Nuts and Bolts: An Overview Of Claims Against a Public Entity [Government Owned Companies]
Before you can file a law suit against the government or a public entity, you must first notify the public entity of your claim. This article covers the procedures you must follow before you can recover for your injuries. You were injured due to the City's negligence, here is what you need to know!
PROCEDURAL REQUIREMENTSYou may need to sue the government, or a public entity, for a variety of reasons: You have sustained serious injuries due to a nasty fall on a city sidewalk, or for a fatal collision on the public highway, or for harassment by a city employee (think San Diego Mayor Bob Filner.) There are countless ways a public entity could be a defendant.
If you have a possible claim against a public entity defendant, your claim will be tied together with the rules set out by the California Tort Claims Act ("CTCA"). Failure to satisfy the CTCA claim requirements will result in your lawsuit being barred. Therefore, the best (and safest) practice is to consider the claims broadly, and complete the requisite government claims. If it turns out that you do not have a claim against the government entity, you can always withdraw the claim, but not vice versa.
Consulting with an experienced attorney is always the best alternative. Most law firms dedicated to this area of law would provide a free consultation. Thus, you should consult with an attorney.
Present a Written Claim Within Six Months of the Incident Occurring.Before suing a public entity, *the plaintiff [YOU] must present a timely written claim for damages to the entity* that caused the harm. Most personal injury victims have two years to file a lawsuit for injuries against a private tort-feasor. However, claims against public entities must be filed within 6 months after a cause of action accrues.
Unfortunately, the clock begins to tick on the claim*s six-month deadline at precisely the time most people are consumed by their urgent medical needs, employment issues, and the challenge of balancing life after a traumatic event. Nevertheless, this is a statutory requirement that must be met. Often, by the time a potential client has contacted you, the time for a claim may have already expired.
Within 45 days after serving the written claim, the public entity must provide a written notice of its action on a claim. The public entity may: 1) reject the claim entirely; 2) accept it in full; 3) reject it in part and accept the balance; or 4) compromise. If the entity fails to respond to the claim, the claim is considered rejected by operation of law on the 45th day, and the claimant then has two years from the date that the injury occurred to file suit. However, if the public entity responds to claimant*s claim within the 45-day period, which it often does, claimant only has six months to file suit.
To protect your claim, calendar the six-month statute of limitation to file a written claim, and all the applicable deadlines discussed above, as soon as the incident occurs.
Again, this is a complex area of the law and provides plenty of pitfalls for the unwary. Consulting with an experienced attorney right away is most critical in preserving your right to recovery.
Know How to Resuscitate a Time-Barred Claim.Though challenging, there are a limited number of circumstances where you may resuscitate a time barred claim.
Under California law, late claims against public entities are allowed under a narrow set of circumstances. A late claim can be excused if it is due to *mistake, inadvertence, surprise, or excusable neglect.* Of course, the claimant [YOU] also has to establish that allowing the late claim will not prejudice the public entity in its investigation. Exceptions are also permitted where the claimant was a minor at the six-month time bar, or unable to file a timely claim due to physical or mental incapacity. Under these circumstances, you may submit an application for leave to present a late claim.
Keep in mind that ignorance of the six-month time period is not an excuse and the legislative board of directors have discretion to bar the claim for being untimely. The best practice is to try to find facts that fall within the above exceptions.
If none of the above exceptions apply, you may file the claim and wait for the public entity to respond. If the public entity fails to challenge the claim for its untimeliness within 45 days, the public entity will have waived any defense as to the time limit for presenting a late claim and the claim is treated as timely.
The public entity raising the defense of timeliness must follow strict requirements. The notice denying the claim must be mailed within the 45 day period and must contain substantially the following language: *The claim you presented to the (insert title of board or officer) on (date) is being returned because it was not presented within six months after the event or occurrence as required by law.* If the letter does not clearly state the claim is rejected due to its timeliness then the defense is waived.
If the late claim involves a public entity other than a city (i.e., public development agency, or public charter school), you may also consider looking up the entity on the Secretary of State*s website or the local county clerk*s office to make sure the public entity has compiled with Government Code section 53051 requirements. In California, every public entity is required to register the following information with the state: legal name, official mailing address, name and address of each member of the governing body, name, title and address of the chairman, president and other officers. If this information is not recorded, inaccurate, or incomplete within 70 days after the accrual of the cause of action, the public entity is barred from raising a defense of untimeliness and enforcing the CTCA rules for its benefit.
If all else fails, you may consider filing your claim in a federal court where the six-months written claim requirement is extended to two years.
Specific Information Is Required When Presenting Your Written Claim.In addition to its strict time restrictions, CTCA also requires that written claims contain a specific set of information including the claimant*s name, address, preferred address for response to be sent, a general description of the incident including date, time and location where the incident occurred, and the damage it caused, the names of any public employees causing or contributing to the harm suffered, and whether the amount claimed is less than $10,000.
If the amount claimed is less than $10,000, a good practice is to provide a breakdown of the case damages. If the amount claimed exceeds $10,000, then no computation is necessary. You will, however, need to indicate whether the case is a limited or unlimited civil case.
Within 20 days after receiving the plaintiff*s claim, the public entity must give the claimant written notice of any substantial defects or omissions that prevents the claim from substantially complying with the CTCA rules. If the entity does not challenge the content in that time period, they will have waived this defense.
Again, the best thing to do when it comes to serious injury cases involving government entities is to find an experienced attorney. At Roshanzamir Law we are dedicated to helping individuals who have sustained a serious injury due to the negligence of others, government entities or individuals violating our client's rights. If injured on a public owned property, right away consult with attorneys who understand and have experience in the nuances of California Tort Claims Act.