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Loopholes In Personal Injury Law: Understanding Immunity Exceptions And Waivers

by Layla Bryant

Property owners are responsible for the condition of their property.  Accidents caused by negligence--slippery floors, defective constructions, improper upkeep, etc--create a liability for the owner of the premises; this legal concept is known as premises liability.  However, many people who attempt to file a premises liability claim against a property owner are shocked to learn that the owners have immunity--and that they cannot be sued for personal injury damages.  A few examples of property owners who may, in some cases, claim immunity are:

  • Federal, state, and municipal governments (including roads, parks, buildings, etc.)
  • Charities and non-profit organizations
  • Immediate family members of the injured person
  • Foreign and tribal governments
  • Employees of government agencies and contractors
  • Volunteers

Most people spend a considerable amount of time on property owned by one of these entities.  So, what happens if you're injured on their premises?  Should you just give up--or is there a way around immunity? 

Exceptions and Waivers

This type of immunity from liability claims is derived primarily from the Eleventh Amendment to the US Constitution, but it has been slowly eroded since Congress--recognizing the injustice of this longstanding legal tradition--passed the Federal Tort Claims Act in 1946.  The Tort Claims Act essentially created waivers and exceptions to immunity, along with strict regulations for invoking them.  Common exceptions include personal injury claims that:

  • Involve discrimination
  • Are covered by preexisting contractual agreements and arbitration procedures
  • Result from wanton negligence
  • Could have been reasonably avoided
  • Concern the actions of an employee or representative of an immune entity who acts illegally or negligently
  • Occur on the premises of a person or organization who receives federal funding

Most states passed laws similar to the Federal Tort Claims Act.  (A few states--Connecticut, Kentucky, Illinois, North Carolina, and Ohio--even have special courts or boards to investigate and adjudicate such claims.) Today, nearly every jurisdiction has exceptions and waivers.

Strict Guidelines and Varied Interpretations

Most exceptions, however, involve rules and regulations that are distinct from typical personal injury suits. First, you must file a notice of claim to each and every person or agency who may be responsible for your injury--and you may have only 60 days from the date of your injury to deliver the claim notice.  In some cases, in order to justify your claim notice, you must show that the person or organization is federally funded.  After your notice of claim is formally denied, you may proceed to file a suit in court.  At each stage of the process, strict timelines are imposed on you: the slightest oversight could result in the dismissal of your claim.

Dozens of legal statutes and court rulings--many of which are contradictory--govern immunity from premises liability claims.  Additionally, each state and municipality has its own guidelines and regulations.  If you've been injured on property owned by an entity who may be immune to a personal injury suit, you may still have a viable claim for damages--but you need the immediate assistance of a qualified attorney.  For more information, contact Putnam Lieb or a similar firm.