The Federal Tort Ciairna Act. Sovereign Liability Today

• Author: Major James W. Hunt
• Pages: 01

1. THE PLACE OF THE FEDERAL TORT CLAIMS ACT IS THE LAW OF THE UNITED STATES A. Variety of Interpretation

The ProJected impact of the Federal Tort Claims Act' is not measurable in terms of its historical application. To determine the impact of a federal law, one need look no farther than today's newspaper headlines to be aware that its effect is determined, not 80 much by the specific language of its provisions, or even by the intent of Congress in enacting it, as by the interpretations of the federal courts in implementing it. This is true at least until such time as Congress may see fit ta override the interpretations of the courts by amendatory legislation or by the enactment of a new law.

Thus it seems at first glance .a simple matter to make a determination of the courts' previous implementation of the FTCA and using this as a basis, proceed to a reasonable prediction of its future effect. But here is where history itself is the best witness of its own weakness as a window to the future. For the interpretation of the major provisions of the FTCA have been varied and inconstant, and recent decisions have given indication of a tendency towards wider, more liberal application, which, if continued with any degree of consistency, could result in application^ of the act in a manner exactly opposite to that contemplated by the courts which first applied it.

B. General Pmvisions of the ActThe FTCA, enacted on 2 August 1946, provided for Government liability "far money damages occurring on and after Jan.

* This nticle was admted from B thesis Oresented to The Judee Advocate General's School. C.S Army. Chsriottesvili;. Virginia, while theauthor was B member of the Seventh Advsneed Clans The opinians and eancluaians merented herein are those of the author and do not nece86ariiv reareaeat the &wa ai The Judge Advocate General's School nor ans othe; no;ernmental agency

** JAGC, U.S.

Army: member of Didriet of Columbia Bar; graduate of

Boston College Law Sehaal

'The broad pmvisionr of the act are let out in 28 U S.C. I S 2671-2680 (1952) Exclusive juriadietion of c ~ 1 actions on ~lsimiagainit the rnitea States under the set 13 conferred on the dmtnct courts in 28 C.S.C.A 5

1346b (1952).

?A00 4oJ'B--F*br"iry 1

1, 1945, far injury or loss of propertly, or personal injury or death caused by the negligent or wrondul act or omission of an employee of the government while acting within the scope of his office or ernplo&ment, under circumstances where the United Stares, if a private person, would be liable to the claimant in accordance with the lau; of the place where the act or omission occurred."'

C. Historical Deuelop,nent

It is not surpriaing that the federal courts initially applied the proiisions of the act with considerable caution. The concept of a sweeping waver af governmental immunity 8s a result of a general legislative act \%as something new in the Cnited States, although the earliest awakenings to the just basis for the creatian of such liability may be found far back 1-1 this country's history.'

AB time elapsed and litigation under the act arose and increased and became commonplace, the federal courts in many instances appeared to depart from their almost timid original approach and to wield their damage-assessing powers against the United States xith greater temerity and resultant expansion of liability findmgs and substantial Judgments. Some recent cases indicate that this tendency is still far from its peak:

This is not to say that there has been a deliberate, step-bystep well-mapped campaign to extend potential recovery under the FTCA and to increase Government liability thereby. Far from it. In point of fact there haw been, and are still, courts and court members who have held fast to the principle of strict, cautious canatructian of the act, and recent cases exist where

' 28 U S.C 5 1316B 11952)a An analytml exarnm.tm af the hirtancal derelapmert of this concept may he found ~n an article on "The Federa: Tart Claims Act" by Mr F. G. Hudaon in 22 Tu1 L. Ray. 29 119471. which cites nmow other references statements by John Quine). .?.dams in 1832. and by .?.b?aharn Llneoln in 1861. reeagrimng the duly of the Gowrnrnent to proiide for ludmal deter. mmarion af the clalrnl of 1t3 eirizers

a E g , Indian Toaing Ca. ,- Knired State?. 350 K.$ 61 (19551, Rayar.ler, Inc. v Umted Stares. 352 US. 315 11967). 11 Builder: Carp. of America Y United Stater. 269 F 2d 766 (9rh Clr 19531, the eourr aald pertlnentlv. "In the area of gaiernrnental rerpannb~lity far the acta of 1Is apentl. the law 1s in a state of flux . . Recently. interpretation has izrtli enlarged the sphere of rejponmbihtu of government."

