Federal Tort Claims Act - Case Study Example

Federal Tort Claims Act Federal Tort Claims Act Time and again, the purpose of law has been emphasized to lay theexplicit foundations for order and security in society. Specific functions of law encompass peacekeeping, checking government power and promoting personal freedom; facilitating planning and the realization of reasonable expectations; promoting economic growth through free competition; promoting social justice; and protecting the environment (Mallor, Barnes, Bowers, and Langvardt, 2007). The role that every government takes in enforcing laws and regulations are critical to ensure peace and order and that the rights of every citizen are upheld. The US Department of Health and Services published in its Risk Management Manual a discourse on the Federal Tort Claims Act of 1946. According to the article, before 1946, there were no clearly defined laws which could hold the federal government liable for wrongdoings due to the “doctrine of sovereign immunity” (USDHHS, 2008, par. 1). The Federal Tort Claims Act of 1946 revoked the immunity by allowing persons to sue the government for the following acts, to wit: “money damages,…for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, 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.A. § 1346(b))” (Federal Tort Claims Act, 2010, par. 2). In this regard, the objective of this essay is to proffer the pertinent perspectives and issues of the Federal Tort Claims Act (FTCA) and to discuss its applicability to local justice and security agencies. The discourse would briefly touch on New Jersey’s Tort Claims Act for a discussion of the practical application to local justice. FTCA Stipulations To clearly enforce the FTCA, there are stipulated coverage, scope, remedy, limitations and payment allowed for implementation. The US DHHS proffered that the FTCA coverage indicate “the negligent acts or omissions committed by federal employees acting within the scope of their official duties are covered under the FTCA” (USDHHS, 2008, par. 3). Likewise, the scope of the FTCA includes “official duties … performed in the course of one’s job, or some authorized activity reasonably associated with it. Whether the employee was acting within the scope of his/her employment is determined under the law of the State where the care was provided. The factors to be considered are: (1) whether the employee was doing the kind of work he/she was employed to do (as set forth in the position description or billet); (2) whether the work occurred at the expected time or place; and (3) whether the work was undertaken to serve” (USDHHS, 2008, par. 7) the agency or state office governing one’s service. As noted, the local justice and public security personnel fall under the abovementioned category and are therefore subject to the conditions of the FTCA. Any wrongdoing that ensued while on official duty would render them liable to answer within the jurisdiction of the FTCA. Any injured party who plans to file a case against an employee (justice or public security personnel) is advised to initially file an “administrative federal tort claim with the Office of the General Counsel, HHS. A further provision is that Congress made the law in the local jurisdiction the decisive factor in determining liability; therefore, a plaintiff may recover for a particular action in one state but not in another” (USDHHS, 2008, par. 8). Furthermore, there are well defined exceptions to the FTCA, to wit: “enforcing unconstitutional statutes, losing letters in the post office, actions of the military in time of war, damages caused by the fiscal operations of the TREASURY DEPARTMENT or regulation of the monetary system, collecting custom duties, claims arising in a foreign country, and most intentional torts (28 U.S.C.A. § 2680)” (FTCA, n.d., par. 7). The following exception concerning intentional torts is relevant for law enforcement officers: “federal law enforcement officers could be sued personally for violation of a persons constitutional rights. The FTCA was subsequently amended to make actionable conduct "of investigative or law enforcement officers of the United States Government" involving assault, battery, false imprisonment, false arrest, ABUSE OF PROCESS, or MALICIOUS PROSECUTION. This inclusion does not repeal the personal liability of the officers themselves, but it does make it more likely that a plaintiff will seek to sue the government, because the government has more money than its employees. The government is also liable for torts such as TRESPASS and invasion of privacy” (FTCA, n.d., par.12). These are relevant provisions given the delicate nature of responsibilities undertaken and expected of law enforcement officers. Although they could be suit in their own personal capacity for wrongdoings and for violating some constitutional rights of citizens, the FTCA widened the scope of their liability to include the federal government or local state, as their employer – especially when deemed violations were performed during their official time and