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Personal Injury

Federal Tort Claims Act

Suing the Government for Personal Injuries

We have sued the federal government for injuries to civilians caused by federal employees, including soldiers for actions that took place off base, under the Federal Tort Claims Act (FTCA). The FTCA is extremely complex, but it creates a narrow pathway to hold the government accountable for injuries caused by government employees, if the lawyer knows how to navigate the law and its procedures, as well as a very good grasp on underlying personal injury tort law.

The federal government (and all state governments) are protected from lawsuits for personal injuries and wrongful death by the doctrine of sovereign immunity. This concept has existed since ancient law and states that the king can’t be sued unless the king chooses to be sued. What was good for the king is good for the federal and state government.

While this is a large obstacle for suing the government, the United States Federal Government passed the law known as the Federal Tort Claims Act (FTCA). The FTCA doesn’t open the government up to all lawsuits, but to a defined subset, with its own additional rules.

Here is what the FTCA says:

Under the FTCA, "[t]he United States [is] liable . . . in the same manner and to the same extent as a private individual under like circumstances, but [is not] liable for interest prior to judgment or for punitive damages." 28 U.S.C. § 2674. Federal courts have jurisdiction over such claims, but apply the law of the State "where the act or omission occurred." 28 U.S.C. § 1346(b). Thus, both federal and State law may impose limitations on liability. The FTCA exempts, among other things, claims based upon the performance, or failure to perform a "discretionary function or duty.”

The first part is the most important. The federal government is only liable to the same extent private individuals would be liable for the actions that are complained of. Because there is no federal common law for personal injuries, state law applies. If someone is injured by an employee of the federal government in Texas, then Texas law applies to the injury and determines whether the government would be liable. The federal government is liable for car wrecks when employees of the federal government drive on public roads. If an employee of the federal government commits a personal injury tort in their official capacity, and that personal injury can be sued for under state law, then the federal government can be liable.

There are a number of exceptions and procedural hurdles, however, that make this otherwise straightforward law very difficult to wade through.

Negligence / Discretionary Function Exception

The federal government can’t be sued for intentional torts by its employees. It only covers negligence. Assaults by federal agents are not covered since assault is by definition an intentional tort. The government can’t be sued for discretionary acts. This means that if a statute gives the employee discretion to choose between two choices and he chooses negligently, then the government is not liable for that. In essence, this means that the federal employee must have negligently failed to follow some government policy or some non-discretionary rule or law.

Questions of Duty Under State and Federal Tort Law

Because most tort claims other than car wrecks against the federal government are going to involve discretion, or are going to involve intentional torts (soldier who assaults someone off base, border patrol who kills someone on duty), there has to be a way to make the government liable for conduct that led to the intentional act. In a soldier shooting case, there is no claim against the government for the shooting itself (an intentional act), but there may be for some duty breached that led to the shooting.

In such cases, there is likely to be a problem with duty. There is generally no duty owed to third parties under tort law, absent a special relationship or agreement to take on that duty.

Texas tort law on duty is:

Whether a duty exists is a question of law for the court. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525, 34 Tex. Sup. Ct. J. 194 (Tex. 1990). The question of legal duty is a multifaceted issue requiring us to balance a number of factors such as the risk and foreseeability of injury, the social utility of the actor's conduct, the consequences of imposing the burden on the actor, and any other relevant competing individual and social interests implicated by the facts of the case. Otis Eng'g Corp. v. Clark, 668 S.W.2d 307, 309, 27 Tex. Sup. Ct. J. 100 [*34] (Tex. 1983); see also 1 EDGAR & SALES, TEXAS TORTS & REMEDIES § 1.03[2][b] (2000). Although the formulation and emphasis varies with the facts of each case, three categories of factors have emerged: (1) the relationship between the parties; (2) the reasonable foreseeability of harm to the person injured; and (3) public policy considerations. See Graff v. Beard, 858 S.W.2d 918, 920, 36 Tex. Sup. Ct. J. 910 (Tex. 1993); Greater Houston Transp., 801 S.W.2d at 525.
Tex. Home Mgmt. v. Peavy, 89 S.W.3d 30, 33-34 (Tex. 2002)

A duty is more likely to be found if there is serious harm, the actor is under the control of the defendant in some way, and the harm is foreseeable.

We have used negligent undertaking law to sue the government for the actions of a soldier who killed his wife and neighbors while off-base following a domestic violence incident, only because we were able to truthfully plead that the military had undertaken a duty - in that particular case - to assist the battered spouse, there were Department of Defense regulations for how to handle domestic violence incidents which were not followed, and foreseeable harm resulted from deviation from the DOD orders. A negligent undertaking occurs when one, gratuitously or for pay, undertakes a duty to another and then performs that duty negligently, and harm results. It is essentially “bad Samaritan” law. If someone tries to be a good Samaritan, and makes things worse, he is responsible for making things worse than if he hadn’t gotten involved.

Immunities

The government is entitled to utilize any defenses available to a private litigant under the state law sued under, and is also entitled to utilize defenses or immunities in federal law, if the tort arises under federal law. If a tort claim is premised, for instance, on failure to report a military criminal to the federal NICS database for gun purchases, the Brady Bill that created NICS also created immunity for certain classes of reporters. Thus, to bring suit, an attorney needs to find a way around government immunity in this specific context.

Procedural Traps

A plaintiff who is going to sue the federal government must give the government notice of the claim in sufficient detail to allow the government to determine if it is liable. The plaintiff also has to give the government notice of the damages in issue and support those damages. The government has six months to make a determination of whether it wishes to pay the claim. The statute of limitations should be tolled during this time-period of government review.

What this means in practice is that a plaintiff must have a very good handle on the facts of his or her case, what the law is that shows there is liability, have medical records, billing records, and a damage model. The plaintiff is likely to be limited to the amount of damages claimed.

It is best practice to have the claim documents to the government more than six months before any state statute of limitations is going to run. This will put to rest any arguments about the statute of limitations running during the tolling period.

No punitive damages, interest, jury trial - contingency fee capped

There are no punitive damages allowed in a FTCA claim and there is no pretrial interest allowed. Those things should not be claimed and not pled in the lawsuit when the government denies the claim. Contingency fees are also capped at 25%. There is no right to a jury trial. The case will be tried to a federal judge.

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The Federal Tort Claims Act provides a way to sue the federal government for the negligence of government actors, but the door it opens is very narrow, there are trap doors throughout, and whoever tries to go through the doors had better have a solid plan before trying the journey. It can be done in some cases, but attorneys experienced in FTCA law and in state court tort law are needed to navigate the interplay of the two bodies of law.

We are happy to discuss potential personal injury cases against the federal government to see if a viable case can be brought. Due to the procedural requirements of the cases, and the potential pitfalls, it is best to start work on the cases very early.

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Joseph M. Schreiber

Founding Partner

Erik A. Knockaert

Founding Partner