The FTCA and Government Incentive for Poor Policy Essay

The FTCA and Government Incentive for Poor Policy - Essay Example However, the passing of the act also contained thirteen exceptions that limit the scope of the FTCA. One of these exceptions, the Discretionary Function Exception (DFE), prevents government liability in numerous cases due to its vague use of the term discretion. This paper examines the history and creation of the FTCA, its exceptions, the role of the DFE, and concludes with suggestions INTRODUCTION: On a foggy Saturday in 1945, Lieutenant Colonel William Franklin Smith Jr. piloted a B-25 Mitchell bomber during a routine personnel transport mission. Although alerted to the sky’s zero visibility, LTC Smith proceeded to attempt to land at the LaGuardia Airport. Subsequently, the plane crashed into the north side of the Empire State Building killing fourteen people, injuring an elevator operator, and causing approximately one million dollars worth of damage (Richman 2008). As a member of the United States Military, and, therefore, a federal employee, was the government liable for the deaths and damage? Although at the time, sovereign immunity protected the government, public outrage over the B-25 Empire State Building crash paved the way for new public policy that allowed people to sue the U.S. government. Congress enacted the Federal Tort Claims Act (FTCA), in 1946, in attempt to provide justice for those injured due to government means or employees. However, the FTCA includes thirteen exemptions that restrict its use (Weaver & Longoria 2002). One in particular, the Discretionary Function Exception (DFE), seemingly exempts the government from liability in so many situation that it may render the FTCA moot. After examination of the history of the FTCA, the DFE, and case examples, it becomes clear that the DFE is too broad and defeats the purpose of the FTCA. Furthermore, alternatives exist that limit the scope of the DFE and retain the justice first sought with the creation of the FTCA. HISTORY: James Madison of the First Continental Congress proclaimed ther e should be limits on the United State’s sovereign immunity such that citizens had the right to make claims against the government (Weaver & Longoria 2002). Sovereign immunity is part of common law jurisdictions that dates back to English Law. It generally states that a sovereign or state cannot be charged with a criminal or civil offense. Prior to 1946, the only way to sue the government was by private bills that relied on legislative committees. However, the private bills proved to be expensive, time-costly, and frequently unjust. Nevertheless, the use of private bills continued until 1922 when Congress passed the Small Tort Claims Act. The Act authorized every federal department or establishment to process claims on private property up to one thousand dollars. This act also proved unjust as it covered property damaged by a federal employee but not a life taken by a federal employee (Weaver & Longoria 2002). Following heavy legislation and cases such as the B-25 Empire Stat e Building Crash, the Seventy-Ninth Congress passed the FTCA as Title IV of the Legislative Reorganization Act, 60 Stat. 842. The Act states it intentions clearly: "The United States shall be liable... [for] tort claims, in the same manner and to the same extent as a private individual under like circumstances" (sec. 2674). However, the act also includes thirteen exceptions to government liability (Cohen 2007). Examination of the Discretion Function Exception provides several examples as to why the court may interpret the exceptions too broadly to be effective. THE DFE: The Discretionary Function Exception protects the government against claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of