What’s the Big Deal with Torts?

What’s the Big Deal with Torts?

 

So, what’s the big deals with torts? What is a “tort” anyways, and why should I spend any time reading or writing about it?

Let’s start here (from Nolo Plan English Law Dictionary):

“An injury to one person for which the person who caused the injury is legally responsible. A tort can be intentional — for example, an angry punch in the nose — but is far more likely to result from carelessness (called “negligence”), such as riding your bicycle on the sidewalk and colliding with a pedestrian. While the injury that forms the basis of a tort is usually physical, this is not a requirement — libel, slander, and the “intentional infliction of mental distress” are on a good-sized list of torts not based on a physical injury. A tort is a civil wrong, as opposed to a criminal wrong. ”

Ok, how about the FTCA? What kind of torts does that deals with?

The FTCA provides for

(a) the payment of money damages, for

(b) injury or loss of either real or personal property or for personal injury or death,

(c) caused by a wrongful or negligent act or omission,

(d) of an employee of the United States,

(e) acting within the scope of employment,

(f) where the United States, if a private person, would be liable,

(g) according to the law of the place where the act or omission occurred.

So all of those are necessary conditions for a successful FTCA claim.

Let’s look at some interesting examples of successful FTCA cases.

Here’s Reilly v United States 863 F.2d 149 (1988):

“A. What Transpired. On December 11, 1984, Peter Reilly was on active duty with the Navy. On that date, a gravid Donna Reilly was admitted to Newport Naval Hospital. After some six hours in labor, the electronic monitor indicated a dramatic deceleration in fetal heart rate. The district court found, supportably, that this development should have signalled the obstetrician to perform a caesarean section immediately because the baby was in danger of asphyxiation. The physician instead removed the monitor and insisted on undertaking a vaginal delivery, thereby delaying the birth. When the delivery was eventually performed, it required the application of a vacuum/suction instrument to the baby’s head. The departure from prudent professional standards was palpable.

As a result of the doctor’s manifest negligence, Heather Reilly was born with severe, apparently irremediable, brain damage. The district court determined, sadly but accurately, that she was left “a helpless individual, ‘significantly delayed developmentally’ and unable to see; she will never be able to walk, talk, feed or take care of herself in any way.”

B. Travel of the Case. Heather’s parents filed an administrative claim with the Navy on May 7, 1985 in the amount of $ 10,000,000. When the matter was not definitively resolved within six months next following, suit was brought under the FTCA.”

Another one is Murphy v. United States, 833 F. Supp. 1199 (E.D. Va. 1993):

“On August 17, 1990, Diane V. Murphy was severely injured when the automobile she was driving collided with a Navy vehicle. Because the United States has admitted liability for the aforementioned accident under the Federal Tort Claims Act (FTCA), the sole task of this Court is to determine the appropriate damage award to which the Plaintiff is entitled. Immediately after the collision, Mrs. Murphy was taken to Virginia Beach General Hospital (VBGH) and treated in the emergency room for a concussion, loss of consciousness, left-side jaw fracture, a fracture of the right knee, and numerous lacerations, hematomas, and muscular sprains and strains. She was thereafter admitted to the intensive care unit at VBGH.”

Another one is Phillips v. United States, 801 F. Supp. 337 (D. Idaho1992):

“Appellee truck driver was injured and permanently disabled when his semi-truck with a heavy load rolled down an embankment after sinking into a soft spot in a road reconstructed and maintained by appellant, the United States, through its Forest Service. Applying local law as required by 28 U.S.C.S. § 2674 of the Federal Tort Claims Act (FTCA), the court held that appellant, as an Idaho landowner, owed appellee a duty to maintain its road in a reasonably save condition and to warn of hidden or concealed dangers which it knew or should have known of by exercise of reasonable care. The record, however, indicated that appellant exercised almost no care. The court held that the discretionary function exception under 28 U.S.C.S. § 2680(a) of the FTCA did not apply as the decision not to inspect the road was not grounded in social, economic, or political policy concerns. The independent contractor exception did not apply because appellant was independently negligent under Idaho law for it failure to discover and either abate or warn of the danger. The court held that the non-economic damages award was not excessive under Idaho law.”

IMPORTANT!!!

What is not a FTCA cause? Something that stems directly from a contract!! Also, you can only sue for money! No injunctions or declaratory relief!

This case nicely illustrates FTCA v Tucker Act: (Woodbury vs. United States 313 F.2d 291; 1963 U.S. App. LEXIS 6308)

“A contractor sought financing for a housing project under § 203 of the National Housing Act, 12 U.S.C.S. § 1709 (Act). The contractor brought a claim against the government under the Federal Tort Claims Act (FTCA), 28 U.S.C.S. §§ 1346(b) and 2671-2680, alleging that the government breached its fiduciary duty to provide financing under the Act. The court dismissed the contractor’s claim for lack of jurisdiction, holding that the government breached its fiduciary duty but that the breach was not a common-law type tort that was within the province of the FTCA. The contractor appealed that ruling, contending that breach of fiduciary duty was a tort within the FTCA’s coverage, even though the duty was created by contract. The court affirmed the lower court’s judgment, concluding that the contractor had no claim under the Act, regardless of the FTCA’s scope. The contractor’s claim was essentially one for breach of contract, and the liability of the government depended upon its alleged promise. As such, the action had to be brought under the Tucker Act, 28 U.S.C.S. § 1491. Otherwise, the distinction preserved between contract and tort actions by the FTCA and the Tucker Act was destroyed.”

Advertisements

Posted on February 29, 2012, in Uncategorized and tagged , , , , , , , . Bookmark the permalink. Leave a comment.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: