Federal Tort Claims Act

• Author: Jeffrey Lehman, Shirelle Phelps

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Enacted in 1946 the Federal Tort Claims Act (FTCA) (60 Stat. 842) removed the inherent IMMUNITY of the federal government from most TORT actions brought against it and established

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the conditions for the commencement of such suits.

The FTCA permits persons to sue the government of the United States in federal court for

money damages,?for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, 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.A. § 1346(b))

In passing the FTCA, Congress allowed the federal government to be sued. Congress also made specific exceptions to the act, and the U.S. Supreme Court has interpreted one provision broadly, both actions resulting in the dismissal of many plaintiffs' lawsuits.

In consenting to be sued, the federal government waived the SOVEREIGN IMMUNITY it had enjoyed in the past. Justice OLIVER WENDELL HOLMES JR., in Kawananakoa v. Polyblank, 205 U.S. 349, 27 S. Ct. 526, 51 L. Ed. 834 (1907), explained that a "sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends." As early as the 1821 case of Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 5 L. Ed. 257, the Supreme Court recognized the sovereign immunity of the United States.

Nevertheless, during the nineteenth century, Congress consented to let the federal government be sued in several causes of action. Congress established the Court of Claims in 1855 (28 U.S.C.A. § 171) to entertain contract actions against the United States. The passage of the TUCKER ACT (28 U.S.C.A. § 1346[a] [2], 1491) in 1887 broadened that court's jurisdiction to include designated nontort actions, including EMINENT DOMAIN cases. But, until 1946, there was no readily accessible remedy for tort actions brought by citizens of the United States. The routine recourse was for members of Congress to introduce private bills for constituents who had been injured by government NEGLIGENCE. Congress eventually recognized that the private bill method was not an effective way to deal with the problem and passed the FTCA.

Now a person who alleges that an employee of the...