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Virginia Federal Tort Claims Act Lawyer

A Virginia Federal Tort Claims Act (FTCA) lawyer answers frequently asked questions about the FTCA and personal injury cases involving government employees.

Can someone file an injury claim against a government entity?

It used to be the case in most jurisdictions that people could not sue the government. Even now, most state governments have immunity to a certain extent, but that depends on state laws. In Virginia and the District of Columbia, individuals are generally able to bring claims against a government actor. But there are exceptions.

One example could be if a police officer is in pursuit of a criminal suspect and they drive over someone’s curb and take out their mailbox. The property owner could sue a private citizen for doing that, but chances are they wouldn’t be successful in going after the police officer or the city or government entity in that situation. The most important thing to remember when filing a claim against a government entity is that the statute of limitations might be different than the normal statute of limitations, and almost all claims against government entities require timely notice to the proper government entity.

People have less time within which to put the government on notice of the claim, and that is typically set by statute. These statutes are generally referred to as notice of claims statutes, and they vary depending on the government actor and the type of action. For instance, in Virginia, there is a state Tort Claims Act that includes a statutory provision requiring notice of the claim to the Commonwealth or transportation district within one year after the cause of action accrues. In Washington, D.C., there is a statutory provision requiring notice to the Mayor or his designee within six months after the injury. Claims against the federal government and its agencies are governed by the Federal Tort Claims Act, which typically requires notice within two years of the injury.

The statutes have different time periods within which a person must put the proper government agency, entity, or official on notice. These statutes also will specify what information needs to be included in the notice of claim, and which representative of government needs to receive the notice. Because prompt notice is typically required in order to bring a claim against a government entity, it is important to contact an attorney immediately if you have been injured if you believe that a government actor was involved.

What are examples of ways in which an individual can bring a case against a government entity?

One example is that essentially every government agency has motor vehicles that their employees drive, so if you’re driving on the road and you’re injured through the negligence of a federal employee, for example if they run a stop sign and T-bone your car, you will likely have a viable negligence claim. There is a specific process that you have to go through, under the Federal Tort Claims Act (FTCA), in order to bring that claim. It has its own rules as far as when the notice needs to be given, how it needs to be given, and what type of information needs to be provided to the government, and it also sets the different timeline as far as when you can take action. You basically have two years from the date that you’re injured to put the agency or department on notice with a very specific set of information. That information needs to include what’s known as a “sum certain,” which is a dollar figure that is a snapshot of the damages that you’re claiming. Unfortunately, the failure to include a sum certain can be construed as a waiver of your rights under the Federal Tort Claims Act. The reason it exists is that the government has waived its immunity (the government used to be immune from suit, period) to an extent, in cases of negligence, but by doing so they’ve set up a regime with very strict guidelines that need to be followed.

The FTCA is the most common way to bring a claim against a government entity, but there are some other ways. One that’s not as widely known but is talked about frequently in legal academia is a “Bivens Action,” and that allows for a cause of action against a specific employee, and not their employer. You wouldn’t be able to bring a Bivens action in a negligence case, but the Bivens decision was based on a Fourth Amendment violation, and it’s a constitutional right. If there is a constitutional implication, then a Bivens action might be the way to go. Those are just two types of actions, but the Federal Tort Claims Act would probably be the most common avenue to recovery against federal government agencies. Virtually every state also has its own tort claims act, so it’s important to get an attorney involved as early as possible so that they can conduct a thorough investigation.

An example would be a slip and fall on government property, or getting into an auto accident with a government worker. Another situation might be if you’re injured on a train that is owned by the government. There is a whole host of situations in which you might have a claim. That’s why it’s important to get involved with an attorney early, so the investigative piece can be completed in a timely manner. It takes time to investigate these claims, and sometimes there are multiple entities involved. Another example is that people get hurt at national parks sometimes, and they might think that they should sue the state where it happened. They might send a letter to the Secretary of State for the Commonwealth of Virginia, for example, if they are injured at the Manassas National Battlefield Park, but that probably will not suffice under the FTCA. If the land is owned by the National Park Service, they have somebody who handles these claims. On any piece of government land, there could be a few possibilities as to which government entity actually owns the land, and an attorney can help to figure out who the right party is. Sometimes, there may even be a potential claim against multiple government entities.

How are damages determined in these types of cases?

For the most part, it’s the same as a personal injury action. Your damages can include lost wages, property damage, pain and suffering, and your medical bills. It is different in that the way that a plaintiff’s attorney would evaluate a personal injury case changes when you’re dealing with federal government. You still take into account the same things, but by dealing with the government, there are some rules that make it a little more difficult. Everything has to be in the documentation. With FTCA cases, you don’t have the right to a jury trial. If you file in federal court, you’re only going before a judge, not a jury, and sometimes it does take a room full of individuals who can empathize to see the full value of the case and to award full compensation. The jury system provides for that. That’s how we administer justice in our country, and it’s the plaintiff’s best shot at a fair shake. The medical documentation in an FTCA case really has to be there, because you’ve got to submit all of that up front when you submit your Form 95 to put them on notice, or as soon as practicable. You’ve got to provide as much documentation as you can, and it’s an uphill battle from there if there is scant medical evidence.