In Roadway Defect Cases, Sometimes “The King can do no wrong.”
Under most laws in the United States, the federal government as well as state and tribal governments generally enjoy sovereign immunity from lawsuits for a roadway defect. In some narrow matters, this immunity has been waived by law. Local governments in most jurisdictions enjoy immunity from some forms of a suit, particularly in tort, or better known as personal injury cases.
The State and Local Governments are generally responsible for ‘local’ roads, including, in some instances, the Interstate Highway System within major metropolitan areas. So, if something goes wrong, on a completed section of highway or road, the person who is injured may face a situation wherein nobody is legally responsible for the damages, even death. If the roadway is under construction when an accident occurs, then a whole new set of issues develop. Read post HERE.
Furthermore, the Foreign Sovereign Immunities Act provides foreign governments, including state-owned companies, with a related form of immunity—state immunity—that shields them from lawsuits except in relation to certain actions relating to commercial activity in the United States. The principle of sovereign immunity in US law was inherited from the English common law legal maxim rex non potest peccare, meaning “the king can do no wrong.”
In some states, a very specific notice must be given to the municipality prior to suit. These ‘State Tort Claims Acts’ usually require that a certain type of notice be given to the state within a certain period of time and containing specific information. Failure to provide this notice can cause a case against a state to fail and constitute a complete bar to an action.
In Louisiana, The State Can Be Sued for a Roadway Defect, Under Certain Conditions
In Louisiana, the right to sue the government is found in the Louisiana Governmental Claims Act, La. R.S. §§ 13:5101- 5113 (1975). Also, The State, a State agency, or a political subdivision shall not be immune from suit and liability for injury to person or property. La. Const. Art. XII, § 10. All Suits must be brought in Louisiana State Court, La. R.S. § 13:5106. The notice must be provided, and the notice deadline for a suit against the State is the equal to the normal statute of limitations for that type of claim. La. R.S. § 13:5108.
Furthermore, in Louisiana liability shall not be imposed on public entities or their officers or employees based upon the exercise or the failure to exercise their policymaking or discretionary acts when such acts are within the scope of their lawful powers and duties except for acts not reasonably related to governmental and acts which constitute fraudulent, or intentional criminal, misconduct. La. R.S. § 9:2798.1.
There is also a limit on certain damages at $500,000 per person for personal injury or wrongful death. La. R.S. § 13:5106(B). Also, money for medical care post-judgment shall be placed in a reversionary trust which goes back to the political subdivision if not used. La. R.S. § 13:5106(B)(3)
Essentially, what this means is that in some cases you can sue the State, but with limitations. Also, monetary judgments won against the State won’t usually be paid without legislative approval.
Roadway Defect Cases are Difficult
Generally speaking, if a roadway defect causes a severe personal injury, the victims will understandably want to seek redress and compensation for those injuries. Going about that is not an easy process. This is because for an injured roadway defect personal injury victim, it needs to be shown and proven that (1) there exists a right to sue; (2) the suit is filed in a timely manner with proper notification; (3) there was a defect; (4) the defect was a cause-in-fact of the accident; (5) that injuries were sustained; and (6) the value of those injuries. Even after that, collection against State and municipal governments can be challenging. Some insurance may exist, and, in other cases, the award would need to be appropriated from the budget, which many are stretched thin already.
If you suspect that you may have a roadway defect personal injury, contact the injuredGo.com Law Firm. We offer free consultations and want to help you. Proving a roadway defect case is no easy matter, and Attorney Ed Kramer has the experience necessary to help you evaluate your claim, and decide the proper course of action.
There has been a map of every fatality on US Roads and it is here.
State Transportation Departments Generally Responsible For Roadway Defects
Every State has some version of a transportation department. These government bodies are generally tasked with the maintenance and repair of highways. Depending upon where your roadway defect case occurred, laws will differ. The following is a list of State Transportation Web Sites:
- District of Columbia
- New Hampshire
- New Jersey
- New Mexico
- New York
- North Carolina
- North Dakota
- Puerto Rico
- Rhode Island
- South Carolina
- South Dakota
- West Virginia