Lapin Law Offices

General

If you are injured by a government, whether federal, state or local, or any of their employees (”Government”), they may be liable to you. However, this is, with regard to all but federal claims, is only because they have “consented” to be responsible. Both the U.S. and Nebraska Constitutions give governments “sovereign immunity” for responsibility for their actions. However, they can “consent” to waive this immunity and be responsible under circumstances they specify.

With regard to personal injury claims, under Nebraska law, a governmental entity is only liable, with a few exceptions, under either the State Tort Claims Act or Political Subdivision Tort Claim Act. Information about the statute of limitations for these claims can be found by clicking here.

When you file a claim, as described below, you should include whatever evidence you have supporting your claim. This could include medical bills, records, reports, wage loss information, photographs and anything else that shows your damages.

Back to top

Definitions Relevant to Nebraska Government Claims

Political Subdivision: encompasses villages, cities of all classes, counties, school districts, public power districts, and all other units of local government.
Political Subdivision Employee: one or more officers or employees of the political subdivision or any agency of the subdivision and shall include members of the governing body, duly appointed members of boards or commissions when they are acting in their official capacity, volunteer firefighters, and volunteer rescue squad personnel.
State Employees: generally one or more officers or employees of the State or any State agency and shall include duly appointed members of boards or commissions when they are acting in their official capacity.
Contractors: of either the State or a political subdivision are not included in the definitions of the State, a political subdivision or either of their employees.

Back to top

Types of Claims That May be Brought Under Nebraska Law

Generally the following personal injury claims may be brought under either the State Tort Claims Act or the Political Subdivisions Tort Claim Act for the negligent or wrongful act or omission of any employee while acting within the scope of his or her office or employment.

Under Nebraska law, no claim can be brought for assault and battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit or interference with contract rights. It also excludes any claim by an employee of the government entity which is covered by the Nebraska Worker’s Compensation Act. Another exclusion is if the employee’s action or inaction is based on a discretionary function. A discretionary function relates to policy judgments. There are several other exceptions.

In addition to a negligent or wrongful act, an “innocent person” may make a claim for injuries or death against the appropriate governmental entity when they are injured during the course of law enforcement officer’s vehicular pursuit. To recover, you cannot be in the vehicle being chased, the driver of the fleeing vehicle is or should be aware the he or she is being pursued, is resisting being caught by maintaining or increasing their speed, ignoring the officer or attempting to elude the officer while driving at unreasonable speeds.

Back to top

Time Limitations and Other Requirements on Nebraska Tort Claims

Before a lawsuit can be filed against the State, political subdivision or employee of either, you must file Notice of the claim with the appropriate person or entity. Whenever you file a claim, you should make sure you have proof that the claim was received. You can send the claim by certified mail, return receipt requested, or in person with a copy to you with a file stamp or other notation that the claim was received.

State Tort Claims

You must file the State Tort Claim Act form with the Risk Manager within two (2) years of the negligent or wrongful act
After the claim is filed, the State has six (6) months to decide what to do on the claim. You cannot do anything during this 6 month period unless the claim is rejected. During this 6 months, the State can agree to pay, deny the claim or do nothing.

If the claim is denied or 6 months has expired you can file a lawsuit. The filing of a lawsuit acts as a withdrawal of the claim. Generally, you have the same two year period to file a lawsuit except that if you if file the Claim with the Risk Manager 18 months or more, but within two years, after the negligent act, you have six months from the first time the claim could have been withdrawn. For example, if the accident happens on January 1, 2009, and you file the Claim on December 31, 2011, you must have your lawsuit on file by December 30, 2012, which is computed as six month waiting period (June 30, 2012) and then another six months.

Political Subdivision Tort Claims

Political Subdivision Tort Claims must be filed within one (1) year of the occurrence. Similar to State Tort Claims, the political subdivision has 6 months to review the claim and you cannot do anything. After either the claim is denied or 6 months expires you have 2 years from the occurrence to have a lawsuit on file.

These Claims must be filed with the “clerk, secretary or other official whose duty it is to maintain the official records of the political subdivision.” Notifying or communicating with an insurance company for the political subdivision does not constitute a proper Claim. In addition, a political subdivision, may, at their discretion, permit claims to be filed with the duly constituted law department. Political subdivision claims must be in writing and provide sufficient information that would provide the political subdivision with notice of a possible claim. Information that should be included are the date of the incident, what happened, why you believe the political subdivision and/or its employees are responsible, a description of your injuries and damages and the amount you are claiming. The maximum any one person can claim against a political subdivision employee is $1,000,000.

Back to top

Tort Claims Against the Federal Government

Generally, tort claims against the federal government are similar to claims against the State. There is a federal form that must be completed and filed with the appropriate entity within two (2) years of the act or omission. The federal government or its agencies have six month to decide what to do on the claim before you can file a lawsuit.

Back to top

Civil Rights Claims

There are other state and federal laws that permit you to recover against the government or its employees. One of the more common claims for personal injuries and other injuries to civil rights is 42. U.S.C. § 1983. The original version of the statute was derived from the Civil Rights Acts of 1871 in response to violence of the Ku Klux Klan. The statute provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.

Generally, to be held liable, the at-fault person must have committed an intentional act; simple negligence is not normally sufficient. However, it is not required to prove the at-fault person specifically intended to violate your civil rights. There are number of civil rights you have that, if violated, give you a right to recover damages against the at-fault person or entity. Under the U.S. Constitution, which you can view by clicking here, several amendments provide you rights, if violated, give rise to a 42 U.S.C. § 1983 claim. For example:

First Amendment:

Denying or failing to provide an opportunity to speak, write or receive information;
Failing to hire, promote or firing someone for the exercise of their freedom of speech (only applicable to government employees)

Access to the courts

Fourth Amendment:

Wrongful arrest, search or seizure

Excessive force

Fifth Amendment:

Unlawfully obtaining a criminal confession such as by beating a suspect

Due process, as to the federal government, deprivation of life, liberty or property

Eighth Amendment

Cruel and unusual punishment

Failure to provide inmates adequate medical care

Fourteenth Amendment

Due process

Equal protection

However, there are many specific requirements, exceptions, immunities, and affirmative defenses to 42 U.S.C. § 1983 claims.

Back to top