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ER - Local Gov't > W & M Rule Statements > Flashcards

W & M Rule Statements Flashcards

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1
Q

Notice Requirement for a Negligence Claim against City

A

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 six months after such cause of action accrued.

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2
Q

Where must the written statement be filed?

A

Statement must be filed with the county, city, or town attorney or with the chief executive or mayor of the county, town or city.

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3
Q

When is notice deemed timely filed?

A

when it is received in the office of the official to whom the notice is directed.

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4
Q

Who has the burden of proof to establish receipt of notice?

A

Claimant.

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5
Q

How are the provisions of the procedural statute for notice construed?

A

Mandatory rules that are strictly construed.

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6
Q

If Notice requirements are not met….

A

The claimant will be barred from bringing the claim.

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7
Q

Does the notice requirement apply to city employees?

A

No - only applies to city, town, locality

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8
Q

What is the exception to the notice requirement?

A

Actual knowledge

while a written statement is the property way of providing notice, “provided that the attorney, chief executive, or mayor… or any insurer or entity providing coverage or indemnification of the claim, had actual knowledge of the claim… within six months,” the claim would still be able to proceed.

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9
Q

What is the cause of action for inverse condemnation?

A

A cause of action for inverse condemnation is a specific type of proceeding based on a constitutionally created right connected to the “taking” or “damaging” of property by the government.

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10
Q

Taking or damaging property means that….

A

the gov’t action adversely affects the landowner’s ability to exercise a right connected to the property.

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11
Q

To prevail on a claim for inverse condemnation, P must prove:

A

(i) the property owner owns private property or has some private property right,

(ii) the property or a right connected to that property has been taken or damaged by the government,

(iii) the taking or damaging was for “public use,” and,

(iv) The government or condemning authority failed to pay just compensation to the property owner

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12
Q

Is a drainage project considered a public use?

A

Yes

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13
Q

Based on a draining project, if an individual suffers from flooding, can that support an inverse condemnation claim?

A

VA Supreme Court held that a single event of flooding can support an inverse condemnation claim where the property owner’s allegations prove the flooding to their property was caused by city’s failure to maintain the waterway channel.

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14
Q

The abatement of a public nuisance is an exercise of the ___________ _________ of the city.

A

Police power

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15
Q

Public Nuisance

A

when a property owner fails to take care of their property and creates a nuisance to the public

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16
Q

In a public nuisance case, where the owner has proper notice and opportunities to be heard on whether their property constituted a nuisance and it is found to be a nuisance, the abatement will/will not be considered an unlawful taking.

A

Will not be an unlawful taking.

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17
Q

If there is no unlawful taking, is a property owner entitled to compensation?

A

No

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18
Q

What is a “taking”?

A

Under federal and VA constitutions, governments entities may:
(1) Take private property
(2) For public use
(3) With just compensation

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19
Q

Is there a taking where the property in question is public property?

A

No

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20
Q

A taking is not for the public use if the primary use is for private…

A

private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development except for the elimination of a public nuisance.

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21
Q

Just amount of compensation

A

when a lawful taking by the government has occurred, condemnation jurors shall be appointed by the Court to determine the issue of just compensation in accordance with procedures prescribed for the condemning authority

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22
Q

Can loss profits be recovered as part of the taking in a condemnation case?

A

Yes, even if the loss profits are speculative and uncertain.

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23
Q

Legal Nuisance

A

A municipality or other local government entity (except a 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.

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24
Q

Is immunity granted with respect to operation of park or recreational extended to a nuisance action based on the operation of such public spaces?

A

Yes

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25
Q

Municipality duty of care in negligence with respect to property open to the public

A

A 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.

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26
Q

Does a municipality have a duty to keep its property in reasonably safe condition for persons who use ordinary care and prudence?

A

Yes

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27
Q

Dillon’s Rule limits powers…

A

Limits the powers of local governments to those powers expressly granted by the General Assembly.

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28
Q

Dillon’s Rule grants authority to include powers…

A

reasonably necessary or fairly implied to carry out the functions expressly authorized.

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29
Q

An argument against the city when exercising powers under Dillon Rule

A

Dillon Rule is to be strictly construed against the local governments.

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30
Q

If there is any reasonable question as to whether the local gov has been granted the authority in question the municipality has….

A

no authority

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31
Q

A city is also known as…

A

A locality

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32
Q

What type of negligence is a city immune from?

A

Simple negligence in the operation of various facilities including, “parks”, “playgrounds”, and “recreational facilities.” – this is government functions.

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33
Q

Examples of a recreational facility

A

City boardwalk, municipal hall, pickleball courts

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34
Q

City remains liable for….

