Jump to content
Sign in to follow this  
SusieOl

Sue the State?

Recommended Posts

Recently I go a flat tire on I-95 in Md. I contacted AAA and asked for assisatnce. The State Hwy Safety Patrol came along and he changed my tire for me. It is a free service provided by the state to assist disabled vehicles. I took my car to the shop 2hrs later and the service tech advised when the guy chaged my tire he over torqued the lugnut causing it to break off. I had it repaired at a cost of $82. I contacted the state, and submitted the paperwork from shop along with the estimate, and asked them to reimburse me for the damages that their employee caused. I got a letter today saying they did nothing wrong. Do I have a small claims case against them?

Share this post


Link to post
Share on other sites

Under the MD "good samaritan act" (5-309), neither the cop nor the city is liable unless you can prove gross negligence which I don't see anything close in your fact pattern....

Wasnt a cop. Its a Hwy Safety Patrol paid for by the state tax dollars. Over torquing isn't negligence? He used a cordless drill that was too powerful

Share this post


Link to post
Share on other sites

It might be a difficult case.  You should start by retrieving the damaged lug.  There are a number of mechanical labotatories that can determine whether the lug sheared because of excess torque or because of fatigue due to age.  They should also determine whether the lug sheared when it was being removed or when it was being replaced.  If it was sheared while being removed it would not constitute negligence. Also you may have the tool used by the Highway Assistance guy analyzed to determine whether it applies excessive torque to the nut.  It would be extraordinary for a cordless device to develop enough torque to shear a steel lug. You will need to also bring in the person who replaced the lug to testify as to the reasonableness of the costs to repair the vehicle. 

 

Bring the repair man and expert witnesses from the two laboratories to your court date along with the damaged lug nut and the cordless drill.  You may be able to convince the judge to award you $82.00.  Expect to pay about $5,000 for the development of the evidence.  The costs for expert testimony is normally not recoverable as costs so the case will probably only cost you $5,000 minus the $82.00.  If you don't win, you could always appeal to the next higher court.  But it will be worth it to prove that anyone helping you had better be careful.

 

Maybe you should have waited for the AAA guy.

Share this post


Link to post
Share on other sites

It might be a difficult case.  You should start by retrieving the damaged lug.  There are a number of mechanical labotatories that can determine whether the lug sheared because of excess torque or because of fatigue due to age.  They should also determine whether the lug sheared when it was being removed or when it was being replaced.  If it was sheared while being removed it would not constitute negligence. Also you may have the tool used by the Highway Assistance guy analyzed to determine whether it applies excessive torque to the nut.  It would be extraordinary for a cordless device to develop enough torque to shear a steel lug. You will need to also bring in the person who replaced the lug to testify as to the reasonableness of the costs to repair the vehicle. 

 

Bring the repair man and expert witnesses from the two laboratories to your court date along with the damaged lug nut and the cordless drill.  You may be able to convince the judge to award you $82.00.  Expect to pay about $5,000 for the development of the evidence.  The costs for expert testimony is normally not recoverable as costs so the case will probably only cost you $5,000 minus the $82.00.  If you don't win, you could always appeal to the next higher court.  But it will be worth it to prove that anyone helping you had better be careful.

 

Maybe you should have waited for the AAA guy.

I wanted to wait for the AAA guy but was told car had to be moved or repaired immediately. It was in an unsafe area. I was on theshoulder.

Share this post


Link to post
Share on other sites

Wasnt a cop. Its a Hwy Safety Patrol paid for by the state tax dollars. Over torquing isn't negligence? He used a cordless drill that was too powerful

 

Maryland has recently revised its laws and the citation to the law LegalwriterOne provided is now Courts and Judicial Proceedings law § 5-603. The language of the law itself is essentially the same. However, I disagree with LegalwriterOne that helping to change a tire would fall under the immunity granted by that section. The section is titled "Emergency medical care" and read as a whole it is clear to me that the section is meant to provide immunity to persons providing help to an injured person. Helping to change a tire isn’t covered.

 

The Maryland Tort Claims Act provides waiver of the state’s immunity for negligent acts of state employees that are done within the scope of their employment.  So, the state might indeed be liable. The officer would not be because the state provides immunity to its employees; it is only the state that would be liable here. But you first must make a claim for the damages you suffered with the state Treasurer and have that claim denied before you may sue in court. I see nothing in the Maryland rules that would prohibit bringing the claim in small claims court.

