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.
An experienced personal injury law firm can also help with seeing to it that you obtain appropriate and thorough medical care for your physical, emotional, and psychological injuries suffered as a result of the accident. They can also do everything possible to ensure that you obtain full compensation for your medical expenses, pain and suffering, mental anguish, property damage, lost wages, and all of your other injuries and damages
By admin
Having a strong military air presence is critical to the safety of our nation and democracy throughout the world. We ask our men and women in the military to sacrifice their lives in the service to their country. It is only fitting that we should provide them with the best and safest equipment possible. America is deservedly proud of its air force and is the envy of all other nations. Our military aircraft provide a host of things: flying combat and bombing missions in times of war, providing relief aid to impoverished areas or areas that have been struck by a natural disaster, such as a hurricane or flood, training pilots, mechanics, and others to keep our superiority in the air. Military aircraft accidents happen in various ways: pilot error, substandard maintenance of the aircraft, faulty repairs, defective component parts, or air traffic controller negligence, to name a few.
To illustrate the dynamics of a military aircraft accident, let’s look at one specific case: On December 8, 2008, a United States marine jet—a twin-engine F/A-18D Hornet—had engine problems and was attempting to land at Marine Corps Air Station Miramar in San Diego (the setting for the movie “Top Gun”) when it crash-landed two miles away in University City, plowing into a home and killing the four occupants. The pilot of the craft was able to safely eject from the plane moments before the crash. The right engine of the F-18 fighter jet gave out with an oil leak shortly after it took off from an aircraft carrier on a training flight. Instead of choosing to land at Naval Air Station North Island, on the tip of a peninsula in San Diego Bay in Coronado, the pilot attempted to make it to Miramar Marine Corps Air Station, several miles inland surrounded by residential communities. North Island is approached over water and there are fewer buildings to hit if things go wrong. Air traffic controllers told the pilot three times that he was cleared to land at North Island, according to flight tapes released by the Federal Aviation Administration. As the jet approached Miramar, the other engine failed, and the pilot safely ejected, resulting in the plane crashing into two houses, killing four people inside one house.
After an investigation into the crash, military officials called it “clearly avoidable.” Among the mistakes made was the decision by maintenance crews to allow the aircraft to fly despite reports of a problem with its fuel flow, the decision by the pilot to try to land at Miramar rather than the nearby Naval Air Station North Island in Coronado despite losing function of the jet’s right engine, and a series of “miscommunications and bad assumptions” by the pilots and officers directing him that eventually caused the left engine to “flame out.” As a result of the investigation, four Marine Corps officers were relieved of duty for directing the aircraft to fly over the residential area, and nine other military personnel received lesser reprimands. Officials stated that the pilot should have been told to fly over San Diego Bay and land at Coronado. The next of kin of the four people killed may be able to bring a lawsuit against the United States based on the carelessness (“negligence”) of the pilot, the mechanics, and others.
Suppose a military pilot takes off in a jet but encounters problems with the handling of the jet due to the negligence of the repair crew, causing the pilot to crash the plane and suffer injuries or even death. Can the injured pilot (or a deceased pilot’s loved ones) sue the federal government for his or her injuries or death? No. Under the longstanding Feres doctrine, the federal government is immune from lawsuits for injuries or deaths to servicemembers that occur because of activities that are “incident to service.”
One rationale behind the Feres doctrine is the same as that which prohibits civilian employees from suing their employers. Injured employees are given the right to receive worker’s compensation benefits, even where the injury is due to their own fault, as a trade-off for not being allowed to sue their employers. Servicemen and women are entitled to receive benefits under the Veterans Benefits Act for service-related injuries, akin to worker’s compensation benefits. However, even though the servicemember or his or her next of kin cannot sue the federal government, they may sue the manufacturer of the aircraft, the supplier of a defective product or component that was used in the aircraft, negligent air traffic controllers, subcontractors who performed substandard maintenance or repair work on the aircraft, or any other nongovernmental company whose wrongful conduct was a cause of the accident.
Lawsuits involving military aircraft crashes typically involve a number of people and entities being sued. For instance, there is the federal government, as owner and maintainer of the aircraft; the manufacturer of the aircraft; subcontractors who supplied defective parts or service to the aircraft; air traffic controllers; and others. However, because of procedural legal restraints and laws protecting the government and defense contractors, lawsuits based on, for instance, defective military aircraft or pilot error, are considerably more difficult to pursue than accidents involving civil aircraft.
