Caps & Immunities
Avoiding A Baker’s Dozen of Pitfalls of Government Tort Claims Acts
Federal, State, and Local
David F. Albright, Jr. & Dawn M. Taylor
“But it is a wholesome sight to see the Crown sued and answering for its torts.”
-- Maitland, Collected Papers; 3, 263
A
lmost a hundred years ago, esteemed English legal historian, Frederic William Maitland penned these words. Today, the mechanisms under which
one may sue “the Crown” endure, yet the journey towards making a federal, state, or local government “answer for its torts,” is fraught with pitfalls that may rob a claimant of recovery for even the most meritorious of claims. Various statutory requirements regarding notice, filing deadlines and attorneys’ fees make holding the government responsible for tortious conduct an uphill battle, lending credence to the oft-repeated tenet “the sovereign can do no wrong.” Tis article discusses a baker’s dozen of federal, state, and local
laws that are potential pitfalls on the claimant’s road to tort recovery from a government entity.
I. Federal Tort Claims Act1 Legislators have enacted statutes at the local, state, and
federal level to provide a remedy to claimants seeking redress for a wrong committed by a government entity. At the federal level, the Federal Tort Claims Act (FTCA) provides a limited waiver of the federal government's sovereign immunity when its employees are negligent within the scope of their employment. Under the FTCA, the government can only be sued “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. 1346(b). When a claimant is seeking to file a claim under the
FTCA, a claimant’s first consideration must be given to the issue of notice. A tort claim against the federal government under the FTCA is “forever barred unless it is presented in writing to the appropriate Federal Agency within two years after such claim accrues.” 28 U.S.C. 2401(b). It is important to note that the date upon which a “claim accrues” under the Federal Tort Claims Act 1346(b) is a matter of federal, not state law. Although the federal courts must look to state law in determining the substantive tort liability of the United States under the Act, the exact point in time when a Federal Tort Claims Act plaintiff knew, or reasonably should have known, of both the existence and the cause of her injury is an issue that is decided under federal law. Pollard v. U.S., M.D. Ala.1974, 384 F. Supp. 304. Once a claimant has ensured that the statutory notice
deadline has not passed, a claimant must provide notice to the appropriate federal agency in the form established by the
statute. Under the FTCA, a claimant should use Standard 1 See Karl J. Protil, Jr., Esq.’s article on page 29, “Te Federal Tort Claims Act: What the Act Does Not Cover,” for more further insight regarding the Act.
Trial Reporter / Spring 2011 21
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