 

Note that you have to prove both that the officer was negligent, i.e. failed to exercise sufficient care in doing the work given his knowledge and experience and prove the damages. If he’s not an expert in car repair he cannot be held to the same standard you’d apply to a mechanic. The mere fact of damage does not itself prove negligence.

Share this post


Link to post
Share on other sites

Frankly, for $82 this isn't worth your time away from work

at Court, parking expense at the CourtHouse and inconvenience.

It sounds like you couldn't turn this into a class action case

(which would only help the attorney). Be thankful that you

weren't physically injured.

Share this post


Link to post
Share on other sites

Wasnt a cop. Its a Hwy Safety Patrol paid for by the state tax dollars. Over torquing isn't negligence? He used a cordless drill that was too powerful

 

Everybody has given you the bad news about suing the state.

 

The good news is that serving a summons and complaint upon the state means that the state has to get its lawyers involved and go through 9 yards of _____ to handle what amounts to a "nuisance" claim.

 

That's where your advantage is. Somebody might just offer you go-away money to avoid the hassle and expense of sending one of their lawyers to court to fight an $82 claim.

 

No guarantees, of course.

 

Up to you.

Share this post


Link to post
Share on other sites

I contacted the state, and submitted the paperwork from shop along with the estimate, and asked them to reimburse me for the damages that their employee caused. I got a letter today saying they did nothing wrong. Do I have a small claims case against them?

 

As noted above, your claim will likely fall under the Maryland Tort Claim Act. So first, make sure you claim was proper. When you contacted the state, did you use the appropriate state form, provide the information mandated by statute and submit the claim to the appropriate state entity? I ask because completing the administrative claims process is usually a prerequisite to filing a claim in court. You should be able to find everything you need to know about making a claim under the Act via a Google search.

 

Also, are you sure the "State Hwy Safety Patrol" is a government entity and that the person assisting you was a government empoyee?  Generally, the state will not be liable for the negligence of its contractors. Not sure if this service is something the state might contract out.

 

Good luck.

Share this post


Link to post
Share on other sites

I'm in Maryland and I am very familiar with the laws cited by others. You aren't going to get very far trying to sue the state over this. If you complain to the SHA, they might be willing to pay such a minor cost but I wouldn't bet on it.

Share this post


Link to post
Share on other sites

The very notion of suing over $82 -- regardless of who the defendant is -- is really rather absurd, especially in a situation like this where proving negligence and cause will be difficult (if not impossible) and expensive (as outlined in "RetiredinVA's" response, although I think he/she might be overstating things slightly).

Share this post


Link to post
Share on other sites

I admit I exaggerated a little.  I have seen too many times where a citizen goes in to court and tries to present their case as follows:

 

Plaintiff:  I know the defendant broke the lug nut by being careless because my mechanic told me . . . 

Defendant's Attorney:  Objection, Hearsay.

Judge:  Objection upheld.  Don't say what the mechanic told you.  Is the mechanic here?

Plaintiff: No, but...

Judge: Do you have any other evidence?

Plaintiff:  No, but . . .

Judge:  Judgment for the Defendant.  Next case.

 

It is embarassing.

Share this post


Link to post
Share on other sites

I filed the proper paperwork thru the Treasury in Maryland. I have the paperwork saying it was denied. I have also spoken with the mechanic and he is willing to go to court with me. He is a friend and wont charge me, i might take it to court just for hell of it, to piss of the Treasury Dept. Granted its only $82 but im disabled and live on SSDI so it might be a little to you, but its a lot to me.

Share this post


Link to post
Share on other sites

I filed the proper paperwork thru the Treasury in Maryland. I have the paperwork saying it was denied. I have also spoken with the mechanic and he is willing to go to court with me. He is a friend and wont charge me, i might take it to court just for hell of it, to piss of the Treasury Dept. Granted its only $82 but im disabled and live on SSDI so it might be a little to you, but its a lot to me.

 

You got my vote. Go for it.

Share this post


Link to post
Share on other sites

The code section gives a grant of immunity for "providing assistance OR medical aid" unless there is gross negligence.  It is NOT limited to just emergency medical assistance.

 

The key, though, is what the term “assistance” means. If you give it a broad reading could mean a lot of things that I’m pretty sure weren’t intended in a “good samaritan” statute. You might say it would cover helping someone out of the grocery store with their bags or volunteering to coach a kid in soccer as those would be types of “assistance” but I doubt that was the sort of thing they had in mind.   Given the overall statute, I think it’s pretty clear that it refers to assisting an injured person, though not necessarily providing direct medical assistance. That’s why, for example, the protection is largely provided to those that have some kind of training in assisting injured persons. It seems to me that helping to change a tire is not something that was contemplated as within the meaning of “assistance” here. I’ve not looked at the applicable state case law to see how, if at all, the word assistance has been defined, but I’d be suprised if the courts gave it a very broad definition and extended the immunity from suit to all kinds of assistance.

