An Introduction to Government Contractor
Immunity under the Federal Tort Claims Act
policies for your organization, or
representing a client in a lawsuit,
you would be wise to consider the
implications of federal tort immunity.
Historically, citizens have not
been able to sue their state. This
historical principle is commonly known
as sovereign immunity, sometimes
expressed as "the king can do no wrong."
In the United States, this is still true.
In 1946, Congress enacted the Federal
Tort Claims Act ("FTCA"), acting as a
limited waiver of sovereign immunity.
The FTCA allows private parties to bring
lawsuits for state-law torts committed by
persons who are acting on behalf of the
United States, subject to the exceptions
enumerated in 28 U.S.C. § 2680. See
also 28 U.S.C. § 2674. Federal courts
have jurisdiction over such claims, but
apply the law of the state "where the
act or omission occurred." 28 U.S.C.
FTCA, a plaintiff must exhaust the
applicable administrative remedies prior
to filing suit. See 28 U.S.C. § 2675(a).
If you believe you may have a tort
claim against a federal agency, employee
or government contractor, you must first
determine whether your suit is permitted
under the FTCA. Unless your claim is
allowed by the FTCA, there is a good
chance that it will be barred by sovereign
immunity. Often, tort claims against
federal agencies and employees are
defended by an attorney from the U.S.
Department of Justice. More complex
is the situation where government
functions are being handled by a private
contractor.
If you are defending a suit in which
your client is a government contractor,
the FTCA is one of the first places you
should look to prepare your defense.
This defense preempts state law and
immunizes government contractors from
tort claims. The rationale for so-called
is based upon two basic principles: (1)
state tort law is preempted by federal
common law in areas of unique federal
interests, and (2) the procurement of
equipment by the United States is such
an area. In re Katrina Canal Breaches
Litig., 620 F.3d 455 (5th Cir. 2010). This
is rooted in one of the exceptions found
in the FTCA, the so-called "discretionary
function" exception found at 28 U.S.C. §
2680 (a).
The classic example implicating
government-contractor immunity
arises when a defendant is producing
a product or structure pursuant to a
government contract and pursuant to
plans/specifications provided by the
government and is sued in tort. The
seminal case on this issue is Boyle v.
United Technologies Corp., 487 U.S. 500
(1988).
In
Nahrstadt & Pontikis Ltd. and a member of the firm's tort
defense, product liability and commercial litigation practice
groups. He focuses his practice on construction, business,
commercial, product liability, employment discrimination and
premises liability litigation in state and federal courts and
before state administrative bodies.
& Pontikis Ltd. who concentrates her practice in the defense
of construction litigation, complex products liability, mass tort,
professional liability and commercial automobile matters.
230 West Monroe Street
Suite 2260
Chicago, Illinois 60606
Fax: 312.726.2273
rak@lipelyons.com
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