The FTCA did not do away with sovereign immunity; rather, it created a waiver of sovereign immunity under specific circumstances. The federal government, under the FTCA, specifically consented to be sued for negligence under the conditions specified in the Act.

To bring a negligence case under the FTCA, the claimant must have been damaged by the negligence or wrongful act of a federal employee acting within the scope of his or her employment in circumstances where a private person would be liable under the law of the state in which the negligence or wrongful act occurred. The U.S. Supreme Court has held that the FTCA is to be liberally construed (Black v. Neal, 460 U.S. 289, 298 [1983]).

The FTCA grants exclusive jurisdiction to federal district courts and limits remedies to monetary damages only (no punitive or exemplary damages). All federal agencies and instrumentalities (such as the post office) are covered. A key limitation is that liability only attaches if the federal employee was acting within the scope of his or her employment when the act occurred. This does not mean whether the employee had the authority to act, only whether he or she was carrying out the business of the government. A second key limitation is that the government is liable only if it would be liable under state law if it were a private person.

It should be noted that numerous procedural rules apply to an FTCA claim:

• The claim must be filed first against the agency involved within two years of the negligent act.
• The agency has six months to accept the claim or reject it.
• If the agency
  rejects the claim or does not decide within such six-month period, the claimant may sue.
• All suits must be brought in federal district court in the venue where the plaintiff resides or the negligence occurred.

All suits under the FTCA are exclusively against the U.S. and not the individual employee or agency involved.

In fact, if the employee was acting within the scope of employment, the employee cannot be individually sued or separately sued in a civil action.

Applying the FTCA to federal government fleet operations, if a fleet driver is negligent while performing duties in the scope of his or her employment, the FTCA waiver to sovereign immunity will apply and the federal government will be subject to suit for monetary damages. And in government fleet operations where large fleets of trucks and vehicles are operated, the potential liability for the federal government is large. For example, two representative cases noted in the sidebar [Representative Cases on page 24] contain rulings against the federal government. In both cases, the U.S. Postal Service was found negligent resulting from the acts of the USPS drivers. Monetary damages ranged from $450,000 to $600,000.

Individual State Tort Claims Acts

The picture is not as clear under state law. Most states have adopted individual state tort claims acts, many patterned after the FTCA. However, the majority limit recovery under the individual state tort claims act. The National Conference of State Legislatures (NCSL) compiled a comprehensive list of all state tort claims acts (see www.ncsl.org). According to the NCSL, at least 33 states limit or cap recovery under their respective state tort claim acts. The balance of the states and the District of Columbia, following the FTCA, do not limit or cap recovery.

Some states cap recovery as low as $100,000. Florida, for instance, capped recovery at $100,000 for individual and $200,000 for claims until October 2011, when the caps will be increased to $200,000 and $300,000. Illinois and Massachusetts, for example, cap recovery at $100,000, except for negligence involving motor vehicles, which are not capped. To understand what liabilities state government fleet operators face, fleet professionals must understand the specific waivers to sovereign immunity adopted in their states.

As with the FTCA, the individual state tort claims acts have varying administrative procedures that must be followed in order to assert a claim. It is imperative that the claimant and the potential defendant (public fleet organization) understand the specific procedures in their state.

Municipal and local government liability for negligence of their employees generally follows the law of the state in which the local entity is located.

By way of illustration, a number of state and local government cases are provided in the sidebar (page 25). Two cases against the State of California, in particular, reflect the significance of potential fleet-related verdicts decided in favor of the plaintiff. In one case, the judge found the Los Angeles County Metropolitan Transportation Authority negligent for failing to adequately train a bus driver; damages amounted to almost $14 million. A second case against the City of Los Angeles, also decided by a judge, levied $7.7 million against the City for negligence involving a police officer vehicle chase. Not to be outdone by California, the City of St. Louis was recently found negligent in a jury verdict award of $3 million after a City driver negligently made a right turn on a red light, causing the plaintiff to crash into parked cars. Finally, although not caused by the negligence of the fleet vehicle driver or even the fleet organization, the State of New Jersey was found negligent for damages exceeding a whopping $31 million as a result of adopting a policy to not repair a knowingly dangerous condition until an accident occurred. All of these cases are evidence of the potential cost of damage awards even though punitive awards are not permitted. For more details, see sidebar “Representative Cases.”

