William W. Hurst
Law Office of William W. Hurst, LLC
50 S. Meridian St., Suite 600, Indianapolis, IN 46204
Imagine you’re driving down the street, and you come to a four-way stop. You dutifully come to a complete stop, look both ways, and proceed forward. And then wham. You’re hit by another motorist who seemingly came out of nowhere. You’re injured, your car is totaled, and you’re staring down the barrel of a months-long recovery. Between the bills, the medical treatment, and the ensuing lawsuit, your life has just become substantially more complicated.
Now imagine there’s a twist: the driver was a government employee conducting government business when he negligently hit you. To a non-lawyer, that wouldn’t seem like much of a twist—after all, the driver was still negligent, you were still injured, and the driver will still be held responsible. The problem is that governments—both state and federal—benefit from a legal doctrine called “sovereign immunity.” Sovereign immunity is enshrined in the U.S. Constitution, and it says that neither the federal government nor any state government can be sued for damages unless the government agrees to be sued. That means that if the government employing that negligent driver does not agree to be sued, you could be completely out of luck.
It sounds crazy—and it is—but that’s what our Constitution says. Fortunately, both the federal government and the state of Indiana have a law known as the Tort Claims Act. Both laws operate as consent by the government to be sued, but each law attaches a number of strings and sets up a number of hurdles.
The Federal Tort Claims Act is the less strict of the two laws. It merely requires that notice of the suit be provided to the relevant government agency within two years of the event. In cases where the United States itself is named as a party, the plaintiff must file an “administrative claim” with the relevant agency and permit them six months to admit or deny that claim. Only then may the United States be sued. Additionally, the FTCA limits the reasons for which the United States or its employees can be sued. Only claims based on negligence—as opposed to strict or absolute liability—are authorized. Moreover, suits may only be brought as a result of the actions of an employee; suits may not be brought as a result of the actions of a contractor, even if the contractor was using government property at the time.
Other than those limitations, the FTCA is not particularly onerous. The Indiana Tort Claims Act, however, is a different animal. In Indiana, the statute of limitations for a personal injury claim is two years—meaning a plaintiff must bring suit within two years of the accident leading to injury. Under the ITCA, the statute of limitations is still two years, but notice of the suit must be provided much earlier. If the defendant is the state itself, notice must be provided within a mere 270 days. If the defendant is a county or municipality, that notice period shrinks to 180 days. If notice is not provided within that time frame, the plaintiff cannot sue.
More importantly, the ITCA makes it much harder for a plaintiff to win even if he or she meets the stringent notice deadline. In a normal negligence suit, the courts apply the doctrine of comparative fault—the court determines the amount of damages suffered by the plaintiff, determines what percentage of fault is born by the defendant, and then awards the plaintiff that proportion of the damages. So, for example, say a plaintiff was speeding, but the defendant ran a red light. The defendant could argue, rightfully, that the plaintiff contributed to the accident. If the plaintiff has $100,000 in damages and the court finds that the defendant bears 70% of the fault, the plaintiff will receive $70,000 in damages. In suits under the ITCA, however, the courts apply the concept of contributory negligence. Under this process, if the court determines the plaintiff bears any amount of responsibility for the accident—even just 1%–the plaintiff gets nothing.
If you are the victim of negligence by a government employee, it is even more important that you contact an experienced personal injury attorney in Indianapolis and to do so quickly. That attorney will be able to make sure you meet the appropriate deadlines and will be able to help defend against claims of contributory negligence.
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