Suing the United States Under the Federal Tort Claims Act
| Publication year | 1985 |
| Pages | 1808 |
| Citation | Vol. 14 No. 9 Pg. 1808 |
1985, October, Pg. 1808. Suing the United States Under the Federal Tort Claims Act
It is a cold, overcast Colorado winter day. A flying club single-engine trainer plane takes off from a local military airfield under visual rules, with a civilian instructor and a student pilot aboard. At the same time, a commuter airliner is cleared for an approach to land at Stapleton International Airport. As the commuter breaks out of the clouds, the pilot realizes he is about to collide with the trainer. Impact occurs before there is a chance for evasive action. A wing is ripped off the trainer. The commuter is able to make an emergency landing at Stapleton but the trainer crashes, killing both occupants.
The widow of the student pilot is now in counsel's office to discuss the release given her by the insurance company for the instructor pilot. The policy has a $100,000 per-seat limitation. Her husband was thirty-six years old and was making $50,000 per year in a research-engineering position. It is a wonder that the two aircraft happened to be occupying the same sky at the same time.
Where were the FAA air traffic controllers? Aren't they required to keep aircraft separated? Is there potential liability on behalf of the United States government under the doctrine of respondeat superior for the air traffic controllers? Is the government immune from suit? What are the special requirements in bringing suit against the government? Is there an administrative procedure that is required before bringing suit?
A review of the Federal Tort Claims Act ("Tort Act") is in order. Congress has decreed that the United States may be liable for injuries inflicted by the negligence of its agents. However, the liability of the United States is not common-law liability. The liability is by statute only, and the statutory provisions must be followed exactly or the claim will be denied.
The United States is liable for tort claims in the same manner and to the same extent as a private individual under like circumstances.(fn1) Notwithstanding this broad grant of potential liability, the United States is immune from liability in many significant areas. The scope of liability is sometimes better defined by its exceptions. Examples where the government is immune from liability under the Tort Act are as follows:
1. There is no liability against the United States for a government officer who exercises due care when enforcing a statute or regulation.(fn2) Of course, if the officer does not exercise due care when implementing the statute or regulations, and no other exception applies, the government may be liable in a suit in tort.(fn3)
2. A federal agency is not liable for the exercise of a "discretionary function or duty" if accomplished with due care.(fn4) This exception has probably been the subject of more opinions than any other exception. The determination of liability often revolves around whether the conduct complained of was at the "planning level" rather than the "operational level." Conduct at the planning level is discretionary and, thus, gives rise to no governmental liability.(fn5)
The United States Supreme Court most recently interpreted this exception to governmental liability in United States U.S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines) and United States v. United Scottish Ins. Co.(fn6) The Varig case involved FAA certification of the Boeing 707 commercial jet aircraft. In these cases, consolidated for appeal, the Supreme Court held that the United States would not be liable for negligent approval by the FAA of aircraft design as long as the approval was made according to its own regulations.
3. There is no liability for the loss, miscarriage or negligent transmission of letters or postal matters.
4. There is no liability for tax or custom duty claims.
5. There is no liability for admiralty claims.
6. There is no liability for claims arising out of war or national defense.
7. There is no liability arising for claims of quarantines.
8. There is no liability arising for claims of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit or interference with contractual rights...
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