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  • Writer's pictureMERCADO KRAMER LLP

When the government is at fault

What do the following situations have in common?

  • A California Highway Patrol (CHP) officer goes out one afternoon for routine patrol. He rear-ends a 46-year-old father who is stopped at a red light. The father suffers a severe whiplash injury.

  • A 79-year-old woman is walking on a sidewalk on the main street of her small town, running errands, when her toe catches on a jagged piece of an uneven sidewalk, causing her to fall and get a concussion.

  • A 34-year-old woman riding a bicycle gets hit by a passing truck and breaks her leg. The truck driver blames the faulty design of the roadway for blocking his visibility. Similar accidents have happened on the same stretch of road.

The California State Capitol. Mercado Kramer can help you if you were injured due to the negligence of local, state or federal government.

In each of these cases, a state or local government is potentially at fault for causing injury. Any time local or state government is involved in a personal injury case, things can get complicated. In the example of the CHP officer above, who was at fault is clear. The CHP officer was on the job and struck a stopped vehicle in broad daylight. But other times, there can be disagreements about whether a government employee was acting as an individual versus acting in the scope of their public employment. In the case of the elderly woman who tripped on a sidewalk, her city government most likely owns and controls the area where she fell. The city may argue that no sidewalk is perfect, and they can’t be blamed for small defects. Or they may argue a private landlord was responsible for the sidewalk in question. In the case of the woman hit by a truck while riding her bike, her injuries might be due to both the actions of the truck driver and the design of the roadway.

The California Tort Claims Act dictates how and when the government can be sued for damages when someone is injured. The government has stronger legal protections than an average citizen, and there are very strict laws for the claims process. Below we will provide general information to help you get started if you have a potential government claim.

Identify all potentially involved government actors

It’s very important that a personal injury lawyer quickly investigates cases from the start to determine if any of the defendants are a government agency or person who was acting in a government job or function. The attorney must also correctly identify which government agency or agencies are involved. You or your attorney may be able to get information by making a phone call to the government agency in question. But ultimately, it is much easier to dismiss a claim against a public entity than to try to add one when it’s too late.

The best practice is to provide notice to each and every government entity that could be responsible. For example, an accident might occur due to dangerous property in an area of a University of California campus within the limits of a city. The personal injury attorney should notify both the college and the local government of a claim. Sometimes, government services such as waste disposal are contracted out to private corporations, so there may be both private and government parties responsible. As another example, in Santa Clara County, the Santa Clara Valley Transportation Authority (SCVTA) is responsible for public transport such as light rail trains. The SCVTA is a partnership between multiple levels of government.

Example from the City of Monterey

Giving the government notice

Let’s take a look at how to provide notice to the government of a claim. There are detailed requirements. Most importantly, under California Gov. Code § 911.2 you must give notice to the correct government agency within six months of the date of loss (for example, the date of the car wreck that injured you). To be safe, you will want to identify the appropriate government agency and confirm that you are sending notice in the correct way, with proof of delivery, well before six months have passed. For example, when mailing your notice of claim, you can use a certified mail receipt from the US Postal Service. If your notice is late, you can permanently lose your right to compensation.

In many cases, the government agency in question will provide a form for you to fill out. You are required to use that form under Gov. Code, § 910.4. But you are ultimately responsible for providing the correct information to the government. Therefore, your notice must include the following:

  • The name and address of the claimant (injured person)

  • The date and location of the incident

  • A general description of the damages claimed (e.g., how you were injured and what injuries you have)

  • The names of the involved government actors, if known

  • The dollar amount of your claim, if it is under $10,000 (otherwise, you can note that it “exceeds $10,000” or “exceeds the jurisdictional requirements of the Court”).

    • If the amount is under $25,000, you must indicate that the claim would be a limited claim in the Superior Court of California. (In California courts, claims below $10,000 are handled in Small Claims Court; claims between $10,000 and $25,000 are considered limited claims in Superior Court, and claims above $25,000 are unlimited).

  • For certain cases where the State of California is the government entity involved, there is a $25 filing fee. You can get a waiver of this fee.

What happens after you file your claim

After you properly submit your government claim, the government entity in question has strict requirements for how they respond.

  • If the notice of claim is “insufficient,” for example, if it is missing required information, the government entity must notify you of this fact within 20 days of receiving the claim under Gov. Code 910.8.

    • If the government agency sends a notice of insufficiency after more than six months have passed since the date of your loss, you will only have an extremely tight 15-day period to correct your notice of claim and provide all the correct information.

  • If the agency considers your claim untimely, they must provide notice within 45 days. See Gov. Code §911.3(a).

  • The agency can accept the claim under Gov. Code § 912.6(b).

  • The government can reject the claim in whole or in part. After a rejection, you have up to six months (180 days) to file a lawsuit once your claim is rejected. If you do not file a lawsuit within 180 days of receiving the rejection, you will most likely permanently lose your right to bring a case. See Gov. Code §913(b).

  • If the government entity takes no action for 45 days after they receive timely notice of your claim, then the claim is considered rejected, and you are free to file a lawsuit. If you never receive a formal notice of rejection of your timely claim, you have up to two years from the date of your loss to file the lawsuit.

Things to Keep in Mind

You should be aware that the information above is only an overview. The laws about deadlines are extremely technical and depend on the facts of a specific situation. It is best to consult an attorney to determine if you are within time limits in your specific case. There are a few rare circumstances where, even if your notice of a government claim is late, you can still get leave of the court to move forward. But that is a big risk you don’t want to take.

Furthermore, it’s important to keep in mind that even if you meet all the notice and technical requirements of filing a government claim, you still face obstacles. Governments have a greater level of protection than average citizens when they are sued. As just one example, when you bring a claim against the government for premises liability (when you get hurt on someone else’s property), you must prove that the property had a “dangerous condition.” A dangerous condition under Gov. Code section 830(a) is “…a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” This law can give government agencies a lot of protection, even when their property is unsafe.

Finally, it’s very important to keep in mind that rejections of government entity claims are extremely common. If you receive a rejection, don’t give up! Our attorneys have handled dozens of government claims, and it is NORMAL that the government will reject your claim. Even if the government is clearly at fault, they most likely will disagree with the amount you are asking for. You will probably need to file a lawsuit to resolve your government claim, but you can reach a mutual settlement after the lawsuit is filed.

If you were injured and the government is potentially involved, we advise that you consult a qualified California personal injury attorney right away. Waiting can permanently hurt your case. Our personal injury attorneys can help you over the phone or at our offices in San Jose and Salinas.


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