Fred Schultz Torts Law Blog on Lawyers.com

There have been a string of tragic incidents that have gotten me thinking about Indiana’s terribly one-sided laws when it comes to suing governmental entities.  For example, February 9, 2011, a natural gas line exploded in the middle of the night in Pennsylvania, killing at least five people.  The subsequent fire destroyed several houses and caused extensive damage to at least a dozen more.  And a day later, there was a gas line failure in eastern Ohio.    Pipelines, bridges, and roads are failing on a regular basis.  While a road failure may seem like good, old-fashioned ground, it is better known as a pothole or sink hole.  These result in lane or road closures while the road is resurfaced or rebuilt and in traffic tie-ups and vehicle damage until those repairs can be arranged.

The US Chamber of Commerce supports revitalizing the nation’s infrastructure because it enables faster shipping of more goods and could reinforce economic growth both by employing more workers and by stimulating trade.  In addition, there are the aforementioned safety and property concerns.  As it turns out, I agree with the US Chamber of Commerce on this issue.  America’s infrastructure is crumbling and it is time to do something about it.  At the end of the day, we all want to travel safely and efficiently on roads that aren’t at risk of collapsing around us. 

In Indiana, we are somewhat at the mercy of our public officials when it comes to our roads and bridges.  This is because numerous immunities (sometimes called sove reign immunities) exist against governmental entities for negligent design of highways and other items in our infrastructure.  For example, Indiana Code 34-13-3-3 prohibits a local or state government for being sued if a road is more than twenty years old unless substantial improvements and changes have been made to it over time.  Because of this there is little incentive for lawsuits after-the-fact to bring needed changes.  We can all think of many, many roads and bridges that have had few, if any, changes made to them in 20 years.

That’s one of the frustrating aspects of “Tort Reform.”  It takes away the pressure to do what is right in a timely fashion.  Let’s face it, one of the reasons (among many) that people act in a reasonable manner is that they can be held responsible for the harm if they don’t.  Whether you’re driving a car or a semi-tractor trailer, or whether you’re a doctor performing a procedure, or a lawyer handling a case for a client, we all need to use reasonable care to do what is right.  If we don’t and we end up hurting someone, we could get sued.  That’s an external pressure to act carefully.  Our law intends to have that external pressure there because it forces us to be careful. 

However, at least in Indiana, that pressure is often times not present when we talk about local or state governments.  It is very difficult to sue the government for the decisions they make.  While we all think that government should be accountable to the citizens, reality is often exactly the opposite.  There are many things, such as infrastructure design and construction where they are often immune from liability.  In other words, even when they make a serious mistake, there are many situations where there is simply no remedy.  If there is a situation where a lawsuit can be brought, there is a heightened state of fault that you have to prove or statutory caps on damages if you win.  That’s not to say it’s always impossible, it’s just a very uphill climb. 

So, let’s keep pressure on our state and local governments to make the necessary changes to our roads, bridges and utilities to keep us all safe.  At the end of the day, that’s what they are there for, and that’s all any of us want.

Additional research compiled by Lori M. Craig, R.P.