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Federal Tort Claims Act

Do you know what happens if you are driving around Lynn, Lynnfield, Peabody, or  other North Shore community in Massachusetts and are injured by a federal government employee or vehicle owned by the federal government?  What if you are in a federal government building in Massachusetts and are injured?  If you are injured by the negligence of an employee of the federal government in Massachusetts, you or your attorney will need to determine whether or not your claim is subject to the Federal Tort Claims Act (“FTCA”).  If so, compliance with FTCA and attention to detail are musts, otherwise you could jeopardize your right to recovery.

commerce-acts-books-477966-mWhat is the FTCA?  While the statutory construction of the FTCA is somewhat complicated for a lay person, the purpose is pretty straightforward – to provide a limited window of recovery against the United States for the wrongdoing of one of its employees.  It starts with the concept of “sovereign immunity”.  This common law doctrine essentially shielded government officials and employees from personal liability in tort for carrying out governmental duties.  So, although private employers could be held liable for the wrongs of their employees, the federal government could not be held liable for the wrongs of its employees.  In 1946, the FTCA was enacted to provide a limited waiver of the federal government’s sovereign immunity when its employees are negligent within the scope of their employment.  28 U.S.C. 2671-2680.  Under the FTCA, the government can be sued ‘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.’ 28 U.S.C. S 1346(b).  The FTCA includes a number of exceptions to its application, so it must be determined whether or not your claim falls within the FTCA’s window of allowable claims.

What is Presentment under the FTCA?  Before an action under the FTCA can be filed with a court, the claimant must make proper “Presentment”.   Presentment is written notice to the appropriate government agency. 28 U.S.C. § 2675(a).   Typically this is done by government’s Standard Form 95 (“SF-95”) linked here https://www.justice.gov/sites/default/files/civil/legacy/2011/11/01/SF-95.pdf  although the form is not required if another writing contains the required elements of notice to the agency. The written claim must provide the agency sufficient notice so that it can conduct a proper investigation to determine liability, conduct settlement negotiations and assign value to the claim.  State Farm v. United States, 2004 WL 1638175 (E.D.N.Y.); McNeil v. United States, 508 U.S. 106, 112 (1993).   Presentment must be made within two years after the claim arises and suit must be filed within six months after a claim is made or denied, whichever is first.

Written notice must be accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the incident; and the title or legal capacity of the person signing, and is accompanied by evidence of his authority to present a claim on behalf of the claimant as agent, executor, administrator, parent, guardian, or other representative. 28 C.F.R. 14.2(a)-(b).  Failure to comply with any one requirement will likely lead to the dismissal of an action for relief.  Recently the United States District Court (Massachusetts) dismissed a Complaint for relief under the FTCA because the Presentment did not include the amount of damages sought in a sum certain.  Holloway v. United States, Civil No. 15-30016 (March 17, 2016).  In that case, written notice was given within two years after the injury, but the written notice did not include a sum certain.  The attorney for the claimant supplemented the written notice with a sum certain, but the supplement was made after two years had passed.  Suit was filed in the federal court in Massachusetts.  The Court dismissed the action, leaving the injured party with no remedy.  It is important that you or an attorney on your behalf is aware of the FTCA requirements, or you could be forever barred from getting relief for your injuries.

The FTCA is complicated and full of traps for the unwary.  If your circumstances fit within the framework of the FTCA and you or your attorney are familiar with its requirements and limitations, it can provide you with compensation for pain and suffering caused by the negligence of a government worker.