The Local Government Tort Claims Act (“Act”) provides a strong tool for defending claims brought against governmental entities and agencies. The Act is far broader than its name implies, affecting such entities as The Maryland National - Capital Park and Planning Commission, The Washington Suburban Sanitary Commission, certain community colleges, county public libraries and housing authorities.
The Act provides a road map for the prosecution and defense of claims against the entities it encompasses. A principal purpose of the Act was the provision of limitations on liability to $200,000.00 per individual claim and $500,000.00 per occurrence. Despite the title of the Act, Maryland's highest court has held that these limitations DO NOT apply to the local government entity as such, but only to INDIVIDUAL EMPLOYEES of the entity. Thus, whenever a tort was committed by a local government employee, that individual was protected by the liability limitations, but the local government entity was not. It didn't take the plaintiff's bar very long to figure out who to target in these types of cases, nor did it take the state legislature very long to FIX the problem with a statute designed to have retroactive application. Of course, the same court that found the Local Government Tort Claims Act inapplicable to local governments ruled retroactive application of the newly clarified law illegal.
There is, however, one portion of the act that remains viable and available as a defense - the notice requirement. The Act specifies that an action may not be brought against a local government entity unless written notice of the time, place and cause of an injury is personally delivered or sent via certified mail to an officer of the local government entity within one hundred and eighty (180) days of the injury. The courts have ruled that substantial compliance with the statute may be sufficient where the same information is transmitted via regular mail in such a fashion as to allow the defendant to investigate the circumstances of the alleged injury despite the absence of certified mail service or delivery to an actual officer.
There is also an escape clause in the Act if the plaintiff can establish good cause for delay and the defendant is not able to show prejudice as a consequence of the delay. The leading case construing the statute is Rios v Montgomery County 386 Md 104, 872 A2d 1(2005).In Rios, suit was brought by an infant plaintiff against a county employee doctor for a birth injury suffered ten years earlier. The Court of Appeals found that the statute did not violate state or federal constitutional principles and affirmed a lower court's grant of summary judgment for failure to comply with the notice requirement despite the plaintiff's infancy and the fact that the plaintiff's mother was a Bolivian immigrant who did not speak English. The Court was careful to point out that review was on an abuse of discretion basis, implying it would have affirmed even if the trial court had come to a different conclusion on the issue of good cause for delay.
Attorneys at RSRM have been successful in obtaining summary judgment in numerous cases based upon a plaintiff’s failure to comply with the notice requirement contained in the Act. A plaintiff’s compliance, or failure to comply with the notice requirement, should be one of the first things reviewed in any case where the Act applies.
Article contributed by Dennis Whelley