Imagine it is a beautiful summer’s day. The sun is shining bright and the sky is clear. So, you decide to ride your bike to enjoy your day. However, while riding your bike along the bike path your front tire hits a pothole, sending you over your handlebars, breaking your wrist and damaging your bike in the process. Where do you go from here?
Determining liability in sidewalk and street accidents is a challenging process, particularly when you are determining how to file a claim. Certain cities and states are the sole governing body, while others have overlapping jurisdictions, which can cause confusion when filing your claim with the correct office. The plaintiff also must prove that the sidewalk or the street that caused their injury was in an unreasonably unsafe condition and that the city, state, or property owner knew of the condition or should have known of the condition. Taking photos at the scene to show the condition of the roadway at the time of the incident and having eyewitnesses can strengthen your claim.
Beyond that, you must also file your claim within a certain amount of time for your claim to be considered, as the Tort Claims Act created a procedure to bring forth any claims or suits against public entities. All claims must be filed within certain time constraints, and once filed the city has a certain amount of time to answer. If the city denies the claim, the claimant has six months from the day of the rejection to petition the court for relief. The act also mandates that “all claims for money damages against a public entity must be presented in writing to the public entity prior to filing suit.” However, if the city does not respond to the tort claim within the 45 days the claimant has two years to file a suit. If you do not file within the time constraints, your claim may be barred, so you must check with your city or state to learn about the appropriate amount of time for you to notify them of a claim.
There are a few exceptions when the plaintiff has failed to file a claim on time. The failure to filing a tort claim “may be forgiven where the plaintiff was reasonably unaware that the defendant was a public employee acting with the course and scope of his or her employment.” Other aspects taken into consideration when looking over late claims are based on the age and mental capacity of the plaintiff. If the plaintiff was a minor “any delays caused by the parents or attorneys are not attributable to the minor,” and the claim may be accepted. While, if the plaintiff was mentally incapicitated and has proof of their inability to meet the time requirements, their rejection may also be overturned. Despite these exceptions, the plaintiff still must have proof that they were diligent “in pursuing the late claim” in order for their denial to be overturned.
While the Tort Claims Act acts as a guide for plaintiff’s to correctly file a claim against a public entity or overturn a denial of a claim, it is also used to protect these same entities. The Tort Claims act can protect public entities if mistakes are made during the initial filing of the claim. The public entity may file a dismissal of the case or deny the claim for being incorrectly filed. For these reasons, it is important to retain a seasoned personal injury attorney San Diego to help you navigate your claim and the court process.
To learn more about your rights contact an experienced personal injury attorney La Mesa at Acclaim Law Group. We will advise you on the steps going forward and answer any pressing questions you may have. Call Brett Geruntino, Esq. at (858) 252-0781.
Disclaimer: While we always seek to establish accuracy when publishing articles, this piece is not intended to provide legal advice, and should not be used as such. Each individual case will differ and should be discussed with an attorney or legal expert. If you would like to inquire about pursuing a claim against your insurance company, please contact a San Diego injury lawyer at (858) 252-0781 or email email@example.com
 Tyson, S. P. (n.d.). Procedural Issues of the Tort Claims Act. 15. Retrieved from https://www.cacities.org/getattachment/724cf4ef-006c-4166-97c5-6e8ecb0e548c/LR-Tort-Claims-Article-REVISED.aspx
Tyson, S. P. (n.d.). Procedural Issues of the Tort Claims Act. 15. Retrieved from https://www.cacities.org/getattachment/724cf4ef-006c-4166-97c5-6e8ecb0e548c/LR-Tort-Claims-Article-REVISED.aspx