If you want to sue a governmental entity for its negligence, you must first file a notice of tort claim with the governing body of the governmental entity. One particularly obnoxious practice taken up by a few personal injury attorneys is to send out boiler plate notices to all governmental entities in the vicinity of a motor vehicle accident where they represent an injured party.
Say, for example, a motorist runs a stop sign and turns in front of another person causing an injury on a state highway. These attorneys will send out notices of tort claim to the city, state, and county governments in which the road happens to be located. The notice will have a laundry list of alleged failures “negligence in design of the road” or “negligence in the design and placement of signage” etc. etc. — without even really checking to see which governmental entity actually controls the road in question; never mind checking whether any of these alleged defects actually exist or had anything at all to do with the accident. They just have a machine that churns out these notices. In response, the governmental unit has to open a file, notify its insurer, and incur other costs to monitor even completely baseless claims.
If the allegations in the notices were instead found in a civil complaint against the governmental entity, courts could deem them frivolous and impose sanctions. Among other things, an attorney filing pleadings is deemed to be certifying that there are good grounds to support the pleadings. It is not a very rigorous standard most of the time because courts want attorneys to have a lot of leeway to pursue legitimate claims on behalf of their clients. But, there are limits. Seems like there ought to be similar limits on notices of tort claims.
/s/An attorney for a governmental entity.
Doug,
I actually wrote something on this subject on my blog (www.ogdeonpolitics.com)…my advice to the legislature regarding eliminating the tort claim requirement. I think the problem you cite is a direct result of governments’ abuse of the real purpose behind the Notice of Tort Claim requirement.
Here is the problem, Doug. The purpose of the Notice of Tort Claim was to give government notice of possible lawsuits and an opportunity to investigate that claim before getting hit with the expense of a lawsuit. The problem is that , with the exception of smaller governmental units, the Notice of Tort Claim has not worked as it was designed. Rather than being a tool to investigate matters and hopefully settle them before litigation, the requirement is simply a tool to use to get Plaintiffs’ cases dismissed.
Example, the Attorney General’s office has a section for handling notices of tort claim. I have filed many tort claim notices and I have talked to many other attorneys who have filed notices. Not a single person could come up with a single instance where the Attorney General’s Office ever conducted an investigation into a Notice of a Tort Claim to see if the claim was valid.
I would also ask why would the AG investigate the matter and reach the conclusion that the claim is valid? It is the AG, after all, that is going to be representing the State in the lawsuit against that person Why would one part of the AG’s office reach the conclusion that the State is liabile when the AG’s office is going to go into court and argue that the State is not liabile.
Then take the City of Indianapolis. Again, not once have I known the City (under Republican or Democrat conrol) to ever do any investigation into a Notice of Tort Claim served upon the City.
As I said, the only place I’ve seen the Notice work is in smaller muncipalities.
Doug, what you describe is not something I endorse. But it is a direct result of the abuse by government of the notice requirement to trip up litigants. If governments were handling tort claim notices as they should – conducting investigations and trying to resolve cases before litigation – you would get a lot more sympathy from me.
I see the tort claim hurdles as a compromise between sovereign immunity and full blown tort liability for the government. The government could always just go the other way and say, screw it, “the king can do no wrong.”
And, no, the mechanical churning out of tort claim notices is not a direct result of government abuse. Most lawyers manage to navigate the system just fine – sending a tort claim notice only when there is a plausible claim. I’m not asking for an iron clad case before you file a notice. Just something within shouting distance of a plausible claim. These lawyers aren’t even looking at the case before sending out a notice.
Doug, the problem is that while attorneys handle the claims just fine, the fact is that many people with valid claims do not come to the attorney’s office until more than 180 days have passed (270 with regard to the State). That means the Notice of Tort Claim time frame is blown. Lay people seem to almost all know the 2 year statute of limitations. They don’t know the much shorter notice of tort claim deadline. A compromise might be to keep the requirement before filing the lawsuit, but drop the extremely short time frame that people do not know.
Again, if governmental entities would actually do a notice of tort claim investigation, then the requirement would get a lot more sympathy from me. I filed one personally for myself on a whistleblowing case. After several months passed I got a letter back from the AG saying that an “investigation” of the claim had been conducted and found not to have merit. I don’t know of a single witness who was contacted by the AG.
Worse yet, I saw a response to a Tort Claim where the AG’s office falsely told a possible litigant who was injured by a lack of medical care in prison that he legally couldn’t sue the State because the State had contracted out the medical care at the prison to a private company. That simply is just not true and the fact that they would convey to a possible litigant a false statement regarding the law, quite frankly stinks. Just because a government privatizes a service does not mean government is therefore no longer liable when that service is provided (or not provided) negligently.
I’m not sure I see the tort claim as a compromise, like you see it. I don’t think the type of broad immunity for all of government was, or would ever, be on the drawing board. I think the reason behind the requirement wa always about pre-trial settlement of cases.
I do not like the practice you describe. However, I too do not like it when a government which will not do a tort claim investigation, immediately jumps at the chance to dismiss a litigant’s claim if a tort claim notice is not served. It’s not like they were going to investigate it anyway.
I’m not sure I see the tort claim as a compromise, like you see it. I don’t think the type of broad immunity for all of government was, or would ever, be on the drawing board. I think the reason behind the requirement was always about pre-trial settlement of cases.
Doug is right. Until the Indiana Supreme Court abrogated it in 1972, the state had complete sovereign immunity.
I have to say that I agree with Paul’s comment above. The notice of tort claims really is not an efficient means of pre-investigation on behalf of the government. Yet another failed system within our overly bureaucratic government entities.