Investigating a military aircraft accident presents difficulties not found in non-military aircraft crashes. When a commercial plane crashes, the National Transportation Safety Board (NTSB) sends a cadre of experts in various areas of expertise to investigate the accident. Its findings and conclusions are released to the public and may be used by the victims’ attorneys in placing the blame for the accident. In serious military aircraft accidents, a Safety Mishap Board investigates the accident and compiles a Safety Mishap Investigative Report that is kept secret.
Unlike commercial airliners, military aircraft traditionally have not been equipped with cockpit voice records (CVRs) and flight data recorders (FDRs), the so-called “black boxes.” One reason for this is that, if the plane were shot down in enemy territory, the enemy could access the black boxes to determine where the plane had been flying and gather important intelligence information from them. Today, more and more military aircraft are being equipped with CVRs and FDRs, which can provide invaluable information in the event of a crash or other accident.
The United States Supreme Court has ruled that the Safety Mishap Board Report and confidential statements obtained in its making do not have to be disclosed to the injured victim or his or her survivors, or any other pubic person or entity. One reason given for this policy is that the investigation team often includes or is assisted by members of the manufacturer of the aircraft or the supplier of a defective component that may have failed. The thinking is that if the manufacturer, supplier, or other government contractor were not guaranteed the confidentiality of its findings, they would not be forthcoming about possible causes of the accident due to their fault, stalling the investigation and putting other lives in peril (that is, the pilots of other aircraft of the same type and make that may have the same defect).
The military releases an “Accident Report,” which is used for court martial and other punitive or administrative proceedings against servicemembers resulting from the accident. The Accident Report may consist of the purely factual components of the safety mishap investigation, but does not include the most important technical analysis performed by the safety mishap investigative team, especially if it involves a government contractor.
Lawsuits against the United States government arising out of a military aircraft crash or other mishap must be brought under the Federal Tort Claims Act (FTCA). Usually a government cannot be sued and held liable for injuries and damages its agencies and employees cause. This is known as “governmental immunity.” However, the FTCA provides that the United States government may be held liable for 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 laws of the place where the act or omission occurred.” The FTCA also provides that you cannot recover prejudgment interest or punitive damages from the government.
However, although the federal government allows people to sue it for their injuries or the wrongful deaths of their loved ones, there are a number of exceptions to this rule that may protect the United States from liability. One such exception is the “discretionary function” immunity, which provides that the government cannot be held liable for any claim based upon the exercise or performance, of the failure to exercise or perform, a discretionary function or duty on the part of a federal agency or an employee of the United States government, regardless of whether the discretion involved is abused.
Conduct cannot be discretionary unless it involves an element of judgment or choice. If there is a federal statute, regulation, or policy that specifically prescribes a course of action for an employee to follow, then the discretionary rule does not apply. The discretionary function exception applies only to conduct that involves the permissible exercise of policy judgment. The discretionary function exception marks the boundary between Congress’ willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.
Many military aircraft are deployed throughout the world. Two exceptions to the FTCA’s imposition of liability against the federal government are especially worth noting here. First, the FTCA specifically prohibits claims against the federal government for injuries or deaths arising out of the “combatant activities” of the military or naval forces, or of the Coast Guard, during times of war. Second, the FTCA forbids claims against the United States arising in a foreign country.
Although the designer and manufacturer of a product generally has a duty to design their product so that it does not pose an unreasonable risk of harm to users of its products and others who might be foreseeably injured by the product, manufacturers of military aircraft can escape liability for design defects under the so-called “government contractor defense.” Under the government contractor defense doctrine, a manufacturer or subcontractor is not liable for injuries or deaths resulting from a defective and dangerous design of the aircraft or any part of it where the United States government approved reasonably precise specifications for the plane’s design, the equipment conformed to those specifications, or the manufacturer or supplier warned the government about the dangers in the use of the equipment which were known to the manufacturer or supplier, but not to the government.
If you have been injured or a loved one killed in an accident involving a military aircraft, whether it be a fighter jet on training maneuvers or a transport helicopter, you should contact an experienced personal injury law firm as soon as possible. It is also important to promptly contact an experienced personal injury law firm, 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 there is a change in the condition of the area or vehicle.
The attorney or his or her investigator will also want to talk to any witnesses to the accident as soon as possible while the facts are still fresh in their minds. Further, before filing a lawsuit in court against the United States government under the Federal Tort Claims Act, it is necessary to submit a claim to the appropriate government agency within a set time period. An experienced personal injury law firm knows how and where to file such a claim and will do so on your behalf.
An experienced personal injury law firm can also help with seeing to it that you obtain appropriate and thorough medical care for your physical, emotional, and psychological injuries suffered as a result of the accident. The attorneys in the firm can also do everything possible to ensure that you obtain full compensation for your medical expenses, pain and suffering, mental anguish, property damage, lost wages, and all of your other injuries and damages.
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