Share this post


Link to post
Share on other sites

Seriously?  You don't want to go there with me.  I seriously doubt you've ever tried to sue a city or a county law enforcement agency.  Law enforcement officers have immunity from civil actions if they're acting within the scope of their duties and there's no gross negligence.  The same goes for when they give assistance in an emergency situation.  5-507; 5-639.  A police officer's vehicle is an emergency vehicle as interpreted and applied by the MD courts in Schreyer v. Chaplain (2010) 5 A.3d 1054.

Share this post


Link to post
Share on other sites

Court fees are going to cost you way more than $82. It isn't going to annoy the state all that much as they already have lawyers on staff who handle this kind of thing as a routine matter. If you want to waste your time and money, feel free, but you are going to suffer far more than the state.

Share this post


Link to post
Share on other sites

Seriously?  You don't want to go there with me.  I seriously doubt you've ever tried to sue a city or a county law enforcement agency.  Law enforcement officers have immunity from civil actions if they're acting within the scope of their duties and there's no gross negligence.  The same goes for when they give assistance in an emergency situation.  5-507; 5-639.  A police officer's vehicle is an emergency vehicle as interpreted and applied by the MD courts in Schreyer v. Chaplain (2010) 5 A.3d 1054.

It wasnt a police officer. Its a a hwy safety Patrol. All they do it assist disabled motorists

Share this post


Link to post
Share on other sites

Seriously?  You don't want to go there with me.  I seriously doubt you've ever tried to sue a city or a county law enforcement agency.

 

To whom was this comment directed? If it was me, then I don't get the  reason for the apparent hostile reply or your basis for assuming I've never "tried to sue a city or county law enforcement agency."

 

Law enforcement officers have immunity from civil actions if they're acting within the scope of their duties and there's no gross negligence.  The same goes for when they give assistance in an emergency situation.  5-507; 5-639.  A police officer's vehicle is an emergency vehicle as interpreted and applied by the MD courts in Schreyer v. Chaplain (2010) 5 A.3d 1054.

 

It was state highway patrol officer, so it was a state employee. Nevertheless, you are of course correct that Maryland law provides immunity to state employees from lawsuits for acts conducted within the scope of their duties so long as it wasn’t gross negligence. I never said otherwise. Instead, the state itself would be the proper party to sue since the Maryland tort claims act does waive immunity from suit for most negligence claims. Maryland Government Code § 12-104. So, unless there is some other exclusion in the state law that would provide immunity to the state for this, the state would be liable if negligence could be proven. You raised the Maryland "Good Samaritan" law as a possible basis for immunity. I've expressed my doubts as to the application of that law to this circumstance, but also admitted that I've not researched the case law to see how far the Maryland Courts extend the definition of "assistance." I have no idea if you have done that either, but if you have you've not indicated it. So my doubt on that remains. That said, I agree that the amount involved simply wouldn't make it worth suing the state over this given the time and money that would be expended to do it even if the OP could prove negligence.

Share this post


Link to post
Share on other sites

5-522 ( b )State personnel, as defined in § 12-101 of the State Government Article, are immune from suit in courts of the State and from liability in tort for a tortious act or omission that is within the scope of the public duties of the State personnel and is made without malice or gross negligence, and for which the State or its units have waived immunity under Title 12, Subtitle 1 of the State Government Article, even if the damages exceed the limits of that waiver.

Share this post


Link to post
Share on other sites

I revert to my previous post about the difficulty of proving negligence.  I have personaly sheared a lug screw.  A friend of my daughter had graciously helped by changing her tire.  He cross-threaded one of the lug nuts so badly that it sheared when I tried to remove it.  Strong boy, he was.  Also, I have had safety inspectors tighten lug nuts, after brake inspection, so tight that I have had to put a three foot piece of conduit on the lug wrench to loosen them and I am a pretty strong boy.

 

I would not conclude that the state employee was negligent smply because a lug screw sheared.   That is why I outlined the proofs she might need.  Unless the mechanic has metalurgical and mechanical engineering credentials I doubt if he would help her case.

 

BTW it is a very simple repair.  The lug screws are force fitted.  You drive the broken lug screw out the back with a heavy hammer and insert an new one.  That's why it only cost $82.  It happens often.

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

Loading...
Sign in to follow this  

×
×
  • Create New...