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
- 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
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
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
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
1. Detail the accident at issue and identify the plaintiff and defendant.
2. Explain the concept of “minimum standards” set out in the Federal Aviation Act of 1958 and further explain the following concepts within the context of the multistep certification process associated with the design, construction, and performance of aircraft; (a) type certificate; (b) production certificate; and (c) airworthiness certificate.
3. Describe the types of lawsuits permitted against the government under 28 U.S.C. § 1346(b) of the Federal Tort Claims Act (“FTCA”).
4. Under what circumstances will the government be found liable for tort claims under the FTCA?
5. What is the “discretionary function exception” under the FTCA generally and how was it applied to this case specifically?
Sarah Nilsson, J.D., Ph.D., MAS
602 561 8665
You can also fill out my
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.