Written by attorney Timothy R. Miley

Government Immunity in a Wrongful Death Lawsuit

Family members may file a wrongful death lawsuit or claim after a loved one dies as a result of another person’s negligence. An example would be a drunk driver in a traffic accident or a truck driver who runs a red light and slams into a passenger car. But in certain circumstances, there may be immunity from this type of case if it involves a government employee or agency.

The Federal Tort Claims Act (FTCA) oversees claims against the federal government. In West Virginia, the Governmental Tort Claims and Insurance Reform Act applies to claims against political subdivisions (municipalities, etc.). The West Virginia Code also dictates the procedures for filing against a state agency.

Can the deceased’s family file a lawsuit against a government employee or entity, or are they immune?

Immunity is designed to protect government entities. In West Virginia political subdivisions, for example, government entities are generally protected from liability if death is the result of:

  • execution or enforcement of court orders;
  • civil disobedience, riot, or failure to provide (or method of providing) police, law enforcement, or fire protection;
  • snow or ice or other temporary, natural conditions on public walkways (unless the government’s negligent acts led to the conditions);
  • natural conditions of unimproved property; and
  • other situations outlined in the Governmental Tort Claims and Insurance Reform Act.

Exceptions to government immunity from liability include traffic accidents. So if a government employee who, while performing duties within the scope of employment, causes an accident that kills another driver, the family may pursue compensation in a wrongful death lawsuit.

Other situations in West Virginia that may allow surviving family members to pursue a wrongful death claim against a political subdivision include:

  • failure to keep public roads in repair and free of nuisance;
  • negligence of government employees occurring on grounds of government buildings; and
  • when a government employee acts negligently in performing his or her duties, within the scope of employment.

What else should I know about filing a claim against the government?

West Virginia allows two years from the cause of action to file a claim. The Federal Tort Claims Act also has a two-year statute of limitations.

In West Virginia and under the FTCA, claimants cannot recover punitive damages from the government. Further, West Virginia caps noneconomic damage recovery from political subdivisions at $500,000. State rules dictate damage recovery under FTCA.

A few differences exist between claims against governments in West Virginia and claims against the federal government. For example, West Virginia may allow jury trials. However, the FTCA generally bans trial by jury.

In claims against West Virginia political subdivisions, claimants must not specify the amount of damages sought. But under the FTCA, claimants must specify the amount of damages they seek.

Accidents that involve a government employee can have several challenges, and the above-mentioned tips are far from the only things you should know about a claim against the government. Other state or local laws may apply.

To understand if government immunity applies and to learn more about the process and requirements to file a wrongful death lawsuit, contact The Miley Legal Group at (304) 931-4088.

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