Articles Posted in Government Liability

New Mexico is a beautiful state with huge amounts of open land that can be used for recreational purposes, whether it be hiking, biking, swimming, fishing, or hunting. To encourage landowners, including local governments, to open up their land to the public, New Mexico lawmakers have passed a recreational-use statute that provides immunity from liability for some accidents that occur on a party’s land.

FireworksNot all landowners are immune from liability, however. After an accident occurs, the burden is on the landowner to prove that they are entitled to recreational-use immunity. In order to qualify, the landowner must establish that they did not receive any compensation from the person who was injured on their land. Even then, there are several exceptions that apply. A recent case illustrates how another state court handled a slip-and-fall plaintiff’s claim against a city for an injury that occurred in a public park.

The Facts of the Case

The plaintiff planned on watching the 4th of July firework display at a park that was owned and operated by the defendant city. The plaintiff arrived at the park in the morning, and upon exiting her car, she made her way past a set of vertical poles used to establish the bounds of the parking area. The plaintiff later explained that she didn’t pay much attention to the poles as she walked by them, and even if she had looked at them, they would not have caught her attention.

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In a recent case, a state supreme court recently considered whether a student could sue the school district after she fell from a zip line at her elementary school playground. A nine-year-old girl and her parents filed a tort claim against the school district after the girl fell while using a zip line at the playground, fracturing her wrist and forearm.

Zip-LineThe school claimed it was immune from liability under the state’s Governmental Immunity Act. Under the Act, public entities such as a school district are generally immune from lawsuits unless the claim falls under one of the exceptions. The parents argued that one exception did apply:  the recreation-area waiver. The waiver provides that a public entity can be held liable for injuries resulting from a dangerous condition of a public facility located in a park or recreation area maintained by a public entity.

The court first determined that the playground, which was part of the school, qualified as a public facility under the waiver. However, the court held that a piece of playground equipment that was not negligently constructed or maintained could not be a dangerous condition under the waiver.

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In a recent case, one court considered whether a city could be held liable after a child was hit by a stray golf ball while he was on city-owned property. The golf course was owned by the city and managed by a private company. Next to the golf course, there were recreational areas, including a pedestrian walkway. The young plaintiff was struck in the head by a golf ball as his mother was pushing him in a stroller on the walkway.

GolferThe boy and the mother filed a claim against the city, alleging that the city failed to protect against a dangerous condition on public property by having a golf course next to a public walking area. According to the complaint, the boy was brought to the hospital and diagnosed with a brain injury. He allegedly suffered from cognitive delays, eye injuries, urinary dysfunction, significant pain, and emotional distress. The plaintiffs alleged that the city failed to protect against the known risk of golf balls hitting people outside the golf course by failing to put up adequate fences or other barriers and failing to adequately warn people of the risk.

The city filed a motion to dismiss the lawsuit, claiming it had immunity under the state’s laws. The trial court agreed and granted the city’s motion, finding it was entitled to immunity under a state statute. The law stated that a public entity is generally liable for an injury caused by a dangerous condition on its property; however, a public entity is not liable for an injury caused by the condition of a trail used for access to recreational areas that is not a public street or highway.

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Earlier last month, one state’s supreme court issued a written opinion in a slip-and-fall case that required the court to determine whether the lower court properly applied the state’s recreational use statute. The case also presented the court with the opportunity to discuss one of the foundational rules of appellate procedure. Specifically, the court grounded its opinion in the rule stating that when a plaintiff’s evidence is presented for the first time on appeal, it cannot be considered because it was not presented at trial.

Home PlateThe Facts of the Case

The plaintiff was the mother of a young boy who was injured while he was playing baseball in a park owned and operated by the defendant city. Evidently, the boy’s lower leg slid under home plate as he attempted to slide home. When he stood up after coming to a stop, he broke his leg in two places. The plaintiff filed a premises liability lawsuit against the city, claiming that the bases were not properly maintained and were a danger to those using the baseball diamond.

In a pre-trial motion for summary judgment, the city argued that it was immune from liability under the recreational use statute. Specifically, the city claimed that it allowed all citizens to use the park for no cost, and under the statute, it could not be held liable. The plaintiff objected to the application of the statute but offered no basis for the objection. Ultimately, the trial court granted the city’s motion and dismissed the case, finding that the city was immune under the recreational use statute.

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Late last year, an appellate court in New York issued a written opinion in a bicycle accident case, affirming a lower court’s decision not to apply governmental immunity. In the case, Turturro v. City of New York, the court determined that the alleged negligence was regarding a “proprietary function,” rather than a governmental one, and therefore government immunity was not appropriate.

City IntersectionThe Facts of the Case

The plaintiff, a 12-year-old boy, was riding his bike on a four-lane New York street at 6:30 in the evening when he was struck by a vehicle traveling at an estimated speed of 54 miles per hour. The speed limit was 30 miles per hour. The driver was cited for reckless driving in a criminal case, and he pleaded guilty.

The plaintiff then filed a civil lawsuit against the driver as well as the City of New York. Evidence was presented that several citizens and lawmakers had written to the Department of Transportation, asking the city to do something about the dangerous road. Specifically, citizens were concerned that drivers were speeding and drag-racing. The city presented evidence that in response to the letters, it had commissioned a study on motorists’ speed and notified the police of the findings. However, the plaintiff pointed out that no traffic-calming measures – such as road bumps, rumble strips, or raised crosswalks – were implemented. After a jury trial, a verdict was issued in favor of the plaintiff. Specifically, the jury determined that the driver was 50% at fault, the city 40% at fault, and the plaintiff 10% at fault.

