FTCA Claims Against the Federal Government

While many personal injury claims involve other individuals (such as drivers) or businesses (such as manufacturers), many people in Massachusetts suffer harm due to the federal government. The right to file a personal injury claim against it is governed by the Federal Tort Claims Act (FTCA).

At Santoro & Gray, our FTCA claim lawyers understand when you can sue the federal government, what types of negligence the government may be liable for, and what damages you can recover. Our trial lawyers also understand that FTCA claims are more complex than standard injury claims. Contact us today to learn more.

What is the FTCA?

The Federal Tort Claims Act permits accident victims to file personal injury claims against the government for the negligent acts of their employees. Without the FTCA, personal injury claims would be barred due to the government’s sovereign immunity. The FTCA waives that immunity under certain conditions.

Our FTCA claim attorneys understand these conditions, including time limits, procedures, and exceptions.

Negligence is generally determined by Massachusetts law. The FTCA doesn’t have a precise definition of negligence. FTCA liability is generally determined under the tort law of the state where the incident occurred (such as Massachusetts), subject to the FTCA’s statutory exceptions.

For example, if your federal claim involves a car accident due to a speeding or drunk driver, you can file an FTCA claim against the government if the driver was a federal employee, and the driver was driving during the scope of the employment, but the negligence of the driver will be determined by Massachusetts law.

The scope of employment means the employee was working for the government at the time of the accident, as opposed to working (driving, for example) for personal use.

The FTCA administrative claim process

To file a personal injury claim, you must provide notice. Often, the first step is to file through Form 95, “Claim for Damage, Injury, or Death”. We can file the form for you. The form will include a detailed description of what happened, what injuries you have, and a demand for a specific amount of damages.

This form must be filed within two years from the date of the injury (or the date you should have reasonably discovered the injury). If you fail to meet this deadline, your claim may be forever barred.

The federal government will either offer a settlement or deny your claim. The failure of the federal government to investigate and respond to your claim within six months can be treated as a denial.

You must file your FTCA lawsuit in federal court within six months of the date of a denial.

When is the government not liable for the negligent acts of its employees?

You cannot file an FTCA claim if an applicable exception applies. These exceptions include the following:

• Independent contractor exception. The federal government worker(s) who are negligent are not employees; they’re independent contractors. Generally, under federal law, a worker is considered an employee if the employer has the right to control when and how the worker performs their job.

The good news is that if a worker is an independent contractor, you may have a claim against the contractor, the contractor’s employer, or other third parties. For example, if an electrician who works for an electrical company causes your injuries due to careless electrical work, you could file a personal injury claim against the electrical company if the electrician is not an employee of a federal agency.

• The exception for “discretionary functions.” The government may not be liable for an FTCA claim if the employee’s work qualifies as a “discretionary function.” There are two criteria used to determine if the discretionary function exception applies:

o Conduct is not discretionary if a federal statute, regulation, or policy specifically prescribes a course of action that the employee must follow.

o Was public policy at issue? Work that involves political, economic, or social factors may be considered discretionary, barring your FTCA claim.

Our FTCA claims lawyers understand when this exception applies. The answer can be complicated. Workers who drive postal vehicles, trucks, or other vehicles for the federal government must comply with the traffic rules of Massachusetts. If a worker speeds or drives through a red light, for example, their driving is not discretionary, which means that you can file your FTCA complaint (if all the other requirements are met).

Discretionary work may include deciding which resources an agency should use, where to build a project, what designs to use, and what materials to use.

• The exception for intentional torts. Generally, the FTCA bars claims arising out of certain intentional torts listed in 28 U.S.C. § 2680(h), subject to limited exceptions. Although the FTCA generally bars many intentional tort claims, claims involving certain intentional torts committed by federal law enforcement officers (such as assault, battery, false arrest, and malicious prosecution) may still be permitted under 28 U.S.C. § 2680(h).

Generally, drunk driving is not considered an intentional act, which means we should be able to file an FTCA lawsuit against the federal government if one of their drivers’ intoxication (during the scope of employment) causes an accident.

What damages does FTCA authorize?

If we establish liability in an FTCA claim, we can seek the same categories of damages available under Massachusetts law, except that you cannot seek punitive damages in an FTCA claim. You generally cannot recover more than the amount stated in your administrative claim unless you present newly discovered evidence or intervening facts not reasonably known at the time of filing.

We file FTCA claims against the federal government. The defendants in an FTCA claim do not include the employee nor a specific federal agency.

FTCA claims involving ICE and DHS

U.S. Immigration and Customs Enforcement (ICE), which is part of the Department of Homeland Security (DHS), is a federal agency. Claims involving employees from ICE or DHS can fall under the FTCA and are technically cases against the United States. Such claims may involve:

• Excessive use of force during an arrest, detention, transport, or enforcement action
• False arrest
• False imprisonment
• Negligent medical care or neglect in federal custody
• Unsafe detention conditions resulting in injury
• Negligent transportation, supervision, or security
• Wrongful death caused by negligent or wrongful conduct

The FTCA generally excludes many intentional torts. However, there is a limited law enforcement exception that may apply for assault, battery, false arrest, false imprisonment, abuse of process and malicious prosecution.

Speak with our Boston FTCA claim attorneys now

At Santoro & Gray, we file personal injury and wrongful death claims in federal and state courts. We understand the unique challenges in holding the federal government liable for accidents that their employees cause.

Please call us or fill out our contact form to schedule a free, confidential consultation. We’re here to support you, tell your story, and fight for your truth.