Government Liability

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

December 2, 2016 | 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.

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

July 20, 2016 | 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.

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

July 13, 2016 | 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.

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

April 1, 2016 | 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.

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

February 2, 2016 | 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.

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

January 19, 2016 | 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.