REMARKS: TORTS / “ ‘Discretionary Function Exception’ to Federal Tort Claims Act – Mechanic’s Action Amounts to ‘Government Policy’ ”.

From New Rules & Decisions week of November 12, 2012.

Free copy of case available here.

An observation: The dissent in this case opined that this was a particularly harsh and unfair application of the “Discretionary Function Exemption” to a circumstance that smacked of ordinary negligence by an employee.

The Federal Tort Claims Act is a staple of aviation tort litigation – often brought against air traffic control, which is of course run by the federal government.

The point of the Act is to waive sovereign immunity that otherwise protects the federal government from lawsuits by private citizens – citizens injured by torts committed by federal employees.

The idea is that the federal government is answerable in money damages for wrongful acts by its federal employees who cause injury to a private citizen – for instance by negligently directing one aircraft into another.

One of two basic exceptions to the Act is the so-called “Discretionary Function Exemption”. The statute does not define what this phrase means. Since the landmark case of Dalehite v. U.S., 346 U.S. 15, 28 (1953), the courts have often defined “discretionary” to refer to “acts of a governmental nature or function”.

Kohl v. U.S. is another is a long line of judicial struggles with this carve-out to the Federal Tort Claims Act.