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The Federal Tort Claims Act: Making a Claim against the United States of America in Tort

Posted on in Personal Injury Attorney

The Federal Tort Claims Act (FTCA) is one of the earliest forms of Tort Reform. While today, most FTCA claims are against the Post Office, the FTCA finally came to fruition after a tragic, 1945 event where a United States Military bomber pilot crashed into the Empire State Building. The pilot who was flying service men from Massachutes to Laguardia Airport flew his plane through thick fog, attempted to land in Laguardia Airport without clearance. Flying with near zero visibility, he crashed his plane into the Empire State Building. The crash killed fourteen, including the pilot himself. Following the crash, when family members of those killed and injured attempted to seek recovery, they were barred from suing the government by sovereign immunity as the pilot was acting in his capacity as a government agent. Even though, the United States Government offered the families monetary compensation for their loss, several of the families declined and proceeded with a law suit against the US Government. Those lawsuits seemed to be the final push legislators needed to finalize the contents of the FTCA. While the FTCA wasn't enacted until 1946, it was made retroactive to allow families of the 1945 plane crash to recover under it.

In theory, the FTCA should be a great thing; it benefits people injured by the negligence of a government employee or agent. It was created as a way to simplify the process of recovery against the US Government. However modern practice of the FTCA is anything but simple.

Under the FTCA, the government can 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. S 1346(b). When you may sue under the FTCA is relatively clear, actually suing the government under the FTCA is a legal minefield full of technicalities and deadlines. Since Governments are generally protected from lawsuits by the theory of sovereign immunity, the FTCA's purpose and intent is to waive its sovereign immunity. The FTCSA essentially creates a contract, so the deadlines the FTCA specifies aren't simply limitation periods; they are the terms of the Government's consent to be sued. The government hasn't consented to be sued for any claim brought outside of these terms, so any claim that doesn't strictly adhere to the terms will be unsuccessful.

Each step needed to satisfy these deadlines comes with its own set of specific requirements. The statute of limitations isn't simply satisfied by filing a law suit. A detailed claim must be first presented to the government agency. If the form and documentation you submit is faulty, or you don't specifically state the dollar amount you are seeking, this could potentially bar you from recovery.

Additionally, you must “exhaust administrative remedies” before filing suit in District Court. This means you must attempt to settle directly with the government agency before filing suit. The government gets six months to respond to your claim. If they don't respond in six months, then the claim is ripe for a lawsuit. However, if they deny the claim, another time limit of six months is imposed where you are allowed to file a lawsuit. Often times attorneys and claimants just hear nothing in response.

These narrow windows of opportunity to file lawsuits and strict guidelines to achieve recovery under the FTCA are so burdensome and stressful that lawyers are hesitant to take on a case unless it has a very high potential for recovery. In addition to the relatively complicated procedural process, the FTCA caps attorneys' fees at 25 percent. Keep in mind, your opposition on these cases is the US Attorney's office. Not only are these some of the most skilled lawyers in our field, they are well versed in the intricacies of the FTCA and the potential pitfalls in Federal Court. These can be great deterrents for attorneys when evaluating a potential new case.

While it allows citizens to sue the government, the FTCA does not make it an easy process.

Erin Sievers of Newland & Newland, LLP graduated from St. Louis University School of Law in 2009 and has focused her practice on representing injured parties in Missouri and Illinois since that time.

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