Sarah Nilsson, JD, PhD, MAS
Sarah Nilsson, JD, PhD, MAS

Government Liability

Sovereign immunity: citizens could not sue their government

 

Federal Tort Claims Act (FTCA) - 1946 - allows suit "for injury or loss of property or personal injury or death caused by the negligence or wrongful act or omission of any employee of the government acting within the scope of his office or employment, 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."

With few exceptions, the federal government is liable for the consequences of:

1. negligence of government employees who are

2. acting within the scope of their employment with the federal government

3. if a private employer would be liable for that employee's torts under the same circumstances

Exceptions:

- geographic limitation: excludes claims arising in a foreign country - issues of liability for injuries arising out of US military activities in the host nation are addressed on a nation-by-nation basis through separate status of forces agreements (SOFA) between the nations

- combatant activity: does not apply to "any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war." 

- activities incident to military service

- discretionary function: planning and policy making do not subject the government to liability under the FTCA - only operational decision making if negligently done may expose the government to liability for resulting harm - employees of the government - ie. persons acting on behalf of a federal agency in an official capacity - government is not liable for acts of:

AMEs - Aviation Medical Examiners

DARs - Designated Airworthiness Representatives

DMIRs - Designated Manufacturing Inspection Representatives

DERs - Designated Engineering Representatives

ODA - Organization Designation Authorization

IAs - aircraft mechanics holding Inspection Authorizations

- intentional torts

- punitive or exemplary damages

 

Liability for negligent air traffic control

controllers' work is NOT discretionary function

In cases under the FTCA, government employees are held responsible to exercise the ordinary degree of care of the reasonably prudent person - resolved by reference to the Air Traffic Controller's Handbook

For situations not specifically addressed in the Handbook, use the ordinary negligence test - reasonable prudent person

 

Liability for weather-related accidents

 

Liability for negligent airworthiness certification

1. design must be proved to conform to aircraft certification standards contained in the FAR

FAA will issue a Type Certificate approving the design

2. manufacturer must satisfy the FAA that its production and inspection methodology assures precise replication of the design

FAA will issue the manufacturer a Production Type Certificate for the design

3. as each individual airplane is completed, it is inspected and tested for conformity with the approved type design and issued its own FAA Airworthiness Certificate before being delivered to the customer

Subsequent modifications and improvements to the design require additional FAA certification usually under a Supplemental Type Certificate or FAA Form 337 field approval  

 

Administrative Claim Prerequisite to Suit

anyone seeking judicial relief for a wrong is required to first exhaust any administrative remedies the law provides

under FTCA a person is required to file an administrative claim for compensation with the federal government and await a decision on that claim before filing suit

 

9/11 claims 

Victims Compensation Fund

 

Personal Liability of Federal Employees

individual federal employees enjoy protection from personal liability for the consequences of their on-the-job negligence

 

State and Local Government Liability

state governments also enjoy the protection of sovereign immunity

IRIS Corp v Japan Airlines.pdf
Adobe Acrobat document [98.0 KB]
canadian transport co v US.docx
Microsoft Word document [35.6 KB]
Lockheed Aircraft Corp v Superior Court[...]
Microsoft Word document [20.3 KB]
UNITED STATES v Varig Airlines.docx
Microsoft Word document [36.6 KB]
Boyle v UTC.docx
Microsoft Word document [52.6 KB]

Contact Me

Sarah Nilsson, JD, PhD, MAS

 

602 561 8665

 

sarah@sarahnilsson.org

 

You can also fill out my online form.

Get Social with Me

View Sarah J. Nilsson's profile on LinkedIn

Legal disclaimer 

The information on this website is for educational purposes only and DOES NOT constitute legal advice. While the author of this website is an attorney, she is not your attorney, nor are you her client, until you enter into a written agreement with Nilsson Law, PLLC to provide legal services.

Print Print | Sitemap
© Sarah Nilsson