Last Thursday, I wrote about the failure of property owners to clean snow from their sidewalks, and about the legal liability they incur when somebody is injured as a result of such negligence. Then I quoted a lawyer as saying, "The worst offender here is the federal government - which seldom cleans its walks and doesn't permit an injured person to sue."
Harry S. Wender immediately informed me that my report was erroncous. And upon checking back with my source I learned that 18 1/2 seconds of what he had actually said had been mysteriously erased from my memory. What he had said was, "The worst offender here is the federal government - which seldom cleans its walks. But the states are also pretty bad, and they don't even permit an injured person to sue."
I immediately launched an investigation to find out who had erased a portion of my mental tape and thereby caused me to telescope two accurate statements into one inaccurate statement. My investigation revealed that the culprit is a man of such advanced years that his brain is turning to Jello. I could rap his knuckles without getting up from my chair.
After learning of my mistake, I phoned the Justice Department and the offices of Virginia's attorney general in Richmond and Maryland's attorney general in Baltimore. To all three I posed the question: "If a person slips and falls on an icy sidewalk that is under your jurisdiction, can he sue?"
In all three instances the answer was, in essence, "I'll look it up for you and call you back."
All three lawyers were probably 99 percent sure of the right answer without research, but lawyers try to avoid shooting from the hip. The information and advice they give is usually sprinkled with phrases like "in most cases," "the usual rule is," and "with certain exceptions."
The gist of what I learned was this: You can't sue the "sovereign" without the sovereign's consent. Many states have waived their sovereign immunity. However, neither Maryland nor Virginia has enacted such legislation, and can't be sued; and Richmond added the afterthought, "with some minor exceptions in the contracts area - as far as we can determine."
The general rule is that cities and counties can be sued. The District of Columbia claimed sovereign immunity for many years but eventually lost its immunity, not through legislation but as the result of a landmark legal decision. You can now sue the District for negligence, but if an automobile is involved you must show gross negligence.
To the claimant who says he has been injured, the federal government is a paragon of virtue. The Federal Tort Claims Act permits suits against the federal government, except in cases involoing slander or libel. Federal tort claims are adjudicated before federal judges, without juries.
If you slip and fall, or somebody slips and falls outside your house, the first question a lawyer would examine would be, "Under whose control was the place where you slipped?" An icy walk or a hole in a Silver Spring street may appear to be under Montgomery County's jurisdiction, for example, but by some quirk may actually be controlled by the State of Maryland, or by the United States Government. To determine whether you can sue, your lawyer would first have to establish jurisdiction.
I posed a hypothetical question to lawyer Wender. "It happens," I said, "that there isn't a snow shovel to be bought in the entire Washington area right now. Local stores have been sold out since the last big snow here, and the wholesalers say they don't plan to bring in any more snow shovels until next winter. If I had broken my shovel while trying to clean my sidewalk and couldn't buy another shovel, and then somebody slipped on the unshoveled portion of the walk - could I be deemed negligent?"
"You'd better believe it," Wender said. "The law doesn't tell you how to prevent your sidewalk from becoming a boody trap. You can remove the snow with a teaspoon, a coal shovel, or several kinds of chemicals.The unavailability of snow shovels doesn't relieve you of the responsibility to find a way to prevent injury to passersby."
It's all very complicated, and I now feel I know more about negligence, torts and responsibilities than I really wanted to. But on behalf of the dumbbell who erased that 18 1/2 seconds of my mental tape, I appologize to the federal government for saying it doesn't permit itself to be sued for negligence. It does.