Negligent conduct can arise either from an act or a
failure to act. It can be either acting in a careless manner
or failing to do those things that a reasonable person
would do in the same situation.
Whether certain conduct was negligenceand,
therefore, whether the government is liablewill be
determined by the tort law of the place where the
Questions, such as whether the
violation of a local law, by itself, constitutes negligence,
are answered by applying the doctrines
Example 1: Seaman Jones, while
duties in Virginia, injures Mr. Smith.
law, Jones conduct is not negligence.
Smiths FTCA claim will be denied.
Example 2: Seaman Door, while
of the local tort
duties in North Carolina, engages in exactly the same
conduct that injured Mr. Smith in the previous example.
Door injures Mr. Johnson in this example. Under North
Carolina law, Doors acts constitute negligence.
Therefore, Mr. Johnsons FTCA claim will be paid.
Limited Range of Intentional Torts
The FTCA will compensate for intentional
wrongful acts under very limited circumstances. On or
after 16 March 1974, the FTCA applies to any claim
arising out of the following intentional torts committed
by federal law enforcement officers: assault, battery,
false imprisonment, false arrest, abuse of process, and
A federal law enforcement
officer, for purposes of the FTCA, is any officer of the
United States empowered bylaw to execute searches, to
seize evidence, or to make arrests for violations of
Since Article 7, UCMJ, extends the authority to
apprehend to commissioned officers and petty officers,
these officers would be considered law enforcement
officers for FTCA purposes when they are actually
engaged in law enforcement duties.
intentional tort claims are payable under the FTCA.
Under very limited circumstances, however, the
government may be liable for an intentional tort
committed by a federal employee overseas under the
FCA discussed later in this chapter. Federal employees
have been held individually liable to the injured party
for intentional torts committed while the employees are
acting beyond the proper limits of their authority.
Under the FTCA, the government is liable only for
the wrongful acts of its employees. The term
government employee is defined to include the
Officers or employees of any federal agency
Members of the military or naval forces of the
Persons acting on behalf of a federal agency in
an official capacity, either temporarily or
permanently, and either with or without
The term federal agency includes not only the
departments and agencies of the executive, legislative,
and judicial branches of the federal government, but also
independent entities that function primarily as federal
agencies such as the U.S. Postal Service and the
Commodity Credit Corporation.
GOVERNMENT CONTRACIOR. A govern-
ment contractor and its employees are not usually
considered government employees under the FTCA.
When, however, the government exercises a high degree
of control over the details of the contractors activities,
the courts will find that the government contractor is, in
fact, a government employee. The standard personnel
qualifications and safety standards provisions in
government contracts are not enough to turn a
government contractor into an employee. Where the
contract requires the contractor to follow extensive,
detailed instructions in performing the work though, the
contractor will usually be considered a government
employee and the contractors employees who work on
the federal job will likewise be treated as government
employees for FTCA purposes.
NONAPPROPRIATED FUND ACTIVITIES.
A nonappropriated fund activity is one that, while
operating as part of a military installation, does not
depend upon, and is not supported by, funds
appropriated by Congress.
nonappropriated fund activities include the Navy
exchange and officers clubs. Whether liability is
incurred depends upon a two-pronged test. The FTCA
applies to a nonappropriated fund activity if (1) the
activity is charged with an essential function of the
federal government and (2) the degree of control and
supervision by the federal government is more than
casual or perfunctory.