2 *'O ""IB

THE FEDERAL TORT CLAIMS ACT

this principle has been enunciated.6 It is merely postulated that certain extensions in recovery and certain increases in Government liability have indeed taken place coincident with the development of legal thought on the application of the act, and perhaps with the appointment to the federal courts of more liberal-minded judges. It may be worthy of note in the latter connection that six of the nine Justices who sat on the bench of the Supreme Court of the United States at the time of the enactment of the FTCA and the determination of early cases thereunder have Lime exchanged their black judicial robes for either the mufti of retirement or the white robes of eternity.

D. Government Tort Liability in Othe, CountriesPart I1 will trace the development in judicial interpretaion of the FTCA. A consideration of the manner in which courts of other countries haw treated the theory of sovereign liability will provide an enlightening background for an analysis of the evolution of this doctrine in the United States.

1. The Doctrine in England

In England, the counterpart of the FTCA is the Crown Proceedinge Act of 1917, which took effect on January 1, 1948. In the words of an English Professor of Laws, this act is intended in appropriate cases "to put the Crown in its public capacity in the same position for the purpose of the 1s.w of tors as a private person of full age and capacity."O The English Act, though following the FTCA in point of time, provides by its terms a broader area of sovereign liability. Although the volume of litigation under the Crown Proceedings Act has apparently been less than that produced by the FTCA,. analysts in this

'Wade, Liabihty in Tort of the Central Government of the Emted Kinp- 'Id. at 1421.

&Eo to818 3

In a diaienting opinion in Indian Towing Co v United States, SZWT~.

note 4, at 75. Mr. Justice Reed (joined in hn diarent by Mr Justice Burton. Mr. Justice Clark. and P r Justice Illintan) felt that "In dealing aith this enlarged concept of federal liability far torts, wisdom rhauld dictate B

cautious sppraaeh. . . ." See aiio Burna Y United States, 240 F 2d 720. 728 (4th Cir. 1957). vhere the court in construing the Federal Tart Claims Act. spplied the negative principle "that suit may not be maintained against the United States in any caie not clearly within the terms of the statute bs uhich it consents to be sued."

dam. 29 bY.E.L. Rei 1416, 1421 (1954).

field hare agreed that the former provides extensive coverage," and in fact surpasses the latter in this regard.O

2. The Doctrine in Germany

The present laws of Government liability for the torts of Its agents in Germany can trace their origin in some part to principles established by German courts during the aixteenth century.%' Yet it was the early twentieth century before statutes providing for such liability became general in the German states.,' Today the trend is to ever-widening Government liability, based on the underlying concept that where the citizen "suffers special damages in the interest of the communitv he should be compensated and the loss be borne by the communi

3. The Doctrine in France

It 1s in France that this doctrine has reached its widest application. The princ~ple of State liability to citizens injured by State administrative actions came to the fore in the nineteenth century, during which, as one writer puts it, the maxim "The King can do no wrong" was superseded by the saying "The State is an honest man,''Ld meaning that the State desires to repair damages done by its wrongful acts. The term "its wrongful acts" is sipnifieant, for Government tort liability in France is not pre-dicated on the agency theory, arising from the torts of Government ernployeea, as it is under the FTCA. Rather, it stems from the fact that, in causing injury, the public service itself has been defective. apart from a fault of any specific Government em- This basic difference from United States law has permitted French courts to built up an expanding theory of eovernment liability without fault Under the French system. "the state

ployee."

a Id at 1422,1424

N.Y U L. Rev 18 at48 (19581"Braband. s?me note 9. at 34

Id at 43

I"

Id st 48

Is Behrarlz, Public Tort Liability in France, 29 U Y U L Rev 1432. 1138 "Jamby. Federal Tort Claims Act and French Law ai Governmental

.Id at 267

(1851)

Liabilltn. B Camparatlie Study, 7 Vand L Rev. 246. 260 (1854)

bilitp Symposium, 29 S.Y.U

L Rer 1321, n Tort of the Gaiwnment and its Em-E rith Ernphana on German Lar, 33

THE FEDERAL TORT CLAMS ACT

takes all responsibility for injuries caused by government operations that created, irrespective of negligence, an exceptional risk for the publi~."'~ Thus in France today anyone injured as a result of an official function by an administrative officer is entitled to compensation an a sort of social insurance theary.17 It is extremely important to note that although the French law of tarts is codified, Government liability under such law is not codified, but is almoat completely judge-made.IB

4. Compweiire Law

Writers in the field of comparative law seem to agree in stressing the fact that the United States has moved very slowly in assuming liability for wrongs committed by its employees, and in urging expansion of such...