Local Gov Flashcards
Notice of Claims Requirement against locality for neglignece
Every claim against any locality for negligence is barred unless the claimant files a written statement of the nature of the claim including the time and place at which the injury is alleged to have occurred within 6 months after cause of action accrued. (Absolute bar)
Statement must be filed with county/city/town attorney or with the chief executive / mayor.
Notice of Claims is deemed timely filed when
it is received in the office of the office to whom notice is directed.
Burden of proof is on _________ to establish receipt of the notice.
The claimant
Possible savings provisions against the Notice of Claims Requirement
Where the attorney, chief executive, mayor, or any insurer, had actual knowledge of the claim within 6 months, the claim would be able to proceed.
Does the notice of claims requirement apply to individual city employees?
No.
Statute of Limitations for claims against city
2 years after date of incident
Inverse Condemnation (generally)
When the government fails to condemn private land taken for public use, the landowner’s recourse is to file an action for inverse condemnation based on an implied contract between the government and landowner.
Inverse Condemnation Elements
Landowner must establish:
1. The property owner owns private property or another private property right.
2. the property of right connected to that property has been taken or damaged by the government.
3. the taking or damaging was for public use, and
4. The government or condemning authority failed to pay just compensation to the property owner.
Legal Nuisance
A municipality or other local gov entity (except county) may be liable for injuries resulting from the creation or maintenance of a nuisance which unreasonably interferes with the use and enjoyment of another’s property.
Interference must be substantial.
Municipality Negligence Duty
Municipality is bound to use due and proper care to see that its property which is open to use by the public is reasonably safe to persons passing on or along the property when exercising ordinary care and prudence.
Duty - to keep the property in reasonably safe conditions for persons who use ordinary care and prudence.
Dillon’s Rule
Limits the powers of local govs to those powers expressly granted by the General Assembly.
The grants of authority also include any powers reasonably necessary or fairly implied to carry out the functions expressly authorized.
Dillon’s Rule - Strict Construction
Dillon’s Rule is to be strictly construed against the local govs. If there is any reasonable question as to whether the local gov has the authority in question → no authority.
Sovereign Immunity
Gov agencies, while acting in their gov capacities, are immune from liability for tortious personal injury negligently inflicted.
Counties are political subdivisons of the Commonwealth and are entitled to ___________ of immunity as the commonwealth. Cities receives less immunity than Counties do.
Same level of immunity as the Commonwealth.
County Immunity
Counties are not accessed under the government proprietary distinction available to municipalities.
County immunity extends to acts that would be considered governmental OR proprietary.
County immunity extends to cover county officers and employees who negligently cause injury to each other.
School Board Immunity
Generally, school board is considered a gov agency or the arm of the state and acts in a gov capacity in performance of duties imposed by the law.
Immunity is incidental to a gov agency.
Where there is no vehicle accident involved → school board is cloaked with sovereign immunity
City or locality (municipality) immunity
A VA municipality is immune from negligence while acting in its governmental but not its proprietary functions.
Governmental functions - when it exercises powers and duties exclusively for the public welfare.
Governmental functions
when it exercises powers and duties exclusively for the public welfare.
Proprietary Functions
Involves the municipality’s exercise of its powers and privileges primarily for its own benefit and which are ministerial in nature involving no exercise of discretion by a city actor.
Sovereign Immunity - Recreational Facilities
City or locality has sovereign immunity from simple negligence in the operation of various facilities including parks, playgrounds, and recreation facilities.
Purpose of Sovereign Immunity
To protect the public purse and provide for smooth operation of government
Employee Sovereign Immunity for city or locality employees (Factors)
- The nature of the function the employee performs,
- The extent of the government entity’s interest and involvement in the function,
- The degree of control and direction exercised by the government entity over the employee, and
- whether the alleged wrongful act involved the exercise of judgment and discretion.
Purpose of notice requirement
to afford the locality the opportunity to investigate the circumstances that give rise to the alleged negligence.
Lack of notice must be raised
in the first responsive pleading or it is waived
“Taking” (proper where)
Private property may be taken by the government only for public use if they provide just compensation.
