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Claims  Cognizable  Under  Other  Claims Statutes
Every facet of the activity’s operations must be examined.  IS the  activity  entirely  self-supporting?  Does it  own  its  own  property?  Does  it  use  government properly, equipment, or personnel in its operation’? What control does the command have over the activity’s operation?  Dots  the  activity  provide  essential  services or benefits to military personnel? Applying the two-pronged test and considering the specific  points  mentioned  previously,  the  Navy exchange  would  clearly  be  a  nonappropriated  fund activity subject to the FTCA. On the other hand, an equestrian club, sponsored by a command but operating entirely independent of the command, would not be subject to the FTCA. Each case must be determined on its own merits. Many  nonappropriated  fund  activities  carry commercial liability insurance to protect them against claims  for  property  damage  and  personal  injury attributable  to  their  operations.  Therefore,  many  FTCA claims  against  nonappropriated  fund  activities  are handled  by  commercial  insurance  carriers.  The procedures for negotiating and settling FTCA claims against  nonappropriated  fund  activities  covered  by liability insurance are set forth in JAGINST 5890. 1. Scope  of  Employment The government is liable under the FTCA for its employees’  conduct  only  when  the  employees  are  acting within   the   scope   of   their   employment. The scope-of-employment  requirement  is  viewed  by  the courts as “the very heart and substance” of the act. While scope-of-employment rules vary from state to state, the issue usually turns to ( 1 ) the degree of control the  government  exercises  over  the  employee’s  activities on the job and (2) the degree to which the government’s interest were being served by the employee at the time of the incident. Whether or not a government employee’s acts were within  the  scope  of  employment  is  determined  by  the law of the state, including the principles of  respondeat superior,  where  the  incident  occurred.  This  has  led  to many different results on the question of applicability of the FTCA involving PCS and TDY. Example:  Consider  the  following  hypothetical situation. Seaman Doe, the command duty driver, is making an authorized run in the command vehicle. On the way back to the base, he stops at a local bar and drinks  himself  into  a  stupor.  Barely  able  to  stand,  he gets back in the command vehicle and continues toward the base. In his drunken state, he fails to see a stop sign and crashes into an automobile driven by a civilian. Both Seaman Doe and the civilian are seriously injured. For the purposes of the FTCA, Seaman Doe could be considered, in at least some jurisdictions, to have been acting within the scope of his employment (he was completing an authorized run when he was involved in the accident). Accordingly, the claim of the civilian would be cognizable under the FTCA. Example: Seaman Doe, the command duty driver, is making an authorized run in the command sedan. While daydreaming, he becomes inattentive, fails to keep a lookout for pedestrians, and hits Mr. Hatch. Seaman  Dot’s  negligence  occurred  within  the  scope  of his  employment. Example: Seaman Doe, the command duty driver, takes  the  command  sedan  after  hours  on  an  unauthorized trip to the ball game. After the game, he and some buddies stop at several taverns and all become drunk. Because of his drunken condition, while driving back to the base, Seaman Doe runs over Mr. Smith. In this case, Seaman Doe’s negligence occurred outside the scope of his  employment.  He  and  his  friends  were  off  on  their own and their activities were entirely unrelated to the performance of a governmental or military function. Therefore, Mr. Smith will not be able to recover under the  FTCA.  Since  a  government  vehicle  is  involved, however,   Mr.   Smith   may   be   entitled   to   limited compensation under the nonscope claims procedures discussed  later. Territorial Limitations The FTCA applies only to claims arising in the United States, or in its territories or possessions (where a U.S. district court has jurisdiction). Any lawsuit under the FTCA must be brought in the U.S. district court in the district where the claimant resides or where the incident giving rise to the claim occurred. EXCLUSIONS FROM LIABILITY Statutes  and  case  law  have  established  three  general categories  of  exclusions  from  FTCA  liability.  The following   specific   exclusions   are   encountered frequently in claims practice in the military. A complete list of FTCA exclusions is set forth in JAGINST 5890. 1. In each of the following situations, the government will not be liable under the FTCA, although it maybe liable under  some  other  claims  statute. The   following categories  are  exempted  governmental  activities: 12-3

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