Individuals who have been injured in a car accident, by a doctor, or by another party often decide to bring a personal injury suit against the wrongdoer. The majority of Americans can be sued individually and held liable for injuries that they caused. There are however exceptions to when individuals can be sued for damages they caused.
Typically, government agencies, cites and police departments cannot be sued for tort claims (actions that lead to harm or injury) under the principle of sovereign immunity. Sovereign immunity originally developed to protect the king, or the sovereign, from suit. Sovereign immunity has carried over into our legal society and protects government agencies from tort lawsuits. Since government agencies can only cause harm through their representatives, or employees, this protection extends to government employees. The Federal Government passed the Tort Claims Act in response to sovereign immunity. The Tort Claims Act allows federal governments to be sued if the injury or harm was caused by a government employee who was acting in the scope of their employment.
North Carolina also has a state Tort Claims Act which allows the state and police departments to be sued when an injury was caused by a state employee or police officer acting in the scope of his/her employment.
Both the federal and North Carolina’s Tort Claims Act allows for personal injury suits for car accidents, medical malpractice, wrongful death, and slip and falls. Examples of when the Tort Claims Acts apply include, a government vehicle involved in a car accident while on duty or an emergency medical technician who works for the county and injures someone while treating them. In both cases, the government and the county can be sued.
Personal Injury Claims Against Police Officers and Police Departments
Like other personal injury suits, the injured party will have to show negligence on the part of the police officer in order to have a successful suit. In order to show negligence, the injured party will need to show that:
- The police officer owed the victim a duty of care. This element will almost always exist simply because of the nature of a police officer’s job, which is to protect the public from harm;
- The police officer breached the duty of care;
- The breach caused the victim’s injury; and
- The injury resulted in compensable damages.
Police officers are permitted to use whatever force is necessary during an arrest or to defend themselves against injury. North Carolina law specifically allows police officers to use whatever force is necessary if they believe they are in danger or that it is necessary to protect a third party. This includes deadly force. More and more in the news there have been stories about police officers using excessive force. Excessive force is not permissible and can result in liability for both the police officer and the police department. The United States Supreme Court has weighed in on the use of police force and determined that unless there is the threat of serious harm or death to others or it is needed to prevent escape, a police officer cannot shoot a suspect fleeing the scene. In the case of excessive force by a police officer, governmental immunity is unlikely to apply and a claim will be permitted against the police officer and the police department.
Personal Injury Claims Against Cities
In order to sue a city, like Charlotte, the injured party would need to show that:
- The city itself, as an agency, owed the victim a duty of care;
- The victim was injured by a city employee or was injured while on city property;
- The breach of the duty of care caused the victim’s injury; and
- The injury resulted in compensable damages.
In addition to civil personal injury claims, police officers and other government employees can be held criminally liable for their actions. Unlike in personal injury claims, where the victim files suit, individuals cannot file criminal actions against other individuals; it is up to state and federal prosecutors to do that. The victim of a personal injury suit may however be called to testify in a criminal suit.
Recoverable damages are the same as those available in any personal injury case and include:
- Medical expenses - hospital expenses, doctors visits, medical assistive devices, therapies such as physical or speech, and prescriptions.
- Lost wages. If the injuries are severe enough to cause time lost from work, then lost wages are available.
- Pain and suffering.
- Punitive damages. These are not available in Tort Claims Act cases.
Under North Carolina’s Tort Claims Act, if the injured party successfully proves negligence, damage payments are limited to $1 million, unlike standard cases where damages can be unlimited. In addition, the doctrine of contributory negligence applies in North Carolina which bars recovery if the injured party contributed to the injuries.
Federal Tort Claims Act claims must first be filed with the agency alleged to have caused the injury. So for example, if the injury occurred as the result of an FBI agent driving recklessly and causing a car accident, the claim would first be filed with the FBI. The claim is first considered to be an administrative claim while pending before the agency. Once a decision has been made, or if the agency fails to make a decision in 6 months, then the injured party can file suit in federal District Court.
The North Carolina Industrial Commission, the agency responsible for hearing workers’ compensation claims and other matters, is the agency tasked with hearing Tort Claims Act violations. The plaintiff in a case can appeal Industrial Commission decisions to North Carolina’s Court of Appeals.
As with all claims, there are statutes that must be observed. Failure to file timely could preclude a claim from being brought.
Discuss Your Personal Injury Case with Our Charlotte, North Carolina Attorneys
The Charlotte, NC lawyers at Rosensteel Fleishman, PLLC are experienced personal injury lawyers. They are available to discuss your personal injury claim with you and help you navigate the legal process if there is a legal claim. Please contact our office at 704-714-1450. There is no fee for an initial consultation.