Determination of Just Compensation (where there has been a taking)
When a lawful taking by the gov has occurred, condemnation jurors are appointed by the court to determine the issue of just compensation in accordance with the procedures prescribed for condemning authority.
In VA, on the issue of just compensation, lost profits
may be recovered as part of the taking in a condemnation case.
This contrasts the general rule that lost profits may not be recovered if they are speculative, remote, uncertain, or contingent.
VA Constitution proves that compensation in a taking case …
Shall be no less tan the value taken, including lost profits and lost access, along with any damages the residue caused by the taking.
Public Nusiance
Where there are unsafe, dangerous, or unsanitary public or private buildings, walls, or structures which constitute a menace to the health and safety of the occupants thereof or the public, the government may step in and abate the nuisance as a proper exercise of their police power.
Abatement of a public nuisance procedure
Owner must have proper notice and opportunities to be heard on whether the property constituted a nuisance.
Once it is found to be a nuisance, the abatement by a public body will not be considered an unlawful taking.
Public Nuisance owner is not
entitled to just compensation
Sovereign immunity only applies to
tort claims, not quasi-contract claims such as inverse condemnation
Defense of City - City had no notice of the defect
A municipality must have actual or constructive notice of a defect on public property in time to remedy the defect before liability attaches.
If defect there long enough → may be constructive notice
Assumption of the Risk
D must prove that P fully understood and appreciated a known danger and voluntarily exposed himself to the danger.
Open and obvious defects → no municipal liability
Contributory Negligence (generally)
P is contributorily negligent if he fails to act as a reasonable person for his own safety under the circumstances.
Contributory negligence burden
D has the burden of proving not only that P is negligent, but that his negligence is the proximate cause of his injuries.
If Contributory Negligence is proven..
It is an absolute bar to recovery for injuries
Slip and Fall Case (Contributory Negligence)
When a P knows of the existence of a condition but without reasonable excuse forgets about the condition, falls into it, off of, or over it → guilty of Contributory negligence as matter of law
VA Freedom of Information Act (VFOIA)
Ensures that, absent a statutory exception, meetings of public bodies conducting public business shall be open to the public.
VFOIA - Votes at Meetings
VA law prohibits transacting public business other than by votes at meetings.
VFOIA Meeting Requirements
- As many as three members, or
- A quorum (if less than three) of constituent membership, wherever held, with or without minutes being taken, whether or not the votes are cast of any public body
VFIOA - Public bodies holding meetings shall give notice of
Date, time, and location of meetings by posting on its website, public posting area, and at the office of the clerk or admistrator.
Shall also allow meetings to be filmed and keep proper minutes of the meetings.
Virtual Communication not in the form of a meeting
VA law provides that no meeting shall be conducted through phone, video, electronic, or other communications means where members are not physically assembled to discuss or transact public business.
Exception - State of emergency or single member participates electronically where there is a quorum in person.
Locality Restrictions (temporary public rights of way)
A locality may permit the temporary use of public rights of way for other public purposes and close the rights of way for public use and travel during the temporary use.
Ordinances Voting by Counsel
Unless otherwise provided by VA Constitution or by other general or specific law, an ordinance may be adopted by the majority of those present and voting at any lawful meeting
Mayor Duties
Mayor is the head of local gov for official functions and ceremonial purposes.
Does a mayor have veto power?
No.
VFOIA public records
Except as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth during the regular office hours of the custodian of such records. Access to such records shall not be denied to citizens of the Commonwealth, representatives of newspapers and magazines with circulation in the Commonwealth, and representatives of radio and television stations broadcasting in or into the Commonwealth
public records definition under VFOIA
All writings and recordings regardless of physical form or characteristics prepared by or owned by or in possession of a public body or its officers, employees, or agents in the transaction of public business.
Includes emails.
Where a request is made by a VA citizen or local newspaper,the board or its records custodian has ____ working days to provide the requested documents or determine if they are available. If they are available, they have ____ additional working days to provide the documents,
5; 7.