A

for gross or wanton negligence in operating the various facilities

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35
Q

What is gross negligence?

A

the utter disregard of prudence amounting to complete neglect of the safety of another, emphasizing the importance of deliberate conduct.

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36
Q

Can gross negligence also be proved from a combo of several acts of simple negligence?

A

Yes

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37
Q

One act of simple negligence, without any other facts, will/will not suffice to prove gross and or wanton negligence.

A

will not suffice

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38
Q

For a city to be liable for gross or wanton negligence

A

The municipality must have actual or constructive notice of a defect on public property in time to have remedied it before liability attaches.

Must show more than just that there is a defect that causes P injury.

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39
Q

A municpality has constructive notice of a defect in a publuc way adjoining a street when the defect has…

A

existed for some period of time as it could have been discovered by the exercise of ordinary care

40
Q

What type of function is maintenance of a city sidewalk?

A

proprietary function and not a government function

41
Q

Open and obvious defects do or do not give rise to municipality liability?

A

do not

42
Q

Even if the defect is open and obvious, a municipality may be liable if…

A

the City knew of some potential danger but disregarded it → City’s Plea seeking dismissal should be denied

43
Q

First step in determining municipality liability/immunity

A

determine whether the municipality is acting in its governmental function, not proprietary

44
Q

What is a government function?

A

exercising powers and duties exclusively for the public welfare (general) benefit and well-being of its citizens.

45
Q

What is a proprietary function?

A

municipality’s exercise of its powers and privileges primarily for its own benefit

46
Q

If the function is proprietorial, the municipality is/is not immune?

A

Is not immune.

47
Q

Garbage collection is a….

A

government function

48
Q

Operation of a fire department is…

A

a government function

49
Q

The installation of fire hydrants are to provide for the general safety and welfare of the public making it…

A

a government function

50
Q

Operation of a water department for the purpose of supplying water for domestic and commercial purposes….

A

private or proprietary function

51
Q

Road maintenance is…

A

a proprietary function

52
Q

Routine ministerial acts which involve no government agent discretion are…

A

proprietary functions

53
Q

Sovereign Immunity

A

Governmental agencies, while acting in their government capacities, are immune from liability for tortious personal injury negligently inflicted.

54
Q

What are counties?

A

political subdivisions of the Commonwealth and therefore entitled to the same immunity as the Commonwealth.

55
Q

Counties receive a ______ level of sovereign immunity than cities unless ___________.

A

greater; statute provides otherwise

Counties receive a greater level of sovereign immunity than cities do unless a statute provides otherwise.

56
Q

County immunity extends to what type of acts?

A

governmental and/or proprietary acts

57
Q

County immunity extends to who?

A

county officers and employees who negligently cause injury to another

58
Q

School board immunity is generally found….

A

generally found in the fact that it is a government agency or arm of the state and acts in a government capacity in the performance of duties imposed by the law.

59
Q

School board immunity is waived for…

A

damages arising of an accident to the extent of an insurance policy covering a vehicle involved in an accident.

60
Q

Purpose of sovereign immunity

A

to protect the public purse and provide for smooth operation of government.

61
Q

Why are certain gov employees cloaked with sovereign immunity that applies to their employers?

A

In order to eliminate public inconvenience and danger that might spring from officials being fearful to act or to take public jobs based on the threat or use of vexatious litigation.

62
Q

Four factors to determine whether a city or locality employee is covered by sovereign immunity

A

(1) the nature of the function the employee performs,

(2) the extent of the government entity’s interest and involvement in the function,

(3) the degree of control and direction exercised by the government entity over the employee, and

(4) whether the alleged wrongful act involved in the exercise of judgment and discretion

63
Q

Example of an employee who is covered by sovereign immunity

A

A firefighter driving a fire truck

64
Q

If a city employee is intentional or grossly negligent…

A

Sovereign immunity does not apply

65
Q

Sovereign immunity and notice requirement are not applicable defenses to….

A

inverse condemnation claims

66
Q

Why doesn’t SI/notice requirement apply to an inverse condemnation claim?

A

an inverse condemnation claim is a quasi-contract claim NOT a tort claim

67
Q

When does an inverse condemnation claim arise?

A

when a property owner can show that his or her private property has been taken for public use without just compensation.

68
Q

The line between tort and inverse condemnation can be difficult to distinguish, you need to look at….

A

the purposeful act causing the taking of, or damage, to private property was for the public use.

