FTCA Suit of the Day: Feres and Football

FTCA Suit of the Day: Feres and Football


Since the Salt Lake City Airport is providing me with free Wifi while I wait for the final leg of my trip home, I thought I would use the down time to start a new series: FTCA Suit of the Day. Now, I definitely won’t commit to doing this daily, but I will do some short posts on an interesting FTCA court case that has come up somewhere in my reading. Some are ones that make you think, well, that’s stupid, no one should get to sue the government over that; others might make you unhappy that a certain case was thrown out.

The inaugural post comes form a lovely book monograph (collection of typewritten pages?) document called the Federal Tort Claims Act Litigation Seminar. Apparently in 1989, the DOJ held a conference or seminar of some sort for US Attorneys defending FTCA actions. And somehow our library had a copy, which is neat. It’s actually a good look inside strategy from the DOJ’s perspective of handling these actions. Nothing in it says “classified”, so I’m going to talk about it!

And here’s the case I chose:


No. 87-6291


856 F.2d 194; 1988 U.S. App. LEXIS 11148

August 15, 1988, Filed

{This case was also apparently not suggested to be printed in the reporter, but its in Lexis anyways}

OVERVIEW: While enlisted in the Army, plaintiff injured his knee in a football game between two military units. The drill sergeant, who was plaintiff’s commanding officer, organized the game as part of the unit’s basic training program. Plaintiff alleged that the sergeant’s negligent supervision of the game caused the injury. He alleged medical malpractice on the part of the military physicians. The district court granted summary judgment to defendants. In affirming, the court held that the FTCA barred a suit by a service-member for claims arising out of an activity incident to services. In the instant case, plaintiff was injured on a military base when he was an active duty serviceman. The game was organized by his commanding officer as part of the unit’s basic training program. The evidence also indicated that plaintiff was required to participate in the game. Further, plaintiff’s injury was treated at a military hospital by Army medical personnel. The court declined to determine the appropriateness of the sergeant’s decision to include football as part of plaintiff’s basic training program and would not impermissibly implicate the civil judiciary into the military decision-making process.

So, the claim was Feres banned. I guess I haven’t blogged about Feres yet, but the short story is military personnel can’t use the FTCA for things that happened incident to their service.

This case is interesting because a football game hardly seems incident to one’s service, but the FTCA almost always gets construed in the government’s favor.

Picture from defense.gov


Posted on December 23, 2012, in Uncategorized and tagged , , , , , . Bookmark the permalink. 2 Comments.

  1. Danny– Nice idea, and interesting first post. (Notice the first sentence of the second-last paragraph is unfinished.) I’m confused about one thing. You say the District Court granted summary judgment to the defendants; but the case title material you display labels the military folks as “Defendants-Appellees”.


  2. Thanks! I fixed the question mark in that sentence–I was just trying to show that I don’t really know how to classify that one document from the FTCA seminar. As far as the defendant-appellees designation goes, the appellant brings the appeal and the appellee (also sometimes called respondent) is who has to respond to the appeal. (I had to google that, but I think its right)

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