate notice to the government entity being sued and pursue their case in a timely manner. A plaintiff’s failure to file these rules precisely will almost certainly result in the dismissal of their lawsuit. A recent case illustrates how courts strictly interpret the procedural requirements of tort claims acts.

August 6, 2018

Court Dismisses Plaintiff’s Slip-and-Fall Case Against City Based on Plaintiff’s Failure to Show the City Knew of the Hazard

by Sidney Schupak, Esq.

Recently, a state appellate court issued a written opinion in a personal injury case illustrating one of the difficulties that some Virginia slip-and-fall plaintiffs encounter when filing a case against a landowner. The case required the court to determine if the plaintiff’s case should proceed to trial despite the fact that she did not offer any direct evidence that the city knew the hazard existed. Finding that the plaintiff’s photographs failed to sufficiently prove that a crack in the sidewalk was so old as to impute knowledge of its existence, the court dismissed the plaintiff’s case.The Facts of the Case

The plaintiff was taking a walk to get some exercise along a sidewalk that was maintained by the defendant city. At some point in her walk, the plaintiff tripped and fell on a slab of concrete, breaking her arm. The plaintiff called 911, and the plaintiff’s daughter transported her to the hospital. The next day, the plaintiff met with a police officer and reported her injuries.

Photographs of the sidewalk where the plaintiff fell showed two adjoining concrete slabs, one about 1.5 to 2 inches higher than the other. The plaintiff testified that, while she could not say for sure that she tripped on the raised portion of the concrete slab, she just “knew that her feet hit something.”

February 20, 2018

What Injury Victims Need to Know About Virginia’s Recreational Use Statute

by Sidney Schupak, Esq.

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.

A 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.

January 23, 2018

Plaintiff’s Bicycle Injury Case Dismissed Due to State’s Recreational Use Immunity Statute

by Sidney Schupak, Esq.

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.

The 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.

June 12, 2017

Court Finds Local Government May Be Liable for Dog Bite Attack

by Sidney Schupak, Esq.

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.

The 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.

May 17, 2017

Appellate Court Applies “Firefighter’s Rule” in Dismissing Personal Injury Case

by Sidney Schupak, Esq.

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.”

The 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.

April 10, 2017

Federal Appellate Court Determines Government Is Immune from Liability for Bicycle Accident Occurring in National Forest

by Sidney Schupak, Esq.

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.

The 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.

March 22, 2017

Court Prevents Slip-and-Fall Plaintiff from Making Argument on Appeal Because It Was Not Made at Trial

by Sidney Schupak, Esq.

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.

The 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.

January 23, 2017

Virginia Municipalities Are Responsible for Maintaining Safe Roadways

by Sidney Schupak, Esq.

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.

According 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.