Can I Sue the Government for a Personal Injury?
It happens often enough that a government employee is in the exercise of his or her normal and expected duty and while using a state car, gets into an accident. A recent local case is a prime example of this scenario. A police officer responded to an emergency call, drove through an intersection, and hit the plaintiff’s car, causing injuries. City of Brazoria v. Ellis, No. 14-14-00322-CV (Tex App. May 28, 2015) memorandum opinion. Under common law, an individual has no right to sue the state. The state has sovereign immunity. In order to sue the government for any reason, you must have the government’s permission.
Sovereign Immunity in Texas
The Doctrine of Sovereign Immunity is a common law rule stating that the government is not liable to its citizens for torts. The State of Texas, however, like many other states grants citizens the right to sue the State, cities and/or counties within the State of Texas under the Texas Tort Claims Act.
The Texas Tort Claims Act and Personal Injury Lawsuits
The Texas Torts Claims Act (Section 101 of the Texas Civil Practices and Remedies Code) grants permission to sue for certain specific limited circumstances that are defined under the statute. With respect to personal injury claims there are two grounds:
- Property damage, personal injury or death arising from a State employee’s use/operation of a motor vehicle while in the course and scope of his employment duties, and;
- Personal injury or death caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.*
In order to prevail in a premise liability claim, the Texas Tort Claims Act further breaks defects into two classes: special defects and premise defects. Special defects tend to be government-created conditions like excavations in roads whereas a premise defect are the more typical slip and fall or trip and fall on water or a rug in a government building. If the defect is a premise defect, you have to prove actual knowledge of the defect on the part of the government before the fall occurred. Here is more reading on special defect vs premise defect.
Notice to State and Statute of Limitations for Tort Claims
Under Section 101.101 of the Texas Tort Claims Act, the State of Texas is entitled to a “notice of claim” before a claimant may pursue a lawsuit. The failure to properly provide notice to the correct State entities is fatal. Without proper notice, the trial court is without jurisdiction to hear a case under the Tort Claims Act. The plaintiff must notify the governmental entity within 180 days of the incident. This six-month timeline is not tolled, or suspended, because the victim may be a minor. (The notice period can be and often is shortened by municipalities and/or counties) The notice must include the following information:
- Description of the damage incurred,
- Injury suffered,
- Identity of the parties injured,
- The incident that led to the injury, and
- The time and place of the injury.
If the State government entity has actual notice that someone died, sustained some injury or property damage, then notice is not required. The government entity must have actual notice of the same information that must be included in the notice. The notice requirement is merely a necessary first step, or, condition precedent, to proceed with a lawsuit. Assuming notice was timely filed within 180 days, the plaintiff still has up to two years after the incident to file suit. Failure to file the notice in 180 days, however, kills the case immediately if the government entity is not on notice otherwise. Cities often shorten the notice period. For example, the City of Houston is 90 days. Thus it is critical that you take action immediately. See: Is a City Liable for Defects in City-Owned Sidewalks?
Limitation on Damages Under the Texas Tort Claims Act
Under Section 101.023 of the Texas Tort Claims Act, the maximum amount that any individual may recover depends on what type of government unit is sued. The state and municipalities allow for up to $250,000 per person and $500,000 per incident. All other levels of government allow for $100,000 per person and $300,000 per incident. There is no waiver of immunity for exemplary damages. Exemplary damages are simply not permitted against the government.
Exception for Emergency Response
There is an exception that make an otherwise viable cause of action under the Texas Tort Claims Act no longer viable. The most important exception to the Texas Tort Claims Act is when the state actor is properly responding to an emergency call or responding to an emergency situation and the actor did not act “with conscious indifference or reckless disregard for the safety of others.” Texas Civil Practice and Remedies Code, § 101.055. This protects the government from liability for police officers and government-operated ambulance drivers who are in auto collision while responding in good faith to an emergency situation.
Thus, there are certain cases and circumstances under which you may sue the government in Texas when a tort is committed by the government. However, there are strict rules and notice requirements you must follow. Thus, you should seek legal advice immediately if you were injured due to the negligence of a government employee, agency or official.
Paul Cannon has practiced personal injury trial law since 1995. He is Board Certified in Personal Injury Trial Law (2005). He has earned recognition as a Super Lawyer by Thompson Reuters in 2017 & 2018, and as a Top 100 Trial Lawyer by the National Trial Lawyers Association in 2017. He is a Shareholder, trial lawyer and online marketing manager at Simmons and Fletcher, P.C. His legal writings have been published by the Texas Bar Journal, Business.com, Lawyer.com HG Legal Resources, Lawfirms.com, and others. He has been asked to give education talks and media interviews on dog bite law.