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Recently, the Supreme Court of the State of North Dakota released an opinion in a personal injury case against a city in charge of the maintenance of a park where the plaintiff fell while rollerblading. The case stemmed from an incident in which a young woman was injured while rollerblading over a soft patch of material used to repair a crack on a park pathway.

Cracked PavementThe city moved to dismiss the claim, arguing that it was not properly served. In turn, the plaintiffs then properly served the defendants. However, proper service was made just after three years from the date of the accident. The park district moved for summary judgment, claiming that the plaintiffs’ claims were barred due to the three-year statute of limitations for claims against a political subdivision. The lower court dismissed the case and agreed that the case was barred by the statute of limitations.

The plaintiffs appealed and argued that the claim did not accrue until a later date, when they were informed by an attorney that there was a reasonable negligence claim against the city. However, the appellate court determined that, despite the discovery rule, the statute of limitations begins to run from when the negligent act occurs. Unfortunately, since the city was improperly served, the case did not abide by the requirements of the statute of limitations. Thus, the court affirmed the lower court’s decision.

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Earlier this month, an appellate court in West Virginia issued a written opinion in a personal injury case filed against the state’s department of transportation by the son of a woman who was killed in a car accident. In the case, Department of Transportation v. King, the court determined that the Department of Transportation (“the Department”) was entitled to governmental immunity and reversed the lower court’s decision that had allowed the plaintiff’s case to proceed against the government agency.

Smashed CarThe Facts Giving Rise to the Case

The plaintiff’s mother was killed in a car accident that was caused by another driver. The at-fault driver possessed a valid license at the time of the accident that was issued by the Department. However, the driver’s license had been suspended several years prior and had only recently been reinstated.

Evidently, when the at-fault driver applied for reinstatement, the Department issued the license without submitting relevant medical forms to the Department’s medical advisory board. There were rules in place governing when a referral was proper, but those rules allowed for the Department to use its discretion in making referrals. The plaintiff’s claim was that the Department’s failure to refer the at-fault driver’s application to the review board was negligent.

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In early November, the Supreme Court of Connecticut heard oral arguments stemming from a governmental immunity matter. According to the court’s written opinion, the plaintiff was hit by a vehicle near his school’s driveway. Through his parents, he brought a lawsuit against several defendants, including the superintendent and assistant principals of the school. The plaintiff argued that the named defendants negligently supervised the school’s staff and students, and as a result the plaintiff suffered injuries.

SchoolyardThe defendants moved for summary judgment, arguing that they enjoyed governmental immunity and could not be held liable. The trial court agreed and found that the defendants’ duty to supervise the students and staff was considered discretionary, and as a result governmental immunity applied. The trial court also found that although the superintendent and principals had a ministerial duty to assign staff to guard the lot, these administrators were also entitled to summary judgment because they fulfilled their duty by creating a schedule of assigned staff to monitor the lot. However, on the day in question, there was no staff member monitoring the lot because the scheduled staff member was out sick.

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The Supreme Court in the State of Rhode Island ruled on a case stemming from a tragic diving accident occurring back in 2008. The plaintiff, then 29, became paralyzed from the neck down after diving into a pond at a Veterans Memorial Park. The man and his wife filed a case against the state Department of Environmental Management and two individuals for negligence under a theory of premises liability.

Lake at DuskThe family claimed that the state failed to warn and guard against a dangerous condition on their property. The jury at the trial court returned a verdict in favor of the state. The plaintiffs then went on to file a motion for a new trial, but the state filed a cross-motion, arguing that they did not owe a duty to the plaintiff. The court referred to the state’s recreational use statute and found that although the state acknowledged the design of the pond was hazardous, the plaintiff also admitted that he was aware of the danger and that he may have been irresponsible in failing to check the depth of the water. The Supreme Court found that, even in looking at the evidence in the light most favorable to the plaintiff, the behavior of the state did not rise to egregious conduct. Moreover, there was no evidence to support the premise that the state “willfully or maliciously” failed to warn or guard against the dangerous condition. As a result, the court entered a judgment in favor of the State.

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The New Mexico Court of Appeals recently decided in favor of a plaintiff in a loss of consortium case stemming from a March 2010 accident. Apparently, several Albuquerque police officers responded to a report of a stolen car in a parking lot. The officers parked in various locations around the parking lot in unmarked cars.

Police SirensThe decedent and his children drove into the parking lot and parked next to the stolen car, and one of his children got out of the car and walked up to the stolen vehicle. The officers then parked one car behind the father, and as the father was backing out of the spot, he hit the police car. The officer then shot at the father’s car and hit him in the chest. Tragically, the unarmed father died from the gunshot wounds.

About four years later, the children’s guardian brought a lawsuit against the city for loss of consortium under the Tort Claims Act, arguing that the defendant shot the father in violation of City policy, and the father did not pose a threat. Furthermore, they contended that the city was also responsible for the death in the negligent hiring, training, and retraining of the officer who killed the father.

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