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Frank Pasternak & Associates S.C. has changed its name to Pasternak & Zirgibel S.C. Please go to www.injurywisconsin.com for more information.Personal injuries and wrongful deaths caused by federal employees typically fall within the scope of the Federal Tort Claims Act. These should not be confused with the Federal Employer's Liability Act (FELA), which deals with railroad workers and employees who suffer job-related injuries. The following is not legal advice, and may be out of date, please treat it simply as an abstract of some past aspects of the Federal Tort Claims Act:
In 1946 the Federal
Tort Claims Act (FTCA) established a system for filing claims against the United
States. This means an individual may sue the United States for money damages,
loss of property, personal injury, or death provided circumstances fit within
the strict limits of the FTCA. The FTCA permits recovery of money damages
because of a negligent or wrongful act or omission by the Federal Government or
an employee of the Federal Government while the employee was acting within
his/her scope of employment or office.
The following laws and regulations govern the procedures and processes for administering claims against the Government:
FTCA (28 U.S.C. 1346(b), 2401(b), and 2671-2680
Department of Justice (28 CFR 14)
General Accounting Office (7 GAO 21.20)
Agriculture (7 CFR 1.51 and 2.31, and Departmental Regulation 2510-1)
Negligent or Wrongful Act or Omission
Under the FTCA, the United States is liable for money damages for loss of the claimant's property, personal injury, or death caused by the negligent or wrongful act or mission of any employee of the Government while the employee was acting within the scope of his/her office of employment.
Proof of Negligence. The claimant must prove that there was a negligent or wrongful act or omission by an employee of the Federal Government.
Proximate Cause. The alleged negligent or wrongful act or omission must have actually caused the damage to the person filing suit.
An employee of the Federal Government must have committed the negligent or wrongful act or omission. The Act extends liability to include agents of the Federal Government or non-Federal employees working on joint ventures or cooperative agreements.
To determine liability for actions involving non-Federal employees under the FTCA, ask the following questions:
Was the non-Federal employee performing a function in support of a Federal requirement?
Was the non-Federal employee working on behalf of the Federal Government in support of a Federal requirement at the time of the accident or incident?
If yes, the Federal Government may be liable for any damages incurred under the FTCA.
Scope of Employment
The negligent or wrongful act or omission of employees of the Federal Government must have been committed while employees were acting within their �scope of employment.� State law determines the definition of scope of employment. This may/may not be the same as the Federal Government's definition of �official duties.�
The Drivers Act section of the FTCA gives statutory immunity to Federal employees while driving Government vehicles within their scope of employment. This means a Federal employee involved in an accident while driving a Government motor vehicle in his/her scope of employment cannot be sued as an individual.
State Where Act or Omission Occurred
A program activity that causes loss or damage to an individual may be considered negligent and liable in one State and not in another. The determining factor is the common law of the State.
Common Law. The common law for a State is a system of law based on judicial precedent. This is not limited to State statutes. In addition to State statutes, the interpretations and developments of these statutes that the courts have handed down over the years also are State law.
Liability under the FTCA is based on what the courts have determined to be common law of torts in that State. The Federal Government is not protected by any State restrictions imposed on filing suits against a State, county, or municipal government. If a private person or company is liable under the tort laws of the State, the United States is liable in like circumstances.
Analogous Duty. Conversely, if the State law does not consider an activity or action to create liability under State law, an individual cannot file a claim against the Federal Government under the FTCA. This is called the doctrine of �analogous duty.�
Federal Employees Liability Reform and Tort Compensation
protects Federal employees from personal liability for common law torts if they were acting within the scope of their office of employment. The U.S. Attorney General certifies as to the employee's capacity at the time of the incident. If the Attorney General denies certification, the employee can petition the Federal Courts. If the Courts denies the certification, they will remand the action to the State Court;
provides citizens with an exclusive remedy against the United States;
restores the liability protection for Federal employees; and
does not provide immunity from personal liability as a result of civil action brought for violation of Constitution of the United States or which is otherwise authorized by any Federal statute that specifically provides for personal liability suits.
State employees should
refer to their particular State law on liability, immunity, and indemnity.
When Congress enacted the FTCA, they also listed certain kinds of activities that would be exempt from liability. 28 U.S.C. 2680 lists all the exceptions. However, the ones most often cited are:
Discretionary Function. The FTCA excludes any claim arising out of the performance or nonperformance of a discretionary function or duty. Discretionary functions refer to the policy and planning functions of each Federal agency. Under the FTCA, a Federal agency cannot be sued and held liable for damages resulting from policy or planning decisions of that agency. Discretionary functions do not include policy or planning decisions that violate the norms or guidelines established by the appropriate industry or discipline. An agency cannot claim discretionary function when it violates established norms and guidelines clearly listed in a book or manual.
Intentional Torts. The FTCA specifically excluded any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights. (These exclusions do not apply to law enforcement personnel.)
Misrepresentation. This includes those Federal employees whose duties and responsibilities are to inspect or grade products or provide advice and guidance to the public. If in the performance of these duties an employee was found negligent, misrepresented a product, or caused an erroneous action, the injured party could not sue the Government based on such misrepresentations.
Underlying Duty. The Supreme Court made a distinction between misrepresentation and Federal employees' responsibilities to perform their underlying duties. The Supreme Court ruled that while the injured party could not sue for misrepresentation, the injured party may sue the Government because employees were negligent in performing their duties if such negligence violated a duty under State law. If a claimant can prove damage by a negligent or wrongful act or omission of Federal employees in the scope of their employment, the claimant can sue under the FTCA.
