Government Liability

July 4, 2017

Court Applies Recreational-Use Immunity in Public Park Slip-and-Fall Case

Earlier this year, an appellate court in Alabama issued a written opinion in a premises liability case that required the court to discuss the state’s recreational-use statute and determine if the defendant, a government entity, was entitled to immunity. Ultimately, the court determined that the plaintiff failed to establish that an exception to the general grant of immunity applied, and therefore the government entity was determined to be immune from liability.

The Facts of the Case

The plaintiff was attending a July 4th celebration at a park that was owned and operated by the defendant city. The plaintiff arrived at the park by car and parked in a designated parking space. At the border of the parking lot were large vertical poles used to designate the parking area. These poles had holes at the top so that cables could be run through, connecting the poles. While on the day of the plaintiff’s injury there were no cables running through the poles, there were diagonal crossbars present used as support beams.

As the plaintiff exited her vehicle, she negotiated her way around the poles without incident. The plaintiff attended the firework display. However, on the way back to her car, she tripped on one of the diagonal support bars connecting the poles. She filed a premises liability lawsuit against the city, arguing that the poles and the attached support beams constituted a dangerous hazard and that the city should have warned park-goers.

March 28, 2017

Court Finds that Recreational Use Statute Protected City in Lawsuit Stemming from Baseball Game Injury

by Lebowitz & Mzhen

Earlier this month, an appellate court in Rhode Island issued a written opinion in which the court had to apply the recreational use statute to determine whether the defendant city could be held liable for injuries occurring at a recreational baseball game. Ultimately, the court held that the city was entitled to immunity and that the plaintiff’s argument that the city had prior notice of the field’s dangerous condition was not able to be considered on appeal because it was not argued below.

The Facts of the Case

The plaintiffs in the case were the parents of a boy who was playing a recreational game of baseball in a park owned and operated by the defendant city. During the game, the plaintiffs’ son slid into home plate, and his ankle and lower leg got lodged under the plate. When their son tried to stand up after the slide, he broke his leg in two places.

The plaintiffs filed a premises liability lawsuit against the city, arguing that it was negligent in maintaining the baseball diamond. In a pre-trial motion for summary judgment, the city argued that it was entitled to immunity from the lawsuit under the recreational use statute.

January 17, 2017

City Not Immune from Liability in Case Involving Stop Sign Obscured by Overgrown Foliage

by Lebowitz & Mzhen

Late last year, an appellate court in Ohio issued a written opinion affirming an intermediate appellate court’s decision that a city that allowed a stop sign to become overgrown with foliage was not entitled to governmental immunity. In the case, Bibler v. Stevenson, the court concluded that the city was not entitled to immunity because the stop sign was placed due to a state law requiring stop signs to be placed at intersections of “through highways.”

The Facts of the Case

Bibler was injured in a car accident when another motorist, Stevenson, allegedly ran a stop sign. Stevenson claimed that he did not see the stop sign, and the responding police officer agreed that the sign was overgrown with foliage and not visible to approaching motorists.

Bibler later filed a personal injury lawsuit against both Stevenson and the City of Findlay, the local government of the place where the accident had occurred. Bibler settled with Stevenson, and the case proceeded against the city only. In a pre-trial motion, the city argued that it was entitled to government immunity because under state law, governments are only liable for negligence involving “public roads,” which do not include traffic-control devices. Bibler agreed with that general statement but argued there was an exception when the traffic-control device was by the state’s “manual of uniform traffic control devices.”

December 2, 2016

Plaintiff’s Premises Liability Case Against Municipality Dismissed Due to Late Filing

by Lebowitz & Mzhen

Earlier this month, an appellate court in North Dakota issued a written opinion affirming the dismissal of a plaintiff’s premises liability case against a city because the case was filed after the applicable statute of limitations. In the case of Frith v. City of Fargo, the court rejected the plaintiff’s argument that a longer statute of limitations should apply because the condition that caused her injury was created by a third party rather than the city named in the lawsuit.

The Facts of the Case

The plaintiff was injured in July 2012 while rollerblading in a park owned and operated by the City of Fargo. According to the court’s opinion, the plaintiff was injured when she tripped over a soft patch of pavement that had recently been placed to cover up a crack. The paving had been completed not by a city employee but by a third-party independent contractor.

The plaintiff filed a lawsuit against the city only. She claimed that the city’s negligence in failing to deal with the hazard caused her injuries. The lawsuit was within three years of the accident, but the plaintiff failed to properly serve the city, so the initial case was dismissed. The plaintiff then refiled the lawsuit and properly served the defendant in October 2015.

July 20, 2016

State Court Finds Premises Liability Case against Government Sufficient to Proceed Toward Trial

by Lebowitz & Mzhen

Earlier this month, an appellate court in Michigan issued a written opinion in a premises liability case brought against a city, alleging that the condition of a road was unsafe. In the case of Kozak v. City of Lincoln Park, the appellate court determined that the lower court should not have granted the defendant city’s motion for summary judgment because the plaintiff presented a prima facie case of negligence, on which facts the government may not be entitled to immunity.

