F.S. 768.28 is the state’s waiver of sovereign immunity law, outlining the various scenarios under which the state will agree to be sued. The state does set a number of limitations and guidelines. For example, a government worker can’t personally be held liable for harm unless they intentionally caused it. Damages against the government are capped at $200,000 for individuals and $300,000 for multiple parties harmed by the same action. Punitive damages and interest can’t be awarded, and there are other limitations if defendant in such a case is a public health agency (including a hospital) or law enforcement agency.

There is a also a special provision dealing with time limits. If you are injured by the state government, you have to file a notice of claim with that particular agency, and only after that claim has been rejected can you file your lawsuit. You must give the state agency at least 180 days to respond, and all this has to happen within the three-year window for personal injury cases and the two-year window for wrongful death lawsuits.more

Recently, the California Supreme Court took on the issue of a personal injury lawsuit in which a plaintiff failed to file his claim with the government agency within six months of the claim’s accrual, as required under that state’s law. Unfortunately, failure to abide the rules set forth in the Government Claims Act did not work out in plaintiff’s favor.

According to court records in the case, plaintiff allegedly suffered personal injury at a high school football game, in which he was an athlete. Although a trainer told the coach the player might have suffered a concussion, the player was still allowed to participate in full contact practice just a week later. He was later diagnosed with double concussion syndrome.

It was undisputed that based on these facts, the claim accrued on Oct. 31, 2011, which was the date he was diagnosed.

However, plaintiff did not file his personal injury claim against the school district, a government agency, within that six month window. Instead, he hired a lawyer after that time period elapsed and presented the district with an application to file a claim more than a year later. The district took on action. The law states that if a public agency doesn’t act on a claim within 45 days of receiving it, it is to be considered denied. That meant the application was deemed denied by December 2012. Then in October 2013, plaintiff’s attorney filed for a relief from the obligation to present a claim before bringing the lawsuit. Such a petition has to be filed within six months after a late claim application is denied. The court rejected this petition, finding it should have been filed in June 2013. The appellate court confirmed and ultimately, so did the state supreme court.

Although plaintiff made a series of arguments for why the court should accept his claim, the court held the plaintiff, “simply failed to comply with the claims statutes, missing an easily ascertainable deadline.”

Therefore his claim was dismissed.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

J.M. v. Huntington Beach Union High School District, March 6, 2017, California Supreme Court

More Blog Entries:

Miami Judge Forges Ahead With Air Bag Cases After Takata Pleads Guilty, March 2, 2017, Personal Injury Lawyer Blog

However, as the recent case of Grimes v. Family Dollar Stores of Florida reveals, when those landscaped areas have well-worn pedestrian tracks indicating it is regularly used as a shortcut, the potentially for liability is increased.

That’s according to Florida’s Third District Court of Appeal. The court conceded there were a number of prior cases (on which defendants relied) that established property owners/ controllers aren’t responsible when pedestrians/ shoppers take a shortcut through landscaped features that aren’t designed for or used by pedestrians. (Specifically, the court relied on Wolf v. Sam’s East, Inc.)more

In Wolf, plaintiff tripped over a tree root as he took a short cut through a parking lot landscaped feature. The court ruled that when a person walks into a landscaping area that contains trees, grass, mulch and other features that make it clear that area isn’t supposed to be used for walking, pedestrians assume the risk in doing so – especially when there are concrete walkways that are available for their use.

But Wolf wasn’t applicable here, the 3rd DCA ruled.

According to court records in the trip-and-fall lawsuit of Grimes, plaintiff was making her way through a parking lot to a store located in a shopping plaza. She walked across one of the landscaped areas directly across from the store. This area was well-worn from use by other walkers. While crossing this feature, she tripped over a piece of re-bar that was sticking out of the ground. As a result of her fall, she suffered injuries to her knee.

She later sued the store (commercial tenant), property owner and the landscaping company that was responsible for maintenance.

Defendants responded with the ruling established in Wolf. Trial court granted defense motion for summary judgment on these grounds.

On appeal, the 3rd DCA reversed with regard to the property owner and landscaping company. (As far as the commercial tenant, the court ruled that company didn’t have any control over the landscaped area in a parking lot shared by several other commercial tenants.)

Generally, property owners have a duty to business invitees to:

• Keep the property in reasonably safe condition;
• To warn of latent or concealed dangers about which the property owners knows or should have discovered through the exercise of due care (and which are not known or obvious to the invitee).

The court wrote that if the parties responsible for parking lot maintenance may have had a duty to anticipate harm in that footpath because, as the well-worn area suggests, people had been using it as a walkway for some time.

What’s more, the hazard in this case was not a natural one (i.e., a tree root), but rather a not-so-obvious, man-made length of re-bar sticking just a few inches off the ground.

The court did not make a decision on whether the defendants were negligent, but rather determined there were triable issues of material fact for which they could be found liable, and the case should proceed to trial in order for those facts to be established.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Grimes v. Family Dollar Stores of Florida, May 4, 2016, Florida’s Third District Court of Appeal

More Blog Entries:

Fort Lauderdale Injury Lawsuit Filed After Bounce House Blows Away From Beach, May 10, 2016, Fort Lauderdale Trip and Fall Accident Lawyer Blog