Suing the Government—What Are the Rules

Personal injury lawsuits all involve certain rules. They must involve some form of neglect, there must be a duty of care owed, there should be enough at stake to make the claim worth pursuing, and so on. The defendant, or the party at fault, must also take certain measures to protect themselves.

But what if the offending party was the government? What then?

The truth is there are still actions that may be taken against local, state, and federal government organizations, but these types of lawsuits operate under a separate set of rules from those of regular civil claims against individuals or businesses. One of the most important matters to keep in mind is that of sovereign immunity.

Sovereign Immunity

The concept of sovereign immunity hearkens back to the days when it was forbidden to sue the king. In modern times, this applies to some extent to our government. One may not file a lawsuit against the government except in cases where the government says so. Fortunately, there exist laws on both the federal and state levels that allow for certain claims against government entities.

Federal Tort Claims Act

  • The FTCA allows certain lawsuits to be filed against federal government employees. These claims must follow certain procedures, and there are many strict limitations on what types of claims qualify. A few of these restrictions include:
  • The claim must be permissible under the laws of the state in which the offence occurred
  • The claim must typically involve negligence, not willful conduct
  • The negligent or wrongful conduct involved must have been committed in the course of the defendant’s employment

The process one must follow when filing a claim differs slightly from that of a regular personal injury claim. First, the plaintiff—i.e. the injured party—must file an administrative claim. This is done by filling out a Standard Form (SF) 95 and sending it to the government agency where the defendant—the offending party—is employed. This form must be sent within two years of the incident, so it’s best to file it as promptly as possible.

From there, the agency has six months to respond. If they admit your claim, that may be the end of it. They’ll pay some or all of what you ask for. If, however, they refuse your claim, you’ll have six months to file a lawsuit. If they don’t respond at all, you may file a lawsuit as soon as you wish.

Illinois Court of Claims Act

The Illinois Court of Claims Act establishes the court in which claims against the state government are heard and sets forth rules over what types of claims may be brought. The range is fairly wide, and it includes personal injury suits. The main restriction here at the state level is that the claim must arise from willful and wanton conduct—simple negligence is not accepted.

That aside, if it would be permissible to bring the claim against a civil party, then it can usually be brought against a state government agency or employee in Illinois.
At either the state or federal level, you will want legal assistance. The laws governing these types of lawsuits are highly complex, and you will want help navigating the process. Hart David Carson, LLP, can represent you throughout this process.

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