The Facts of the Case

Kozak was injured as she tripped while crossing the street in the city of Lincoln Park. According to the court’s factual summary, there was a three-inch differential in the height of two concrete surfaces that met, creating a tripping hazard. Kozak argued that this was unreasonably dangerous, that the City should have known about it, and that the failure to correct the dangerous condition was negligent.

The government had the Director of Public Services testify on its behalf that the condition at issue was not really a safety hazard and that it was still safe for public travel. The trial court then granted the defendant’s motion for summary judgment, finding that there was insufficient evidence presented to overcome the hurdle of government immunity.

July 13, 2016

Recreational Use Immunity Doctrine Prevents Paralyzed Injury Victim from Seeking Recovery in Diving Accident

by Lebowitz & Mzhen

Earlier this month, a state appellate court issued a written opinion in a premises liability case that was filed by a man who was paralyzed after he dived off a diving platform in a state park. The court noted that it was sympathetic to the plaintiff, but that the law had to be applied in an unemotional way. In so doing, the court found that the state was immune from the lawsuit based on recreational immunity.

Roy v. State: The Facts

Roy was paralyzed when he dove off a diving platform into the murky waters below it. He filed a premises liability lawsuit against the state, as well as the owner and operator of the park, alleging that the state had not done enough to protect against the type of injury he sustained.

The evidence presented at trial showed that there were “no swimming” signs up around the park, but that people routinely disobeyed the signage. There was even testimony that there were bathhouses and lifeguards occasionally on duty who would only stop swimmers when they would dive head-first into the pond.

April 1, 2016

Court Holds City Employee Not Entitled to Immunity as a “Land Owner”

by Lebowitz & Mzhen

Earlier this month, one state’s highest court issued an opinion interpreting the state’s recreational use statute, determining that a city employee named in his individual capacity is not entitled to governmental immunity as a “land owner” for the land he was in charge of maintaining. In the case, Johnson v. Gibson, the court determined that the plaintiff’s lawsuit should be permitted to move forward against the allegedly negligent employee and his supervisor.

The Facts of the Case

The plaintiff was injured while jogging in a city-owned park when she stepped in a small hole that had been dug to repair a sprinkler. The hole was dug by one of the defendants named in the lawsuit, who was a city employee in charge of park maintenance. The lawsuit also named the employee’s supervisor.

At trial, the defendants asked the court to dismiss the case against them, based on the fact that they were entitled to government immunity as city employees. Generally speaking, governments and private land owners alike are immune from personal injury lawsuits that occur on their land, as long as the land is open for use to the public without a fee. However, in this case the court determined that the city employee was not a “land owner” who had opened his land up for use by the public.

February 2, 2016

Affected Families Push the Supreme Court to Reconsider “Feres” Doctrine

by Lebowitz & Mzhen

Normally, when a patient is injured due to negligent medical care provided by a doctor, surgeon, or nurse, the injured patient is able to bring a medical malpractice lawsuit against the allegedly negligent medical professional, seeking damages for what they have been through. However, under an old legal doctrine called the “Feres” doctrine, military personnel can be denied the ability to recover damages based on injuries they sustained while on active duty.

The Feres Doctrine

The doctrine was first announced in the case of Feres v. United States, which was a United States Supreme Court case decided back in 1950. The case actually combined three individuals’ cases and decided them in one written opinion. The Court was able to do this because each case presented a similar legal issue: whether the United States government could be held liable for injuries suffered by active military personnel while they were on active duty.

The Court ultimately determined that the government should not be held liable for any injuries that were caused, even if the injuries were caused by a government official’s own negligence. The rationale behind the opinion is that the government should be more worried about big-picture concerns in times of war rather than worried about avoiding potential liability for the actions of its officials. While the basis for the decision arguably makes sense in some spur-of-the-moment battlefield decisions, it has recently been applied to situations that seemingly stray from the heart of the doctrine’s rationale.

January 19, 2016

Slip-and-Fall Plaintiff’s Case Against Federal Government Allowed To Proceed, Despite Immunity Claims

by Lebowitz & Mzhen

Earlier this month, the Fifth Circuit Court of Appeals decided a case that may have wide-ranging implications for slip-and-fall plaintiffs injured on government land. In the case, Gibson v. United States of America, the court determined that the federal government’s normal sovereign immunity from tort lawsuits did not attach, and the case should proceed to trial.

Gibson v. United States: The Facts of the Case

The plaintiff, Gibson, suffered a fractured leg while he was on federal government property inspecting Federal Emergency Medical Association (FEMA) trailers that were scheduled to be later sold at auction. The evidence presented indicated that the trailers were on a several hundred-acre, fenced-in lot containing hundreds of trailers.

On the day in question, the plaintiff was with a FEMA employee inspecting the trailers. Some of the trailers had pull-out steps to assist with entry and exit, while others did not. For those that did not have steps, the FEMA employee had her own step ladder she carried with her. She would set up the step ladder along the side of the trailer and would enter and exit that way.