69
Q

Proper exercise of eminent domain is a defense to…

A

an inverse condemnation claim

70
Q

Proper exercise of eminent domain includes

A

lawful taking - i.e., taking by gov’t for public use if provide owner with just compensation

71
Q

Assumption of the risk - defense to negligence - D must prove that…

A

A defendant must prove that the plaintiff fully understood and appreciated a known danger and voluntarily exposed himself to that danger.

72
Q

Assumption of the risk when the defect is open and obvious…

A

Where the defect is open and obvious, P may be prevented from seeking monetary damages because she “voluntarily assumed the risk” of injury.

73
Q

Contributory negligence as a defense occurs when a P…

A

A plaintiff is contributorily negligent if he fails to act as a reasonable person for his own safety under the circumstances.

74
Q

Who has the burden of proving the defense of contributory negligence?

A

The defendant

75
Q

What must the D prove to show that P was contributorily negligent?

A

that a plaintiff is negligent, but that his negligence is a proximate cause of plaintiff’s injuries.

76
Q

Contributory negligence is an absolute _____ to _____.

A

bar to recovery

77
Q

Contributory negligence when defect is open and obvious

A

bsolute bar to recovery for injuries where the condition was open and obvious and by exercise of ordinary care P could have and should have seen it.

78
Q

Contributory negligence in a slip and fall case

A

When a P knows of the existence of a condition but without reasonable excuse forgets about the condition and falls into, off of, or over it, he is guilty of contributory negligence as a matter of law.

79
Q

VA Freedom of Information Act (VFOIA) - Meetings

A

Defines a meeting to include an informal assemblage of:

-As many as three members or
-A quorum (if less than three) of constituent membership, wherever held, without or without minutes being taken, whether or not any votes ate cast of any public body.

80
Q

Public body includes

A

an independent city

81
Q

With regard to meetings under VFOIA, public bodies shall….

A

Have all meetings open to the public, unless a specific exemption for closed meeting applies,

Give notice of the date, time and location of its meetings by posting on its website, positing area, and at the office of the clerk or administrator,

Allow their meetings to be filmed, and

Shall keep property minutes of their meetings

82
Q

Citizen’s access to public records

A

Unless otherwise required by law or subject to a specific exemption under the Act, all public records shall be open to citizens of the Commonwealth and representatives of newspapers and magazines with circulation in the Commonwealth.

83
Q

Exception to the VFOIA with regard to public records being open to all citizens of the Commonwealth

A

(1) When disclosure could jeopardize public safety

(2) Proprietary records

(3) Trade secrets

(4) Report prepared specifically for use in litigation

(5) Matter that is properly the subject of a closed meeting

84
Q

If the cost of producing records is likely to succeed $200, the city may

A

require the citizen to pay a deposit toward the final cost of providing the cop

85
Q

Cell phone records for a phone issued by the government to use in the scope of employment is…

A

likely to be a public record

86
Q

What are public records?

A

Includes all writings and recordings of any kind in the possession of a public body or its officers, employers, or agents in the transaction of public business.

87
Q

The city is not required to provide documents to individuals who:

A

(1) are not VA citizens; or
(2) media outlets in VA

88
Q

How many responses must a public body make?

A

A public body must make 1 of 5 responses in writing to a request for records within 5 working days of the request

89
Q

Transaction of a public business requires….

A

that public business be conducted in the open

90
Q

For a transaction of public business by a local public body to be properly authorized

A

a contract must be voted on in a properly called, and noticed, open, public meeting by recorded vote in accordance with the requirements of the act.

91
Q

Locality Restrictions are permitted when

A

A locality may permit the temporary use of public rights-of-way for other than public purposes and close the rights-of-way for public use and travel during temporary use.

92
Q

Council voting on an ordinance

A

Unless otherwise specifically provided for by the (Virginia) Constitution or by other general or specific law, an ordinance may be adopted by a majority of those present and voting at any lawful meeting.

93
Q

Does a mayor have a veto power?

A

Mayor is head of the local government for official functions and ceremonial purposes, the Mayor has no veto power.

94
Q

Voting on sale of a public place

A

No rights of a city or town in and to its waterfront, wharf property, public landings, wharves, docks, streets, avenues, parks, bridges, or other public places, or its gas, water, or electric works shall be sold except by an ordinance passed by a recorded affirmative vote of three-fourths of all the members elected to the council.

95
Q

What is a public place?

A

an area that has been devoted to the use of the public at large or by the municipality itself in carrying out its governmental functions (e.g., a school building, a public office building, etc.)

96
Q

Will a majority vote suffice for sale of public place?

A

NO - must be 3.4 of all members elected

97
Q

Property that was formerly used as a city playground qualifies as…

A

A public place

ER - Local Gov't (1 decks)

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