Filing an Injury Claim Against the Government in Indiana

You've been injured in Indiana, by the government or one of its officers or employees. You're considering a claim or a personal injury lawsuit to collect compensation (damages) for your injuries. But you have questions about Indiana law. Can I sue the government? Doesn't Indiana get special protection from lawsuits? How long do I have to file my claim? What can I do to improve my chances of winning?

We'll answer those questions and more. Let's begin with an overview of injury claims against the government. Then we'll zoom in on the details of Indiana law.

Overview of Injury Claims Against the Government

Suing the government isn't like suing a private individual or a business. In most states, Indiana included, the plaintiff (the party filing the lawsuit) faces a dizzying array of rules, deadlines, and limits, most of which seem designed to throw roadblocks in the way of even legitimate, meritorious claims. The slightest error, no matter how well-intentioned, can spell the end of your case.

Common Issues in Government Claim Cases

When you square off with an injury claim against any government, be prepared to overcome these obstacles—and perhaps others.

• Immunities. In the context of injury claims, immunities are rules that protect the government, as well as its officers and employees, from being held legally responsible for losses they cause. While most states have partly waived at least some immunities, others remain. The first step in a claim against the government—and often the most difficult one—is figuring out what immunities exist, whether they apply in your case, and if they apply, whether they can be avoided.
• Deadlines and limitations. When you're making a claim against the government, be ready to move quickly. Sometimes, very quickly. Special deadlines and statutes of limitations are likely to be in play. Often as short as just a few months, these rules are meant to kill your claim before it ever gets started.
• Special processes and procedures. You can't simply run down to your local courthouse and file a lawsuit against a county or the state. Almost without exception, you'll face special claim notice requirements. You must tell the government you plan to sue before you file your lawsuit. In some states, dedicated courts or other tribunals have been set up to hear claims against the government.
• Damage limits. Many states limit, or "cap," the damages you're allowed to collect even if you win your case. Depending on the facts and the nature of your injuries, these arbitrary and often inadequate caps might seem to add insult to injury.

Sovereign Immunity: The Granddaddy of All Immunities

When it comes to government immunity from lawsuits, the granddaddy of them all is called "sovereign immunity." A hand-me-down concept from English law, sovereign immunity traces its roots to the idea that the king, as sovereign and lawmaker, could do no wrong. The sovereign, in other words, was immune from suit.

When the original American colonies broke free from England, they took the idea of sovereign immunity with them. Today, the specific contours of sovereign immunity vary from one state to the next, according to each state's law. In general, though, states typically follow one of two approaches to sovereign immunity.

• Immunity is the rule; liability is the exception. These states retain broad sovereign immunity but waive it for specific kinds of claims and suits. Think of it as "no lawsuits permitted, except those we specifically allow."
• Liability is the rule; immunity is the exception. These states (Indiana is one of them) typically waive sovereign immunity completely or almost completely, replacing it with specific statutory immunities for certain kinds of claims and suits that are off limits. We might describe this as "all lawsuits are allowed, unless we make a law prohibiting them."

You'll find your state's approach detailed in its "Tort Claims Act" or similar law.

The Controlling Law: Indiana's Tort Claims Act

The starting point for any injury claim against Indiana or its local governments is the Indiana Tort Claims Act, found at Ind. Code tit. 34, art. 13, ch. 3 (2024) (the Act). Created by the Indiana legislature after the state's supreme court did away with the last remnants of sovereign immunity, see Campbell v. State, 259 Ind. 55, 58-63 (1972), the Act:

• compiles a list of claims for which Indiana and its local governments remain immune from suit
• spells out critical claim notice deadlines and procedures, and
• caps damages against the government.

What's Immune (and What's Not) Under Indiana's Tort Claims Act

In a state like Indiana that's no longer protected by broad sovereign immunity, the legislature usually follows up with statutes describing specific kinds of claims that are barred. That's the job of Ind. Code § 34-13-3-3 (2024), a laundry list of (at least) 24 claims for which lawsuits are prohibited.

A Partial List of Immunities

Here are some (but not all) of those claims. A person can't sue the government, its officers, or its employees for injuries caused by:

• the condition of a water or sewer structure, like a reservoir or dam, if it was being used in a way that was not "foreseeable"
• temporary road or property conditions caused by weather
• the condition of unpaved roads, trails, and footpaths leading to recreational areas
• the performance of (or failure to perform) "discretionary functions," meaning functions involving judgment or policy-related decisions
• adopting and enforcing (or failing to adopt and enforce) any law, rule, or regulation
• any action regarding permits, licenses, certificates, and similar government documents
• failing to inspect private property
• entering any property where entry is legal
• any act done (or not done) under a law or court order that's found to be invalid, if the actor would not have been liable had the law or court order been valid
• acts or failures to act by any third party who isn't a government employee or agency
• highway or roadway design or maintenance, as long as the road is in a "reasonably safe" condition
• injuries related to an emergency communication system, and
• remediation of hazardous substances, petroleum, and other pollutants.

