Suing the Government: What You Need to Know

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Under the doctrine of “sovereign immunity,” the United States government and states and municipal governments are immune from suits for torts caused by conditions on their property or by acts of their employees and agents.

The Cornell University School of Law defines a tort as “an act or omission that gives rise to injury or harm to another and amounts to a civil wrong. . .In the context of torts, ‘injury’ describes the invasion of any legal right, whereas ‘harm,’ describes a loss or detriment in fact that an individual suffers.”

The attorneys at Parker Waichman are experienced in advising and representing individuals injured on state, municipal, or federal property.

New York State has waived sovereign immunity, as long as victims of torts follow strict guidelines when attempting to recover from New York State or from a municipality. New York law requires that the injured party file a “notice of claim” in order to be able to take advantage of the waiver. The statute of limitations imposed by state law on claims against the government also applies. The notice must be filed within 90 days of the incident, though the court has the discretion to extend the deadline.

What to Do if Injured on Government Property

As with any accident, whether or on public or private property, the injured person needs to carefully document the injury and the circumstances. Someone who has been injured on local, state or federal property should:

  • Seek medical attention immediately
  • Document the claim as thoroughly as possible (with photographs, video; accident report; contact information for any witnesses)
  • Contact a personal injury lawyer for advice about a possible claim

Civil Rights Violations

New York State and its municipalities are bound by the rights listed in the U.S. Constitution and the state constitution, as well as by a variety of state and federal civil rights laws. If an individual is discriminated against by New York State or by a municipality and is injured, the individual may seek damages from the person who violated their rights. The individual may have been the victim of police misconduct (for example, false arrest and imprisonment, malicious prosecution, or excessive or unnecessary use of force). Most often, the injured party will recover damages from the municipality that employed the person.

To make a claim for violation of civil rights, the individual must follow the same guidelines for suing as for suing for tort injuries. The individual must file a Notice of Claim to take advantage of the waiver of sovereign immunity and must file within the statute of limitations imposed by state law on claims against the government.

Notice of Claim

A Notice of Claim, usually filed by an attorney on behalf of the injured party, is a written document informing a municipality that an accident or incident on municipal property resulted in injury. The notice will include:

  • The name(s) and address(es) of claimant(s); attorney’s name and address;
  • The nature of the claim;
  • The time and place of the accident or incident;
  • The damage or injuries being claimed.

After the Notice of Claim has been filed, the municipality has 30 days to request a preliminary hearing to enable it to begin the investigation of the claim. The hearing can include a request for a physical examination of the claimed injuries.

A court may extend the 90-day filing deadline, but the extra time allowed may not exceed the amount of time to file a lawsuit under the statute of limitations.

In determining whether to extend the deadline, the court will consider why the individual did not file within 90 days, and, in particular, whether the municipality had actual knowledge of the circumstances surrounding the claim within 90 days or a reasonable time after 90 days. The court may consider additional factors that may excuse failure to file in a timely manner, but it is not easy to extend the time limit.

In most cases, the individual must file a lawsuit within one year and 90 days of the event the caused the injury. However, if it is a suit for wrongful death (of a family member, for example), the representative of the deceased has two years from the date of death to file the lawsuit.

Legal Help in Suing the Government

If you have suffered injuries on government property or a violation of your civil rights, the attorneys at Parker Waichman LLP have the experience and knowledge to help you pursue appropriate legal action. Contact the firm for a free, no obligation case evaluation. To reach Parker Waichman, fill out the contact form or call 1-800-YOURLAWYER (1-800-968-7529).