designated place. In cases of trespassing or invasion of privacy, for example, could be justified by law enforcement officers when undertaken to determine the veracity of suspicious activities that might be preempted to prevent the possibility of criminal behavior. They can always contest that these intentional torts need to be done for the protection of a greater number of civilians who could be endangered by activities being investigated. New Jersey Tort Claims Act For the state of New Jersey, the legal office deemed authorized to hear cases pertinent to torts claims is the Law Office of Bailey & Orozco (Bailey & Orozco, 2010). According to the official website, “under N.J.S.A. §59:4-2, a plaintiff is required to prove that public property owned and operated by the government is in a dangerous condition. That dangerous condition, when used by a foreseeable person in a reasonable manner, must be the cause of the plaintiff’s injuries. Finally, the plaintiff must provide objective medical proof that they have sustained the permanent loss of a bodily function as a result of the injury. Specifically, you must have the permanency just described as well as medical expenses in excess of $3,600.00” (Bailey & Orozco, 2010, par. 1). All the major provisions and stipulations presented under the FTCA likewise apply. The initial Notice of Claim must be filed in the proper venues within 90 days, the administrative review period prescribed, after any violation or injury has been sustained by the plaintiff in order to qualify for a lawsuit. Likewise, a six month period is allotted for the government agency to make the necessary review upon receipt of the claim notice. Other Provisions The FTCA stipulate other provisions regarding expiration of the filing for claims which must be within two years of the incident; otherwise, the claimant waives the right to obtain recourse for the injuries or wrongdoings sustained. Another relevant provision applies to payment for FTCA cases and summed as follows: “Tort claims, suit settlements, or court judgments against the Federal Government are paid by the US Treasury, except those for $2,500 or less which are “paid by the head of the federal agency concerned out of appropriations available to that agency” (USDHHS, 2008, par. 9). Applicability to Local Justice and Security Agencies As indicated both in the FTCA and from the New Jersey Tort Claims Act, local justice, public security personnel, as well as public employees of state agencies could be sued by persons when actions under official capacity causes injuries from utter disregard of the rights of others. It is clearly indicated that “there is a public employee immunity exception found in N.J.S.A. 59:3-14. Subsection (a) states: “[N]othing in this act shall exonerate a public employee from liability if it is established that his conduct was outside the scope of his employment, or constituted a crime, actual fraud, actual malice or willful misconduct.” See also, Burke v. Deiner, supra, at 472-473” (Bailey & Orozco, 2010, par. 5). Otherwise, these public personnel, including local justice and security officers would have to address legal cases that ensue from negligent behavior, with their local agencies standing as their employer – and running the risk of being liable co-terminus. The actions of the local justice personnel and law enforcement officers must always be undertaken with utter vigilance and regard for the constitutional rights of the citizens. Pursuing a fleeing criminal, for example, must be done under the premise of diligent and lawful action with proper regard for the safety of spectators and civilians, who might be on the way of the pursuit. With proper training and knowledge of rules and regulations, especially of provisions of the tort claims act, justice and security personnel would be more aware of their limitations and acknowledge the need for justifiable actions within their jurisdiction. Conclusion Laws encourage peace by providing the set of rules and regulations with which people and business are equitably governed. Laws are specifically detailed in a country’s legal system enabling the general population access to monitor government power and exercise human rights and freedom. With the statutory provisions indicated under the Federal Tort Claims Act, all public employees, including justice and security personnel, are enjoined to apply diligence and just behavior with fair and equitable regard for the constitutional rights of others. References Bailey & Orozco, LLC. (2010). New Jersey Tort Claims Act. Retrieved 09 September 2010. < http://www.bolegal.com/CM/Articles/New-Jersey-Tort-Claims-Act.asp> Federal Tort Claims Act (FTCA) – Further Readings. Retrieved 09 September 2010. Mallor, J., Barnes, A., Bowers, T., Langvardt, A. (2007). Business Law: The Ethical, Global and E-Commerce Environment. 12th ed. Burr Ridge: Irwin/McGraw-Hill. US Department of Health and Human Services (DHHS). (2008). Risk Management. Retrieved 09 September 2010. < http://www.ihs.gov/RiskManagement/index.cfm?module=part10> Read More