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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  negligence—and, therefore, whether the government is liable—will be determined  by  the  tort  law  of  the  place  where  the conduct  occurred. Questions, such as whether the violation of a local law, by itself, constitutes negligence, are  answered  by  applying  the  doctrines law. 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 performing  his Under  Virginia Therefore,  Mr. performing  his 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,   Door’s   acts   constitute   negligence. Therefore, Mr. Johnson’s 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 malicious prosecution. 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 federal law. 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. No  other 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. Government  Employees Under the FTCA, the government is liable only for the   wrongful   acts   of   its   employees.   The   term government  employee  is   defined   to   include   the following  individuals: l l l Officers  or  employees  of  any  federal  agency Members of the military or naval forces of the United  States Persons acting on behalf of a federal agency in an   official   capacity,   either   temporarily   or permanently,  and  either  with  or  without compensation 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 CONTRACI’OR.—  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 contractor’s 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 contractor’s 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. Examples   of 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. 12-2

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