| T.lynch |
10-07-2014 06:17 PM |
So its been a while since I posted on this thread. since my last post I have reached out to the state of Delaware as well as the city of Wilmington where the incident occurred. I have been rejected by both parties based on a law that provides immunity to governmental entities in these types of cases. Seems absurd you can write in a law basically protecting you from suit, but nonetheless this is how our government works.
However, I did look in to the laws they cited and there is a relative law that states exceptions to this law of immunity. I feel my case (read above) falls within the exceptions in part 3. Below is the law and the exceptions to the law. Any lawyers on here feel free to chime in on your opinion of the strength of my case as it relates to the exceptions.
Immunity from suit Law:
(a) Except as otherwise expressly provided by statute, all governmental entities and their employees shall be immune from suit on any and all tort claims seeking recovery of damages. That a governmental entity has the power to sue or be sued, whether appearing in its charter or statutory enablement, shall not create or be interpreted as a waiver of the immunity granted in this subchapter.
(b) Notwithstanding § 4012 of this title, a governmental entity shall not be liable for any damage claim which results from:
(1) The undertaking or failure to undertake any legislative act, including, but not limited to, the adoption or failure to adopt any statute, charter, ordinance, order, regulation, resolution or resolve.
(2) The undertaking or failure to undertake any judicial or quasi-judicial act, including, but not limited to, granting, granting with conditions, refusal to grant or revocation of any license, permit, order or other administrative approval or denial.
(3) The performance or failure to exercise or perform a discretionary function or duty, whether or not the discretion be abused and whether or not the statute, charter, ordinance, order, resolution, regulation or resolve under which the discretionary function or duty is performed is valid or invalid.
(4) The decision not to provide communications, heat, light, water, electricity or solid or liquid waste collection, disposal or treatment services.
(5) The discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalines, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water, except as provided in subdivision (3) of § 4012 of this title.
(6) Any defect, lack of repair or lack of sufficient railing in any highway, townway, sidewalk, parking area, causeway, bridge, airport runway or taxiway, including appurtenances necessary for the control of such ways including but not limited to street signs, traffic lights and controls, parking meters and guardrails.
Paragraphs (1) to (6) of this subsection to which immunity applies are cited as examples and shall not be interpreted to limit the general immunity provided by this section.
(c) An employee may be personally liable for acts or omissions causing property damage, bodily injury or death in instances in which the governmental entity is immune under this section, but only for those acts which were not within the scope of employment or which were performed with wanton negligence or willful and malicious intent.
Exceptions to Immunity Law:
(3) In the sudden and accidental discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalines and toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water. -
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