The Federal Tort Claims Act (FTCA), passed in 1946, waives governmental sovereign immunity in lawsuits against the U.S. government for injuries resulting from the negligent actions of government workers acting within the scope of their employment. Numerous other state laws have been fashioned this act, which contains a few exceptions. Among those: Claims based on the performance of a discretionary function or duty.
The term “discretionary function” is understood to mean a duty or function that necessarily requires the exercise of reason and discretion as to how, when or where the action should be done. Courts have struggled with interpreting this waiver because, to some extent, all most all duties require some discretion. Usually what is considered is whether mandatory regulations require certain specified conduct. So for example, there is some statute that indicates a government worker “shall” as opposed to “may” carry out some course of action. The second element is whether the decision requires some exercise of judgment based on considerations of policy.
Discretionary function immunity is sweeping in depth, and it needs to be considered prior to pursuing any personal injury lawsuit against the government. That said, it does not protect government agencies in all instances.
Take the recent case of City of Beech Grove v. Beloat, an Indiana Supreme Court case brought by a woman who suffered a trip-and-fall injury on a public street and sued the city for negligent maintenance.
The underlying incident occurred in June 2012 as plaintiff was walking from her home to the library. She began crossing the street and as she did so, she took note of a pickup truck that had stopped a few feet into the crosswalk area. In order to avoid walking right into the truck, she stepped slightly outside of the crosswalk. Suddenly, she heard a snap. She fell to the ground. She looked down to see that her foot was stuck in a deep hole in the ground.
She was unable to get up and had to remain sitting in the middle of the street until two others nearby stopped to help her. One of these individuals drove her to the hospital. It was there she learned she had a broken leg.
Plaintiff filed a personal injury lawsuit against the city, alleging the city negligently failed to maintain the street and that her stepping into that hole caused her to fall and incur medical bills and pain and suffering.
The city responded by denying liability and asserting immunity under the state tort claims act. The city later motion for summary judgment, asserting:
- Plaintiff was unable to prove the cause of her injury;
- City was immune from the lawsuit per the discretionary immunity function provision of the state tort claims act;
- Plaintiff was contributorily negligent.
Although the trial court denied the motion, the appellate court in a split decision granted on the basis that the discretionary immunity exception applied.
The state supreme court granted review and vacated that decision. In so doing, the Indiana Supreme Court ruled the city had failed to demonstrate that the alleged failure to maintain the street was an a policy decision that was made consciously by weighing the risks and benefits — which is what it would need to show to be granted this immunity.
The case was remanded back to the lower court for trial.
If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.
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Study: U.S. Drivers Increasingly Dangerous, Distracted Half the Time, March 21, 2016, Florida Injury Lawyer Blog