Government Liability

Most municipalities have enacted either charter provisions or ordinances that state that the municipality will not be liable for damages unless timely notice has been provided prior to the filing of an action against the municipality. The notice is a condition precedent to the filing of a tort action against the municipality.

Notice of Claim

Most municipalities require a plaintiff to file a written notice of claim prior to initiating a lawsuit against the municipality. Some municipalities require that the notice be verified or be sworn to by the plaintiff. The written notice of claim is usually required to be filed within 30, 60 or 90 days after the plaintiff has sustained injuries or damages. The notice of claim is usually required to state the details of the plaintiff's injury, such as when, where, and how the injury was sustained. The notice of claim may also be required to state the names of any witnesses and the amount of damages that were sustained by the plaintiff.

In some states, notice requirements have been attacked as a denial of the constitutional rights to due process and equal protection. However, in those states, the notice requirements have generally been upheld as long as they are not applied to persons who are physically, mentally or legally incompetent and as long as they do not impose an unreasonable restriction on the right to sue the municipality.

Substantial Compliance

When a municipality requires a plaintiff to file a pre-suit notice of claim, the plaintiff will be deemed to have properly notified the municipality if he or she substantially complies with the notice requirements. If the notice of claim provides fair notice to the municipality of the plaintiff's injuries and damages, the notice requirements will be met. However, the notice of claim must be in writing. Oral notice does not satisfy the notice requirements.

When a municipality's pre-suit notice requirements require a plaintiff to specify the type and amount of damages that have been sustained, the plaintiff will be deemed to have met the requirements if he or she makes a general statement regarding the type of injuries, that is, whether the injuries are personal injuries or death, and regarding the amount that the plaintiff is seeking from the municipality. A description of the cause or circumstances of the plaintiff's injuries must direct attention to the substantial defect or the act of negligence for which the plaintiff is seeking damages.

Most municipalities require a notice of claim to be directed to certain officials, such as the mayor or the city council. However, if other persons have been specifically authorized to act on behalf of the officials, notice to those persons will be deemed to be sufficient for purposes of the notice requirements.

Waiver of Requirements

Even if a municipality requires a pre-suit notice of claim to be filed by a plaintiff, the municipality or its officials may waive the notice requirements. The municipality may also be estopped from claiming that the plaintiff failed to meet the notice requirements if its officials engaged in conduct that misled the plaintiff, if the plaintiff relied on the misleading conduct, and if a reasonable person under the same circumstances would have relied on the misleading conduct.

A municipality's notice requirements must comply with a state's general statutes of limitations. If the municipality's notice requirements conflict with the general statutes of limitations, they will be deemed to be unenforceable and void.

A plaintiff is entitled to recover actual damages from a municipality for torts that are committed by the municipality. However, the standards for recovering punitive or exemplary damages from a municipality are different than those that apply to a private defendant. Punitive damages can generally not be recovered from a municipality unless the municipality's employees or representatives showed utter disdain for the protection of citizens' rights. An utter disdain for the protection of citizens' rights can be shown by willful, wanton, malicious, or grossly negligent conduct. A plaintiff may also be entitled to punitive damages against a municipality if fraud on the part of the municipality is established.

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