What does this all mean?

While individual government employees or agencies may not be held responsible for their own acts or the acts of their employees, it is still expected that the fleet organization and its drivers practice the applicable standard of care that is reasonable for the circumstances in play. In essence, it is practical to expect that innocent injured parties will seek damages (and often be successful) against a negligent defendant, even if that defendant is a government entity. Consequently, the fleet manager should be responsible for exercising due care to protect the governmental entity and its tax-paying constituents against large, avoidable negligence damage awards and the resulting negative publicity. Government fleet managers, therefore, should understand the doctrine of sovereign immunity, the FTCA, and individual state tort claims acts as appropriate for their governing jurisdiction.

Representative Cases

To illustrate the potential liability facing government fleet operations, the following are some representative verdicts and settlements awarded to plaintiffs:

1. Federal: $450,000 verdict; U.S. District Court Judge Thomas Penfield Jackson ruled in favor of a plaintiff, who suffered back and knee injuries after his van was rear-ended by a U.S. Postal Service truck. Source: www.chaikinandsherman.com.

2. Federal: $600,000 verdict; plaintiff was riding a motorcycle when a U.S. Postal Service truck negligently pulled out from a stop sign in front of plaintiff, who suffered major fractures and injuries. Source: www.chaikinandsherman.com.

3. California: $13,820,000 verdict; Garcia v. Los Angeles County Metropolitan Transportation Authority. Joseph Garcia, a 56-year-old unemployed passenger was traveling on an LACMTA bus that collided with a parked car. Garcia suffered severe brain damage and hemiplegia of his left side. He successfully argued that the LACMTA was negligent by inadequately training the bus driver (she failed to maintain the required minimal clearance from parked vehicles four times during training). Source: www.greene-broillet.com (Greene, Broillet & Wheeler, LLP).

4. California: $7,675,000 verdict; Tartakoff v. City of Los Angeles. A 41-year-old woman was paralyzed when the car she was driving was struck by a car traveling up to 100 miles an hour fleeing from police. She successfully alleged the police were negligent in chasing the suspect without lights or siren. Source: “Jury Awards Paraplegic $7.65 Million From City,” Jane Fritsch and Charisse Jones, L.A. Times, March 29, 1990.

5. Missouri: $3 million jury verdict; Alnita Smily, 21, was awarded $3 million in her suit against the City of St. Louis. She successfully argued that a marked City truck negligently made a right turn on a red light, causing her to swerve to avoid a collision and crash into parked cars. The crash resulted in serious head injuries, a severed ear, and back injuries. Source: “Jury Orders St. Louis to Pay $3 million Over Crash,” Valerie Schremp Hahn, St. Louis Post Dispatch, November 12, 2010.

6. New York: $1.6 million jury verdict; plaintiff suffered injuries in auto accident caused by municipality failing to maintain safe road conditions (stop sign blocked by trees and shrubs). Source: www.friedmanhirschen.com.

7. New Jersey: $31,295,007 verdict; Nicholas Anderson, 18, was driving his car in Camden County when a driver going
in the opposite direction, into his lane, caused him to swerve onto the shoulder, which was six inches lower than the highway. Unable to drive back, he went out of control, hitting the guardrail. The guardrail penetrated his car and severed his left leg. He suffered other significant injuries. At trial, it was shown that the County knew of the dangerous conditions of the shoulder and guardrail but pursuant to its policy of not fixing safety conditions until there is an accident, did nothing to correct the unsafe condition. Source: www.feldmanshepard.com.

About the Author

Janis Christensen, CAFM, is director of Corporate Fleet Consulting Services at Mercury Associates, Inc.

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