The term “discretionary function” is understood to mean a duty or function that necessarily requires the exercise of reason and discretion as to how, when or where the action should be done. Courts have struggled with interpreting this waiver because, to some extent, all most all duties require some discretion. Usually what is considered is whether mandatory regulations require certain specified conduct. So for example, there is some statute that indicates a government worker “shall” as opposed to “may” carry out some course of action. The second element is whether the decision requires some exercise of judgment based on considerations of policy.

Discretionary function immunity is sweeping in depth, and it needs to be considered prior to pursuing any personal injury lawsuit against the government. That said, it does not protect government agencies in all instances. 

Take the recent case of City of Beech Grove v. Beloat, an Indiana Supreme Court case brought by a woman who suffered a trip-and-fall injury on a public street and sued the city for negligent maintenance.

The underlying incident occurred in June 2012 as plaintiff was walking from her home to the library. She began crossing the street and as she did so, she took note of a pickup truck that had stopped a few feet into the crosswalk area. In order to avoid walking right into the truck, she stepped slightly outside of the crosswalk. Suddenly, she heard a snap. She fell to the ground. She looked down to see that her foot was stuck in a deep hole in the ground.

She was unable to get up and had to remain sitting in the middle of the street until two others nearby stopped to help her. One of these individuals drove her to the hospital. It was there she learned she had a broken leg.

Plaintiff filed a personal injury lawsuit against the city, alleging the city negligently failed to maintain the street and that her stepping into that hole caused her to fall and incur medical bills and pain and suffering.

The city responded by denying liability and asserting immunity under the state tort claims act. The city later motion for summary judgment, asserting:

• Plaintiff was unable to prove the cause of her injury;
• City was immune from the lawsuit per the discretionary immunity function provision of the state tort claims act;
• Plaintiff was contributorily negligent.

Although the trial court denied the motion, the appellate court in a split decision granted on the basis that the discretionary immunity exception applied.

The state supreme court granted review and vacated that decision. In so doing, the Indiana Supreme Court ruled the city had failed to demonstrate that the alleged failure to maintain the street was an a policy decision that was made consciously by weighing the risks and benefits – which is what it would need to show to be granted this immunity.

The case was remanded back to the lower court for trial.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Beech Grove v. Beloat, April 5, 2016, Indiana Supreme Court

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Study: U.S. Drivers Increasingly Dangerous, Distracted Half the Time, March 21, 2016, Florida Injury Lawyer Blog

There are two primary exceptions:

• When the person who was served alcohol was under the legal age of 21;
• When the person is known to the establishment as one who is habitually addicted to alcohol.

In a recent case before Florida’s 4th District Court of Appeal, drunk driving injury victims argued the law should also be applicable to an establishment that assumes responsibility to stop patrons from getting behind the wheel drunk and then failing to do so.

Plaintiffs in De La Torre v. Flannigan’s Enterprises, Inc. relied heavily on the “undertaker’s doctrine.” 

The Florida Supreme Court has used the Second Restatement of Torts, sectiosn 323-324A to define the “undertaker’s doctrine,” which involves the liability of third parties who gratuitously undertake the responsibility to render services to another person for that person’s protection. The third party can, by these actions, be held liable for physical harm that results from failure to exercise reasonable care.

There are a number of cases where this assertion has worked. In one case, Massad ex rel. Wilson v. Granzow, a party host took it upon himself to care for a guest who was drunk and had fallen and suffered a head injury. Host allegedly gave the guest a prescription painkiller, which worsened his symptoms, and then left him alone by the pool, where the guest drowned. The court applied the undertaker’s doctrine and the host was found liable.

In another case, Carroll Air Systems, Inc. v. Greenbaum, a business purchased drinks for an employee while he was entertaining clients.Employee later drove drunk and struck a third party, who was injured. The court ruled the employer wasn’t protected by Florida’s limited dram shop law because although employer didn’t furnish the drinks, it had knowledge – actual or constructive – that employee was intoxicated and in no condition to drive. Although the employer was not at the meeting, employer had the ability to control its employees.

But the 4th DCA said these cases are distinguishable from the case against Flannigan’s.

