Governmental Tort Liability

• Author: Kevin R. Culhane
• Pages: 520-559

12-520

Chapter 12

Governmental Tort Liability

§1200 Introduction

§1210 Definitions

§1220 Dangerous Condition of Public Property

§1230 Occurrence Interrogatories

§1240 Immunities and Defenses

§1250 Miscellaneous Liabilities of Public Entities

§1260 Liability of Public Employees

§1270 Damages in Public Liability Cases

§1280 Affirmative Defenses and Denials

§1290 Investigatory Interrogatories

§1298 Deposition Checklists

§1200 Introduction

§1201 Analyzing Plaintiff’s Claim: Liability of Public Entities

§1202 Analyzing Plaintiff’s Claim: Liability of Public Officers or Employees

Checklist: Analyzing Government Tort Liability Claims

§1203 Defenses in Government Tort Liability Cases

§1210 Definitions

§1220 Dangerous Condition of Public Property

§1221 “Public” Status of Property

§1222 Partial Ownership by Public Entity

§1223 Control of Nonowner Property

§1224 Identification of Parties Who Constructed the Subject Premises

§1230 Occurrence Interrogatories

§1231 Knowledge of Incident

§1232 Details of Occurrence

§1233 Injuries to Plaintiff

§1234 Knowledge and Notice of Defect

§1234.1 Inherent Dangers and lmputed Notice

§1234.2 Circumstantial Notice (Subsequent Repairs)

§1234.3 Prior Warnings

§1240 Immunities and Defenses

§1241 Reasonableness of Entity’s Conduct

§1242 Design Immunity

§1242.1 Authorization by Public Body

§1242.2 Reasonableness of Approval

§1242.3 Injury Caused by Approved Feature of Design

12-521 governMental tort lIabIlIty

§1242.4 Changed Circumstances

§1242.5 Failure to Warn

§1243 Defective Traffic Signals

§1250 Miscellaneous Liabilities of Public Entities

§1251 Police and Correctional Activities

§1251.1 Medical Care to Prisoner

§1251.2 Negligent Retention of Unfit Police Officer

§1252 Duty to Warn of Impending Release

§1253 Public Medical and Hospital Facilities

§1253.1 Failure to Provide Sufficient Equipment or Personnel

§1253.2 Failure to Admit Medical Facility

§1260 Liability of Public Employees

§1261 General Rules of Public Employee Liability

§1262 Police and Correctional Activities

§1263 False Arrest and Imprisonment

§1264 Injuries to Prisoners

§1265 Use of Excessive Force During Arrest

§1266 Public Hospital and Health Facilities

§1267 Motor Vehicle Negligence

§1270 Damages in Public Liability Cases

§1271 General Damages

§1272 General Damages – Death of Decedent

§1273 Special Damages

§1273.1 Defendant’s Contentions re Plaintiff’s Special Damages

§1273.2 Defendant’s Contentions re Failure to Mitigate Damages

§1274 Compensation From Collateral Sources

§1280 Affirmative Defenses and Denials

§1281 Contentions and Related Facts

§1282 Alcohol and Drugs (Plaintiff)

§1283 Plaintiff’s Contributory and Comparative Negligence

§1283.1 Imputed Contributory or Comparative Negligence

§1284 Assumption of Risk

§1285 Pre-existing Injuries

§1286 Seat Belt Defense

§1287 Joint and Several Liability

§1290 Investigatory Interrogatories

§1291 Third-Party Information – Witnesses

§1291.1 Relationships and Acquaintances

§1292 Statements Regarding Incident

§1293 Expert Identification

§1294 Photographs

§1294.1 Charts and Diagrams

§1295 Surveillance

§1296 Insurance

§1297 Due Diligence in Preparation of Response

§1298 Deposition Checklists

§1299 Deposition of Defendant

§1299.1 Defendant – General Background

§1299.2 Actions Against Public Entities – Direct Liability

§1299.3 Liability of Public Employees – Vicarious Liability of Public Entities

§1299.4 Public Entity Liability for Medical Malpractice

§1299.5 Defendant’s Relationship to Plaintiff

§1299.6 Specific Errors and Omissions

§1299.7 Medical Malpractice – Defendant’s Contentions Regarding Plaintiff’s Conduct

§1200 Model InterrogatorIes 12-522

§1299.8 Public Entity Liability for Vehicular Negligence

§1299.9 Plaintiff’s Injuries and Treatment

§1299.10 Plaintiff’s Damages in Government Tort Liability Cases

§1299.11 Additional Affirmative Defenses

§1299.12 Statements by Parties, Witnesses

§1299.13 Photographs Re: Injuries

§1299.14 Surveillance Conducted by Opposing Party

§1299.15 Insurance

§1299A Deposition of Plaintiff

§1299A.1 Plaintiff – General Background

§1299A.2 Actions Against Public Entities–Direct Liability

§1299A.3 Liability of Public Employees – Vicarious Liability of Public Entities

§1299A.4 Plaintiff’s Injuries and Treatment

§1299A.5 Plaintiff’s Damages in Government Tort Liability Cases

§1299A.6 Affirmative Defenses and Denials

§1299A.7 Statements by Parties, Witnesses

§1299A.8 Photographs Re: Injuries

§1299A.9 Surveillance Conducted by Opposing Party

§1200 Introduction

Many tort claims involve consideration of the potential liability of public entities and employees. Due to the

expansive nature of modern governmental activities, it frequently happens that the activities of a public entity or

officer contribute to injuries that would be compensable if caused by a private individual. Accordingly, the modern

practitioner must be aware of both the availability of tort remedies against public entities as well as the statutory

limitations thereon. For this reason, this chapter deals with interrogatory discovery in the context of claims against

public entities and officers.

§1201 Analyzing Plaintiff’s Claim: Liability of Public Entities

To a great extent, the tort liability of public entities is still affected by the common law doctrine of sovereign

immunity, which bars torts suits against public entities on the theory that the sovereign can do no wrong. This doctrine

has been widely recognized throughout the United States, and in the broadest sense means that unless the immunity

has been waived or abrogated by statute, a tort action against a public entity cannot proceed.

The extent to which a given jurisdiction has waived or altered the common law rule of sovereign immunity

depends upon the substantive law of that jurisdiction. Most states have some form of “Public Liability Act” which

specifies the circumstances under which governmental entities may be liable for tortious conduct; some states provide

a broader consent to suit subject to the statutorily established immunities. In order to properly evaluate a case it is

important for the practitioner to become thoroughly familiar with the nature and extent of governmental tort liability

in his or her particular jurisdiction.

Notwithstanding that the substantive liability of governmental entities varies from state to state, there are certain

recurring themes that characterize the substantive law of public entity tort liability. For example, numerous states

recognize a modified form of respondeat superior liability by providing that a public entity is liable for the wrongful

acts of a public employee committed within the scope of employment. This in turn means that many of the interroga-

tories contained in other chapters of this book have equal applicability here, e.g., the public entity may be vicariously

liable for injuries caused by a public employee while negligently operating a motor vehicle.

In addition to vicarious liability situations, the public liability acts of many states impose liability on the public

entity in other recurring factual situations, as when the public entity is liable for the dangerous condition of public

property or the failure to perform a statutorily mandated duty. Many of these direct liability cases may be substantial-

ly affected by statutory immunities, and the interrogatories contained in this chapter address these recurring factual

situations as well as common immunity defenses.