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What Should I Do If I'm Hit By A Federal, State, or City Employee?

Under normal circumstances, if you are injured in a Nevada car accident, you have the right to sue the negligent driver for compensation. If the driver was acting on behalf of an employer–say, you were hit by a delivery van–then that employer can also be held responsible under the law. But what happens if the driver is a government employee, and at the time of the accident they were working on behalf of a federal, state, or local government agency?

The short answer is that you can still seek compensation for your injuries. But you will need to jump throw a bunch of legal hoops to do so. Personal injury claims against the government are not the same as those brought against individuals or private businesses. This probably should not come as a surprise. After all, the government makes the rules, so you might expect that it would not be easy to sue the government.

Sovereign Immunity

The early American colonies still relied on the common law of the United Kingdom. Under that common law the Sovereign–i.e., the King–could do no wrong. This meant that a subject could never sue the King, since it was legally impossible for the Sovereign to be held liable.

Although the United States abandoned the idea of monarchy, it retained the concept of “sovereign immunity.” Basically, the idea is that you cannot sue a sovereign entity–either the federal or state government, in this case–without its consent. And while sovereign immunity does not automatically extend to municipal governments, most states do extend their own immunity to include their cities and counties.

Waiving Sovereign Immunity

All that said, sovereign immunity is no longer absolute. Both the federal government and the State of Nevada provide a limited waiver of sovereign immunity through legislation. The congressional statute is called the Federal Tort Claims Act (FTCA). At the state level, the law is codified under Chapter 41 of the Nevada Revised Statutes.

The FTCA states that the federal government “shall be liable” for tort claims “in the same manner and to the same extent as a private individual under like circumstances.” In other words, when a federal employee causes a car accident, the United States government may be sued and held liable in the same manner as any other employer. In effect, the federal government waives the sovereign immunity it would normally have in such cases.

Now there are a bunch of caveats. First, the FTCA does not permit any award of punitive damages. Nevada law does allow for such damages in exceptional cases. But in a lawsuit under the FTCA, the court can only award compensatory damages, i.e., compensation for the plaintiff’s actual injuries. Similarly, the FTCA forbids any award of prejudgment interest, which is permitted in Nevada personal injury claims against private parties.

Second, when you sue the federal government under the FTCA, the case must be brought in federal court. That may not sound like a big deal. But it is important to note that personal injury claims are usually governed by state law. And in fact, when you pursue a claim under the FTCA, the federal court is still required to follow state law on substantive issues. So let’s say you are injured in a car accident caused by a United States Postal Service vehicle. You could bring a claim under the FTCA in federal court, which would then have to apply the substantive law of Nevada with respect to ascertaining liability and damages, subject to any exceptions in the FTCA.

Nevada’s own Tort Claims Act follows similar principles to the federal statute. The law applies to accidents caused by either state or local government employees. Obviously, these cases are still tried in Nevada state courts applying Nevada personal injury law. One key difference, however, is that Nevada law strictly caps any personal award against the state or local government at no more than $100,000.

Administrative Claims

Perhaps the most important difference between filing a personal injury lawsuit against a private party and the government is that the latter requires you to first go through an administrative claims process. That is to say, you cannot simply walk into court and file a lawsuit under the FTCA or Chapter 41. You must first notify the relevant government agency of your claim. This notice is designed to give the agency an opportunity to review your claim and potentially offer a settlement.

Now, in many private personal injury cases, it is common practice for both sides to try and negotiate a settlement beforehand. The difference there is that as the plaintiff, you are free to end the negotiations at any time and pursue your case in court. Indeed, you are typically not required to wait any amount of time before pursuing a private tort case.
With government tort claims, however, there is a minimum amount of time you must wait to hear back from the agency. Under the FTCA, a federal agency has 6 months to review and respond to a claim. If the agency denies your claim, or the 6-month period expires and you never hear back, only then can you proceed to file a lawsuit in court.

In Nevada, tort claims are filed with the state Board of Examiners, a three-member body composed of the governor, the attorney general, and the secretary of state. The attorney general’s office is responsible for investigating a claim and recommending to the board whether it should be approved, denied, or settled. When the claim involves personal injury, such as a car accident, the board can require the claimant to undergo an independent medical examination with a physician of its choice.

The critical thing to understand about the claims process is that it needs to be followed to the letter. The law is quite clear about what information the claimant needs to provide, such as the amount of the claim and a “clear and concise” explanation of how the injury occurred. If any information is missing or incomplete, the government may cite that as a reason to reject the claim in its entirety. And since this claims process is a waiver of sovereign immunity, courts tend to narrowly construe any technical violations of the rules in favor of the government, not the claimant.

Time Is Not on Your Side

Indeed, the government tort claims process involves a number of deadlines that are strictly enforced. As noted above, you need to file an administrative claim as the first step in the process. FTCA and Chapter 41 claims must be filed within 2 years of when the injury occurred, which is usually the date of the original car accident.

Once the government takes final administrative action–your claim is denied or not acted upon by the specified deadline–there is then a separate deadline to actually file a lawsuit. Under the FTCA, this statute of limitations is just six months. But again, this six-month clock does not start to run until the government rejects your claim.

As you can see, when a traffic accident is caused by the negligence of a government employee, it is the victim who needs to understand and navigate a far more complex legal system than would typically handle these sorts of claims. It is therefore crucial to work with a qualified Las Vegas personal injury attorney who can guide you through every step of the process. Contact Naqvi Injury Law today to schedule a consultation.