CLAIMS AGAINST THE UNITED STATES FOR INJURIES AND DEATH

By admin

One day on your way to work you’re stopped at a red light when you are hit forcefully from behind. You get out of your vehicle and the first thing you see on the other car is a federal emblem. You can’t believe you’ve just been injured by an employee of the United States government. Can you recover monetary damages for your injuries and damage to your car?

Under old English law that was followed by the states for many years, a person who was injured by the King (or the United States government) or an agent or employee could not sue the King for his or her injuries (or the death of a loved one). The rule used to justify this denial of the right to sue was that “the King can do no wrong.” This is known as “sovereign immunity.” In a 1907 decision of the United States Supreme Court, the eminent jurist Oliver Wendell Holmes explained that a “sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.”

Governmental immunity was pretty much the rule in the United States until 1946, when Congress passed the Federal Tort Claims Act (FTCA). Before the FTCA was enacted, a person who was injured by a federal employee or agency or dangerous condition of federal property, had to have a member of Congress introduce a private bill to get compensation for his or her constituent’s injuries or death due to the negligence of a federal government employee. With the 1946 passage of the FTCA, it is no longer necessary to have your congressman or congresswoman get a bill approved authorizing payment of our injuries. Today, under the provisions of the FTCA, the United States can basically be held liable in the same manner and to the same extent as a private individual under similar circumstances.

The FTCA permits a person who has been injured by a United State’s employee to sue the United States in federal court to recover money damages “for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while 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.” Put simply, if a private citizen would have been held liable for his or her wrongful conduct, then the United States is similarly liable, so long as this type of injury is not specifically excluded by the FTCA.

The FTCA expressly recognizes 13 exceptions in which the United States cannot be held legally liable even though it was at fault. The most frequently asserted defense by the United States is that the employee or agency was exercising or performing a discretionary function or duty, whether or not the discretion involved was abused. Under the “discretionary function” exception, the FTCA specifically states that the waiver of immunity from lawsuits does not apply to any claim “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.”

Other exceptions to the FTCA include that the federal government is not liable for enforcing unconstitutional statutes, for any claim arising out of the loss, miscarriage or negligent transmission of letters or postal matter, for actions of the military in time of war, for damages caused by the fiscal operations of the Treasury Department or regulation of the monetary system, for collecting custom duties, for claims arising in a foreign country, for most intentional torts—such as assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights—and for several other kinds of claims. However, the federal government can be held liable for conduct or omissions of investigative or law enforcement officers of the United States Government involving assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. “Investigative or law enforcement officer” means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.

The United States Supreme Court has placed other limitations on the scope and effect of the FTCA. In the well-known Feres case, the United States Supreme Court held that active members of the armed forces and their families cannot sue the federal government for injuries arising out of or in the course of activity related to military service.

The FTCA defines “employee” as including officers or employees of any federal agency, members of the military or naval forces of the United States, members of the National Guard while engaged in training or duty, and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently, in the service of the United States, whether with or without compensation.

A person who has been injured by the carelessness (“negligence”) of a United States’ employee has two years to file a claim with the appropriate federal agency. That claim must contain enough facts to give the agency notice of the plaintiff’s version of how the accident happened and the claim must ask for a “sum certain” of money. The claim must be submitted on the U.S. government’s Standard Form 95. The federal agency then has six months to allow or deny the claim. If the injured person does not receive a decision from the federal agency within six months, he or she may assume that it has been rejected and is then free to file a lawsuit against the United States in federal court.

When, say, a family of five gets into an accident caused by a federal employee, five separate claims must be filed with the appropriate federal agency, one for each person injured. Only one claim may be presented for wrongful death. Parties in interest in federal wrongful death cases are limited to the surviving spouse, children, and dependent parents.

If the person does not hear back from the federal agency within six months as to whether the claim is approved or denied, the victim can then file suit in federal court. As for the “sum certain” that the plaintiff is required to state in his or her claim to the federal agency, if he or she later files a complaint against the United States, the monetary damages he or she is seeking cannot exceed the sum certain contained in the notice to the federal agency, unless the increased amount in the complaint is based upon newly discovered evidence not reasonably discoverable at the time the claim was presented to the federal agency.

Under the FTCA, the laws of the state in which the negligent act or omission occurred that give rise to the suit apply. Civil personal injury and wrongful death laws are not uniform throughout the United States. What might be considered a compensable civil wrong in one state may not be so considered in another state. Where the negligent act occurred in California, then California law applies to the substantive claim.

To prevail in a lawsuit against the United States government, it is essential to prove negligence or other fault (“unlawful conduct”) by the United States employee(s). Cases cannot be brought against the United States for strict liability (that is, liability without fault). Attorney’s fees are limited to 20 percent if the case settles before a complaint is filed, and 25 percent after the complaint has been filed with the court.

Damages recoverable in a personal injury case against the United States include economic damages (also known as “special damages”), such as past, present, and future medical expenses, lost past and future wages, loss of earning power, and damaged or destroyed property. Non-economic damages (also known as “general damages”) are those damages that are more intangible but no less important than economic damages. In fact, in many cases, non-economic damages are significantly greater than economic damages. Non-economic damages include such things as pain and suffering, loss of enjoyment of life, inability to engage in usual activities, disfigurement, and emotional distress and other psychological injuries.

Punitive damages, which are designed to punish someone who has intentionally and deliberately hurt another person, are not recoverable from the United States government, regardless of how deliberate, outrageous, and heinous the federal employee’s conduct was. The United States also cannot be held responsible for prejudgment interest.

When a married person is seriously injured and unable to perform sexually, the other spouse has his or her own claim for “loss of consortium,” which includes not only lack of sexual services, but also company, society, cooperation, affection, and aid. Loss of enjoyment of life includes such things as impairment of mental health, disfigurement, loss or impairment of senses, inability to participate in daily, family, or recreational activities, interference with childbearing and childrearing, interference with sexual relations, and shortening of life expectancy.

In a wrongful death case, the survivors are entitled to recover loss of financial contributions and support, loss of services, loss of nurture, guidance, care, and training by a child, loss of society, comfort, love, and affection, and loss of inheritance or net accumulation.

Once a person files a complaint against the federal government, the FTCA lawsuit becomes the plaintiff’s exclusive remedy, regardless of any statute that expressly or impliedly permits actions against a designated agency. Unlike state courts, where the injured party has the right to choose between having the case heard by a jury or by a judge, civil cases under the FTCA must be filed in federal court and are heard by the judge without a jury.

Our Law Firm has experience in diligently representing clients who have been injured or had a loved one killed due to the negligence of a government employee. We understand the physical, financial, and emotional toll the injury takes on the injured victim and his or her family or the effect a wrongful death due to the negligence of a federal employee can have on the deceased’s loved ones. We will work our hardest on your behalf to get you the maximum recovery possible.

If you have been injured or a loved one killed in an accident involving the federal government, you should contact an experienced personal injury law firm as soon as possible. It will be necessary to file a claim for a “sum certain” with the appropriate federal agency within two years of the accident, and file a lawsuit within six months after the claim is turned down or six months have passed and you have had no response from the governmental agency. An experienced personal injury attorney will know how and where to file this claim on your behalf and which specialized form the particular federal agency requires claims be submitted on.

It is also important to contact an experienced personal injury law firm as soon as possible after the accident, as the law firm may want to send its own investigator to the scene of the accident to inspect and take pictures of the accident site and any dangerous condition that caused or contributed to the accident, especially before the government or its employees change the conditions where the accident occurred. The attorney or his or her investigator will also want to talk to any witnesses to the accident while the facts are still fresh in their minds.