Good Samaritan Doctrine. Many have recognized what is commonly referred to as the �Good Samaritan Doctrine.� This doctrine says although a person does not have the duty to perform a certain task, if that person voluntarily assumes that task and is negligent in the performance of that task, that person can be held liable for any damages incurred. The Supreme Court ruled that if State law recognized such a duty, the claimant could prove that a Federal employee voluntarily undertook the duty, did it negligently, and the claimant was damaged by the action. The claimant could then be compensated under the FTCA.
Interference with Contractual Relationships. This exclusion covers situations generally arising out of program activities in which an outside party claims a loss of some business due to some action of the Federal Government. This usually occurs when a company claims that a Federal agency did something which barred or interfered with their ability to get, keep, or not lose some business the company had with another outside party.
Quarantine. A cause of action arising out of the way the Department administers quarantines is not suable under the FTCA. This applies to all quarantines, including the quarantine of areas, animals, crops, goods, etc.
Cause of Action Arising in a Foreign Country.
The United States is not liable for any cause of action arising in a foreign
country. If the negligent or wrongful act or omission by an employee of the
Federal Government took place in a foreign country, the injured party could
not sue the United States under the FTCA. The Government would be liable,
however, if the claimant could prove that the injury received was the result
of negligent or wrongful act or omission which took place in the United
The statute of
limitations is the time limit an individual or company has to file an
administrative claim, in writing, with the appropriate Federal agency. The
statue of limitations under the FTCA is 2 years from the date of the accrual of
the claim. The accrual of a claim begins at the moment the Government violated
an individual's rights and the individual was damaged. In some cases, the
accrual of the claim is not easy to determine and may be subject to
interpretation by the court. While the court cannot change the 2-year statute,
they can interpret the date on which it begins.
To initiate a claim against the Federal Government under the FTCA, the claimant must file an administrative claim with the appropriate Federal agency within 2 years of the accrual of the claim.
A valid administrative claim is when the appropriate Federal agency receives a written demand for money damages, indicating a specific dollar amount, signed by the claimant or someone authorized to sign for the claimant, identifying the cause which led to the claims.
Appropriate Federal Agency
The Federal agency whose program resulted in the claim must receive an administrative claim. If another Federal agency receives the claim, that agency will immediately forward the claim to the appropriate agency, if known. If the agency cannot identify the appropriate agency, the agency must return the claim to the claimant.
Written Demand for Money Damages
A claim against the Government must be in writing and must include a demand for money damages. The claim may be a letter, form SF-95, Claim for Damage or Injury, or other written communication which meets the requirements of an administrative claim. (See Exhibit 1 and Exhibit 2.)
Claimants may use form SF-95 to file a claim under the FTCA. However, if this form does not contain all the requirements of an administrative claim, then it is not a valid claim. In addition, not all complaint letters that request money are claims under the FTCA. Some complaint letters are simply complaint letters and should be treated as such.
All written communication from a party alleging damages and indicating an intent to sue the United States for money damages should be checked against the requirements of claim under the FTCA.
Specific Dollar Sum
An administrative claim must contain a single dollar amount which represents the exact amount of money damages demanded by the claimant. It does not have to be a reasonable amount but it must be a number. Claims which do not contain an exact dollar amount or contain a dollar amount with a qualifying statement such as approximately, at least, almost, etc., do not meet the requirement of listing a specific sum.
Signature of Claimant
An administrative claim must contain the signature of the party demanding damages or someone authorized to sign for the claimant. If someone signs the administrative claim other than the claimant, such as an attorney or an insurance company representative, evidence of authorization must accompany the claim signed by the claimant. A copy of a retainer agreement, an affidavit, or a letter must accompany a claim signed by an attorney for the claimant, signed by the claimant, authorizing this attorney to represent the claimant in this case. A statement in a claim signed by an attorney or enclosed in a letter that states that they are representing the claimant is not an acceptable statement of authorization. The claimant must sign the evidence of authorization.
Identification of the Cause
The FTCA obligates the claimant to identify the activity or incident which caused the claim. The claim must contain sufficient information for the agency to identify the cause of the complaint. This is to provide the agency an opportunity to investigate the case.
Filing a claim in a
Federal or State court does not constitute an administrative claim. An
individual who initiates an action against the United States by filing a claim
in a Federal or State court is not relieved of the requirement to file an
administrative claim with the appropriate Federal agency within 2 years of the
accrual of the claim.
Claimants can file three types of actions against the United States that do not have to meet the requirements of an administrative claim. In these three actions, the United States has already initiated a suit against the party filing the claim. The United States has only 60 days to respond to these types of actions. Since these cases involve short time limits, the Tort Claim Representative (TCR) must prepare a prompt response to the Office of General Counsel's (OGC) request for an administrative report. These actions are:
A party which the United States is suing may file a counterclaim in that action. A counterclaim does not have to arise out of the same action which caused Government's suit but can be based on a separate incident entirely.
A cross-claim is a claim between two parties. In a cross-claim, one defendant is suing another defendant or one plaintiff is suing another plaintiff.
Third Party Claim
In a third party suit, one party to the suit is suing another outside party. For example, a defendant in a suit filed by the United States can file a third party claim alleging that the liability for the damage incurred by the Government rests with a third party.
If you wish to know whether the firm can help with a Wisconsin personal injury or wrongful death case, please call (262) 785-0802 or send email to email@example.com. Wisconsin lawyers may only practice law in Wisconsin. Wisconsin attorneys may however work at no added fee or expense with personal injury lawyers and wrongful death attorneys outside Wisconsin and Wisconsin lawyers may be admitted to practice on a temporary basis outside Wisconsin. Thus, the firm may help with Wisconsin Personal Injury cases and potentially with cases outside Wisconsin. All inquiries are free and without obligation.