Every facet of the activitys 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 activitys
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.
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 employees activities
on the job and (2) the degree to which the governments
interest were being served by the employee at the time
of the incident.
Whether or not a government employees 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 Dots negligence occurred within the scope of
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 Does 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
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.
categories are exempted governmental activities: