Federal Tort Claims Act

Leesfield Scolaro have been successful in securing exceptional recoveries for victims of accidents due to federal and state government's employees' negligence. We handle cases involving aviation, maritime law, and negligent healthcare at government owned or military hospitals.

Like any other institution, the federal government and its employees can harm people through negligent actions. A Veterans Affairs doctor may cause a wrongful death through negligence and medical malpractice. A law enforcement officer may commit a heinous act of brutality that results in serious injuries to the victim. A contractor working on a government project may cause a construction accident.

But suing the Federal Government for the wrongdoing of its employees is different from any other type of case and requires attorneys with specialized knowledge in this area. The trial team at Leesfield Scolaro has a proven track record litigating claims against the U.S. Government. We understand how to make the Federal government pay damages for losses and suffering caused by the negligence of government employees.

The Federal Tort Claims Act (FTCA), is a statute enacted by the United States Congress in 1946 permitting private parties to sue the United States in a federal court for most torts committed by persons acting on behalf of the United States. The 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." Thus, the FTCA does not apply to conduct that is uniquely governmental, that is, incapable of performance by a private individual.

The FTCA further provides that the government is not liable when any of its agents commits the torts of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights. However, it also provides an exception. The government is liable if a law enforcement officer commits assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. The government is not liable if the claim against law enforcement officers is for libel, slander, misrepresentation, deceit, or interference with contract. Congress has not waived the government's sovereign immunity against all law enforcement acts or omissions.

Furthermore, the FTCA is limited by a number of exceptions pursuant to which the government is not subject to suit, even if a private employer could be liable under the same circumstances. These exceptions include the discretionary function exception, which bars a claim "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. S 2680(a).

In order to determine whether conduct falls within the discretionary function exception, the courts must apply a two part test. First, the question must be asked whether the conduct involved "an element of judgment or choice." This requirement is not satisfied if a "federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow." Once the element of judgment is established, the next inquiry must be "whether that judgment is of the kind that the discretionary function exception was designed to shield" in that it involves considerations of "social, economic, and political policy."

The FTCA specifies that the liability of the U.S. is to be determined "in accordance with the law of the place where the [allegedly tortious] act or omission occurred." In an action under the FTCA, a court must apply the law the state courts would apply in the analogous tort action, including federal law. A plaintiff cannot bring an FTCA claim against the United States based solely on conduct that violates the Constitution because such conduct may violate only federal, and not state, law.

For almost 40 years, Leesfield Scolaro has strongly and efficiently represented victims of employees of the government. In a landmark federal Tort Claims Act case for wrongful death, our firm obtained a $3,242,000 settlement against the United States Navy for failure to properly maintain its pier. For a complete list of the firm's representative results, go to our Verdicts and Settlements section.

To contact one of our experienced trial lawyers call our Miami law office today at 800-836-6400 or click here for a free and full case evaluation.