One of the most common premises liability situations occurs when a member of the public is injured by a defect on a public sidewalk or roadway. Premises liability holds owners and occupiers of property legally responsible for accidents and injuries that occur on the property. Many people do not consider the large number of properties that are government-owned, including public parks, government office buildings, public sidewalks and bridges. Injuries on government property may be caused by defects on a public sidewalk, a faulty traffic signal, ice that was not cleared in front of a government building, or even a cut from broken playground equipment.
In the past, governments were protected from lawsuits by “sovereign immunity,” which prevented the government from being sued and found liable. Now, however, the federal and many state governments have passed tort claims acts that allow the government to be found liable in certain situations. The applicable statute will depend on whether you are injured by or on federal government property, state government property or local government property.
It is important to note that, under most state tort claim acts, you must send a notice of claim to the appropriate governmental representative within 90 days of the accident. If you do not deliver the notice within 90 days, or if the notice is not properly delivered, then your claim will fail. Delivery may fail simply by sending the notice to the wrong person or governmental entity. Additionally, the statute of limitations for bringing a claim against a state governmental entity is often shortened.
Slip and fall cases present their own challenges, beyond added challenges of bringing a lawsuit against the government. Property owners have several defenses in premises liability cases. First, the defect or problem that caused the accident must have been present long enough for the property owner to know about it. It can be difficult to prove knowledge, because you will need witnesses to testify about how long the defect existed. In addition, property owners may seek to prove that the defect was “open and obvious.” Property owners are not expected to provide warnings against obvious dangers. An open and obvious danger is one that the average person would be able to discover and foresee the danger.
It is also important to note that a property owner, whether government or private, does not generally owe any duty to trespassers. A trespasser is someone who is not authorized to be on the property. Trespassing is an issue with premises liability injuries, particularly in playgrounds and public parks. Many playgrounds and parks close after dusk, and by law, the government may not be held liable for an injury that occurs. However, there are exceptions to this rule where the property owner knows (or should know) that there are frequent trespassers on the property. Property owners also remain liable where they know or should know that young children are likely to trespass, like a playground or park.