The Federal Tort Claims Act does not permit a mother who was mistakenly told that her son (a solider ) was dead to sue for emotional distress.
Ms. Nabjur sent her son a letter and it was returned with a red stamp bearing the word "DECEASED." (Isn’t that nice?). The good news: her son was still alive. The bad news: it took some time to figure that out. She sued the government for negligent and intentional infliction of emotional distress and negligence per se.
The United States Court of Appeals for the Eighth Circuit affirmed dismissal of the claim, holding that the government was immune from this type of suit. What barred the claim? The FTCA’s waiver of sovereign immunity does not apply to "[a]ny claim arising out of . . . misrepresentation," 28 U.S.C. § 2680(h), or "[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter," 28 U.S.C. § 2680(b). Thus, the government successfully argued that Najbar’s claims arose out of either a misrepresentation (i.e., my son was alive when you told me he was dead), or lost, miscarried, or negligently transmitted mail.
The decision serves as a handy reminder that although the federal government has waived its immunity for certain types of torts there are still many limitations on a citizen’s ability to sue the government in tort.
The case is Najbar v. United States, No. 10-3015 (8th Cir. Aug. 12, 2011).