FEDERAL TORTS CLAIM ACT – What You Need To Know Now
Written by Joel S. Rosen, Esquire
Joel S. Rosen is a partner with the law firm of Cohen, Placitella & Roth PC and is widely regarded for his litigation skill and experience. He specializes in product liability cases, representing individuals who are catastrophically injured as a result of defective and faulty products.
When an individual is injured due to the negligence of any employee of the United States who is acting in their role as a government employee at the time the negligence occurs, then there can be a viable cause of action on behalf of the injured person. That lawsuit is brought not against the individual employee, but against the United States government under the Federal Tort Claims Act. Whether the defendant works at a federally owned and managed hospital, is a postal employee, or works at a number of other federal agencies, these are all claims that may be filed under the Federal Tort Claims Act. In these cases it is imperative that all of the requirements of the statute are followed to the letter. If not, you may lose your claim due to a procedural misstep.
The FTCA, 28 U.S.C. Sec. 1346(b), makes the United States liable for certain injuries if a private person would be liable in accordance with the law of the place where the injury occurred. It specifically states that the United States is liable for injury, loss of property, personal injury or death caused by the negligent act or omission of any employee of the government who is acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable. There are limits to what kind of cases can be brought under the FTCA that are specified in Section 2680 of the statute. Damages under the FTCA are not limited, but instead the claimant may recover any damages allowed under the laws of the place where the injury occurred. Punitive damages are not allowed under the statute.
In order to bring a claim under the FTCA, the injured person must first present their claim to the appropriate federal agency. This administrative claim must be filed within two years of the incident that gave rise to the claim. Each agency has its own regulations governing the filing of these claims. However, there is a standard claim form 95 that is adequate for properly filing these claims. By filling out this form and carefully answering all the questions contained in it, an injured party will be meeting the notice requirements of the FTCA. It is still extremely important to fill out the form correctly, include all the required information and attachments and then send it to the appropriate person at the appropriate agency. Remember that untimely service, improper service, or a failure to include the required information can lead to the claim ultimately being thrown out of court. It is equally important that a sufficient amount of damages are detailed when the administrative claim is filed. A later action filed in court may not be made for an amount in excess of the claim presented to the federal agency unless the increase is based upon some newly discovered evidence or proof of intervening facts relating to the amount of the claim.
In other words, you will likely be limited in your lawsuit to the amount of the initial administrative claim that you made.
Once the administrative claim is filed, the injured party must wait to file suit until either the agency rejects the claim or until six months pass without a rejection. The suit itself is filed in the U.S. District Court where the plaintiff resides or where the negligent act occurred. The appropriate defendant is the United States of America and not the specific agency or employee of that agency. There is no right to a jury trial in an FTCA claim. The case will be assigned to and heard by a federal Judge sitting in the relevant district.
The good news here is that an injured party can obtain compensation for their injuries when a U.S. government employee is at fault in many instances. The only bad news is that there are a lot of traps waiting out there for the inexperienced litigator. The FTCA is an animal unto itself, and its rules must be strictly followed in order to maximize your chance for a successful outcome.
/ For additional information please contact attorney Joel S. Rosen at 1.888.375.7600 or visit our website at cprlaw.com.
Joel S. Rosen is a partner with the law firm of Cohen, Placitella & Roth PC and is widely regarded for his litigation skill and experience. He specializes in product liability cases, representing individuals who are catastrophically injured as a result of defective and faulty products.
When an individual is injured due to the negligence of any employee of the United States who is acting in their role as a government employee at the time the negligence occurs, then there can be a viable cause of action on behalf of the injured person. That lawsuit is brought not against the individual employee, but against the United States government under the Federal Tort Claims Act. Whether the defendant works at a federally owned and managed hospital, is a postal employee, or works at a number of other federal agencies, these are all claims that may be filed under the Federal Tort Claims Act. In these cases it is imperative that all of the requirements of the statute are followed to the letter. If not, you may lose your claim due to a procedural misstep.
The FTCA, 28 U.S.C. Sec. 1346(b), makes the United States liable for certain injuries if a private person would be liable in accordance with the law of the place where the injury occurred. It specifically states that the United States is liable for injury, loss of property, personal injury or death caused by the negligent act or omission of any employee of the government who is acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable. There are limits to what kind of cases can be brought under the FTCA that are specified in Section 2680 of the statute. Damages under the FTCA are not limited, but instead the claimant may recover any damages allowed under the laws of the place where the injury occurred. Punitive damages are not allowed under the statute.
In order to bring a claim under the FTCA, the injured person must first present their claim to the appropriate federal agency. This administrative claim must be filed within two years of the incident that gave rise to the claim. Each agency has its own regulations governing the filing of these claims. However, there is a standard claim form 95 that is adequate for properly filing these claims. By filling out this form and carefully answering all the questions contained in it, an injured party will be meeting the notice requirements of the FTCA. It is still extremely important to fill out the form correctly, include all the required information and attachments and then send it to the appropriate person at the appropriate agency. Remember that untimely service, improper service, or a failure to include the required information can lead to the claim ultimately being thrown out of court. It is equally important that a sufficient amount of damages are detailed when the administrative claim is filed. A later action filed in court may not be made for an amount in excess of the claim presented to the federal agency unless the increase is based upon some newly discovered evidence or proof of intervening facts relating to the amount of the claim.
In other words, you will likely be limited in your lawsuit to the amount of the initial administrative claim that you made.
Once the administrative claim is filed, the injured party must wait to file suit until either the agency rejects the claim or until six months pass without a rejection. The suit itself is filed in the U.S. District Court where the plaintiff resides or where the negligent act occurred. The appropriate defendant is the United States of America and not the specific agency or employee of that agency. There is no right to a jury trial in an FTCA claim. The case will be assigned to and heard by a federal Judge sitting in the relevant district.
The good news here is that an injured party can obtain compensation for their injuries when a U.S. government employee is at fault in many instances. The only bad news is that there are a lot of traps waiting out there for the inexperienced litigator. The FTCA is an animal unto itself, and its rules must be strictly followed in order to maximize your chance for a successful outcome.
/ For additional information please contact attorney Joel S. Rosen at 1.888.375.7600 or visit our website at cprlaw.com.