What Kinds of Claims Are Allowed?

Because the Act focuses on claims that aren't allowed, it can be difficult to figure out what claims are allowed. Among the most common are negligence claims involving:

• falls caused by dangerous conditions in public buildings
• falls on public sidewalks and other walkways
• auto accidents resulting from a dangerous road or highway
• auto accidents caused by an employee's negligent driving, and
• medical malpractice from care and treatment at government-operated medical facilities.

Your attorney can tell you whether your injury claim is on the prohibited list or the allowed list.

Critical Claim Notice Deadlines and Procedures

Claims against Indiana or a local Indiana government are subject to detailed claim notice procedures and deadlines. You can't file a lawsuit unless you first follow these rules. In other words, if you try to sue the government before you file a notice of claim as described below, the court will have no choice but to dismiss your lawsuit.

Claims Against Indiana

When your injury claim is against Indiana, one of its agencies, or a state officer or employee, you must give written notice of your claim to the Indiana Attorney General or to the involved state agency. The Attorney General's office has a claim form you can use. The filing deadline is 270 days from the date you were injured. (Ind. Code § 34-13-3-6 (2024).)

Claims Against Indiana Political Subdivisions

There's a similar notice requirement for claims against Indiana political subdivisions. The notice deadline is 180 days from the date of your injury. You must notify both the political subdivision and the Indiana political subdivision risk management commission, but only if the the political subdivision was a commission member on the date you were injured. (Ind. Code § 34-13-3-8 (2024).)

Be sure to check the political subdivision's website for claim forms and filing instructions. Indianapolis, for example, has an instruction page and a claim form you can use. Bloomington's Risk Management Office provides claim filing instructions.

Contents and Delivery of the Notice

Your written notice should include a statement of the relevant facts, describing:

• the circumstances that gave rise to your injuries
• the nature and extent of your injuries
• the time and place where you were injured
• the names of all persons who were involved (if you know them)
• the amount of damages you seek, and
• your residence, both at the time of your loss and at the time you send the required notice.

(Ind. Code § 34-13-3-10 (2024).)

The notice must be hand delivered or sent by registered or certified mail. (Ind. Code § 34-13-3-12 (2024).)

Note, importantly, that filing a notice of claim isn't the same as filing a lawsuit in court. Filing your notice and following the required notice of claim procedures (discussed below) are prerequisites to a lawsuit.

Notice of Claim Procedure

Once you file your notice of claim, the government has 90 days to consider it and to notify you, in writing, that your claim is approved or denied. Failure to notify you that your claim is approved within that time means your claim is denied. (Ind. Code § 34-13-3-11 (2024).) You're not allowed to sue the government unless your claim is denied, in whole or in part. (Ind. Code § 34-13-3-13 (2024).)

Special Rules for Public and Charter Schools

A different set of rules applies when your claim is against an Indiana public school or a charter school. (See generally Ind. Code tit. 34, art. 13, ch. 3.5 (2024).) Specifically, you must give the school and its governing body notice of your claim and your claim must include a proposed remedy. (Ind. Code § 34-13-3.5-4 (2024).) If you file a lawsuit (or other action) before giving this notice, the court must dismiss your case. (Ind. Code § 34-13-3.5-7 (2024).)

Limits on Damages You Can Collect

Indiana, like many states, caps the personal injury damages you can collect if you win your government claim. The limit is $700,000 per person and $5,000,000 for all injuries to all persons in a single occurrence. These caps also apply to wrongful death claims. (Ind. Code § 34-13-3-4 (2024).)

Punitive damages aren't allowed.

Suing the Government in Court

If you can't resolve your case at the notice of claim stage and you need to sue the government, you'll want to be familiar with Indiana's personal injury laws and case filing deadlines. In most personal injury cases, you have two years from the date you were hurt to file your case in court. (Ind. Code § 34-11-2-4(a)(1) (2024).)

But depending on the facts of your case, a different deadline might apply. Don't take needless chances with your claim. Speak to an experienced Indiana lawyer. And don't delay, because time is the enemy of your claim.

Get Help With Your Indiana Government Claim

What's the most important thing you can do to improve your chances of winning? Hire an experienced Indiana government claims lawyer to guide you through the process. You're not familiar with all the special rules and procedures that apply to government claims. The government's lawyer understands those rules and procedures well, and knows how to use them against you.

Without experienced legal help on your side, it won't be a fair fight. When you're ready to move forward with your claim, here's how to find a government claims attorney near you.