A personal injury case that involves a government employee or agency such as a city or state presents unique challenges in Pennsylvania. Such cases occur when struck by a government vehicle, or a slip and fall because of a dangerous property condition at a state-owned building.
Government employees and agencies are protected by the Pennsylvania Sovereign Immunity Act. This Act is set out in Pennsylvania Consolidated Statutes Title 42, Section 8522. This law requires the State to “waive,” or release, its sovereign immunity in certain types of injury cases. In other words, the state allows itself to be sued and to be held liable for damages — but only in specific instances that are listed in the Act.
The Sovereign Immunity Act allows nine exception for lawsuits against the Commonwealth of Pennsylvania for injuries resulting from a government employee or property:
1) Vehicle liability – the operation of any motor vehicle in the possession or control of a Commonwealth party;
2) Medical-professional liability – acts of health care employees of commonwealth agency medical facilities or institutions or by a commonwealth party who is a doctor, dentist, nurse or related health care personnel;
3) Care, custody or control of personal property in the possession or control of Commonwealth parties; however, sovereign immunity is not waived as to the “use of nuclear and other radioactive equipment, devices and materials”;
4) Commonwealth real estate, highways and sidewalks – dangerous conditions of real estate;
5) Dangerous conditions created by potholes and sinkholes on Commonwealth highways;
6) Care, custody or control of animals in the possession or control of a Commonwealth party, including police dogs and horses;
7) Liquor store sales at Pennsylvania liquor stores by employees of the Pennsylvania Liquor Control Board “if such sale is made to any minor, or to any person visibly intoxicated, or to any insane person, or to any person known as an habitual drunkard, or of known intemperate habit”;
8) National Guard – acts of members of the Pennsylvania military forces; and
9) Toxoids and vaccines – liability may be imposed on the Commonwealth a toxoid or vaccine is not manufactured in Pennsylvania, and Pennsylvania must take responsibility for it.
The Sovereign Immunity Act limits recovery against a Commonwealth party to a maximum of “$250,000 in favor of any plaintiff or $1,000,000 in the aggregate.” There are five types of damages allowed: (1) past and future loss of earnings and earning capacity; (2) pain and suffering; (3) medical and dental expenses; (4) loss of consortium; and (5) property losses, except that property losses cannot be recovered in actions involving dangerous conditions created by potholes and sinkholes on Commonwealth highways.
Many states use the same statute to govern both tort claims against the state and tort claims against local and municipal governments. Pennsylvania does not. Claims against the Commonwealth of Pennsylvania are governed by the Sovereign Immunity Act as explained above; claims against local or municipal governments such as townships and cities, are governed by the Political Subdivision Tort Claims Act.
The Political Subdivision Tort Claims Act states that a local or municipal government can be held liable for specific types of injury claims if the government employee responsible was acting “within the scope of his office or duties” and if the injured person could have sued if the person who allegedly caused the harm was a private person. This Act is set out in Pennsylvania Consolidated Statutes Title 42, Section 8542.
Like the Sovereign Immunity Act, the Political Subdivision Tort Claims Act specifies certain categories of injuries for which a lawsuit may be brought:
1) The operation of a motor vehicle in the possession or control of the local agency.
2) The care, custody or control of personal property of others in the possession or control of the local agency.
3) The care, custody, or control of real property in the possession of the local agency.
4) A dangerous condition of trees, traffic control, or street lighting under the care, custody, or control of the local agency.
5) A dangerous condition of utility facilities owned by the local agency.
6) A dangerous condition of streets owned by the local agency.
7) A dangerous condition of sidewalks within the rights-of-way of streets owned by the local agency.
8) The care, custody or control of animals in the possession or control of a local agency.
Also like the Sovereign Immunity Act, the Tort Claims Act limits the amount of damages recoverable against a local agency, and restricts types of damages which may be recovered. It limits damages against a local agency to a maximum of $500,000 either by a single plaintiff or in the aggregate. In addition to recognizing the types of damages allowed under the Sovereign Immunity Act, the Tort Claims Act allows recovery for loss of support, and restricts recovery for pain and suffering to, (1) Death or (2) “only in the cases of permanent loss of a bodily function, permanent disfigurement or permanent dismemberment where the medical and dental expenses are in excess of $1,500.” Unlike the Sovereign Immunity Act, the Tort Claims Act also specifically provides that if there is insurance coverage for the plaintiff’s damages, any insurance recovery must be deducted from any awards against the local government.
Under either claim, timeliness is also important. Whether or not you have determined you have a case that fits within the exceptions noted above, notice must be given to the state or local government agency (and to the Attorney General if the claim is against the state) that caused the injury within six months of the occurrence of the underlying incident. This notice must include:
1) name and residence address of the claimant
2) date, hour, and approximate location of the accident, and
3) name and residence or office address of any attending physician.
Failure to send this written notice within six months will likely result in the dismissal of any lawsuit the claimant later tries to file over the incident.
As you can see, recovering damages against the government is more difficult than recovering against a party with no immunity. The Acts discussed here severely limit an individual’s rights to use the courts to seek justice. The Acts themselves are confusing, ever-changing, and fraught with pitfalls. The Thistle Law Firm is experienced in these claims and can help you understand your legal options at 215-568-6800.