Articles Posted in Federal Tort Claims Act

I am one of the those personal injury lawyers who doesn’t win every case.  The  loss in Kohl v. United States of America is particularly difficult.  First, we have a wonderful client who I truly believe has a valid claim.  Second, the opinion in this case makes it very difficult for anyone to establish subject matter jurisdiction in any type of Federal Tort Claims Act (FTCA) case other than those arising from classic motor vehicle crashes.

Debbie Kohl, a member of the Nashville Bomb Squad, received a serious brain injury during a training exercise.  While Debbie was partially inside a van looking for explosives, an ATF agent tried to wench open a door on the van, causing the van to shift and hit Debbie on the head.

We brought an FTCA claim on Debbie’s behalf, alleging that the ATF agent was negligent in his operation of the wench and in failing to warn her that he was going to use it.  The Federal Government denied liability, and argued that the court did not have subject matter jurisdiction in the case because the ATF agent was engaging in a discretionary function.

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.

Judge Mays of the United States District Court in Memphis has dismissed a medical malpractice case filed against the United States under the Federal Tort Claims Act because the plaintiff did not file a certificate of good faith as required by T.C.A. Sec. 29-26-122.

Judge Mays held that the federal courts should apply Tennessee substantive law on the issue and that the failure to file the certificate required dismissal of the case.

The judge also dismissed the loss of consortium claim brought by the medical malpractice plaintiff’s spouse, saying that her claim was derivative to her husband’s claim and since his claim was rejected for failure to file the certificate the loss of consortium claim was also barred.

It is not just the Tennessee Governmental Tort Liability Act that has a discretionary function exception – the Federal Tort Claims Act has one, too.

This case – Navarette v. United States – discusses the exception and applies it to a case filed after a person fell off of a cliff at a Army Corps of Engineers’ park.  The case includes a dissenting opinion, and thus gives you an opportunity to see two different views of the doctrine.

The opinion, released by the 9th Circuit on August 29, 2007, may be read here.

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