According to court records, a woman went there and drank several alcoholic beverages one evening in 2011. After a while, woman became intoxicated. Staffers at one point stopped serving alcohol to her, observing that she was drunk, and began serving her water. However, no one on staff tried to stop her when she left and got in the wheel of her car.

This was despite the fact that the restaurant had a policy in place to stop drunk patrons from driving. This involved taking the patron’s keys, calling law enforcement or ensuring the person had a sober driver. None of those actions were taken in this case, and the woman got in her car, left and was involved in a drunk driving accident, injuring the passengers.

Passengers later sued the bar, citing the undertaker’s doctrine. They argued that because the bar had this policy – and employees failed to adhere to it – the restaurant should be held liable. They argued the issue was not that the bar served the woman, but that employees failed in the duty they had assumed by way of restaurant policy.

However, neither the trial court nor the appeals court saw it that way. The state does not require establishments to stop people from driving drunk, and those that make efforts to try shouldn’t be punished for doing so, the 4th DCA reasoned.

Still, drunk driving accident victims should consult with an experienced injury lawyer in order to explore all potential avenues of recovery.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

De La Torre v. Flannigan’s Enterprises, Inc., March 9, 2016, Florida’s Fourth District Court of Appeal

More Blog Entries:

Study: U.S. Drivers Increasingly Dangerous, Distracted More Than Half the Time, March 21, 2016, Miami DUI Injury Lawyer Blog

Unfortunately, these seemingly minor fender-benders can result in lasting injuries – and it may not even be immediately apparent to the person injured. That’s because symptoms of whiplash, concussion and other types of musculoskeletal and brain injuries may not be immediately apparent. That’s why it’s always advisable to seek immediate medical attention after a crash, even if you genuinely and overall feel alright.

The mere fact of slow speed and low impact does not necessarily negate a claim of personal injury in a car accident, but it can sometimes make it tougher to prove. Your attorney will likely need to present expert witness testimony in order to overcome the erroneous assumption that because the crash didn’t involve great force, there is no potential for substantial injuries. 

Just as an example, consider that a 2,000-pound vehicle – the average size of a passenger car – traveling 10 mph would hit another object with nearly four tons of force. To suggest it would be impossible to do any damage is incorrect. Still, it’s a common defense in these cases, and your injury lawyer needs to be prepared to counter it.

In the recent case of Rish v. Simao, the Nevada Supreme Court reviewed a trial court decision to grant summary judgment to plaintiff as a sanction against defendant who repeatedly violated an order not to present any evidence as to the low speed/ low impact nature of the crash in question.

The state supreme court ultimately reversed because it found the lower court misapplied the standard it set in an earlier low-impact crash case. In the previous case, the state high court ruled that a defendant could not present evidence from a biomechanical engineer because that witness was not qualified to present that testimony.

However, the court in Rish wrongly concluded that meant a defendant was required to present the evidence of a qualified biomechanical engineer in order to present a low-impact defense. The higher court had only said if the expert witness testimony was going to be presented, it had to come from someone qualified to give it.

In the Rish case, plaintiff was rear-ended in stop-and-go traffic by defendant’s car. At the time of the crash, it was noted there was minimal property damage to both vehicles. Although an ambulance was called, both parties declined medical attention from EMS workers.

But days later, plaintiff’s neck began to ache and his head was throbbing. He sought medical attention, and received treatment.

He later filed a car accident lawsuit against defendant to recover for his injuries.

However, defendant sought to point out that the crash was low-impact, and therefore could not have caused injury. Plaintiff wanted to suppress this argument, and filed a motion to block all mention of the speed of the accident/ damage to the vehicles, on grounds that defense had not presented the expert witness testimony of a biomechanical engineer. Trial court granted this request.

The case was ultimately remanded for retrial, and plaintiff will now have a much steeper hill to climb to collect damages.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Rish v. Simao, March 17, 2016, Nevada Supreme Court

More Blog Entries:

Study: U.S. Drivers Increasingly Dangerous, Distracted Half the Time, March 21, 2016, Miami Car Accident Lawyer Blog