The FTCA does not waive immunity for all torts: major exceptions are carved
out in
28 U.S.C. § 2680
. These exceptions stipulate that the federal
government will not be held liable for the claims against its employees arising
out of assault, battery, false imprisonment, false arrest, malicious prosecution,
abuse of process, libel, slander, misrepresentation, deceit, or interference with
contract rights. Also not allowed are damages from a quarantine imposed by
the federal government. Claims based on intentional actions that are excluded
from the FTCA may be brought as
Bivens actions, if they rise to the level of
constitutional violations (constitutional torts).
Products liability claims are not specifically addressed in the FTCA. However,
cases that have dealt with questions of federal government liability for
defective products generally dispose of such claims on government contractor
or discretionary function grounds. For example, in a toxic tort claim against the
federal government under the FTCA for neurological problems suffered by an
infant allegedly as a result of exposure to roof sealant, the court held,
inter
alia, the claims against the government were barred under either the
independent contractor exception or discretionary function exception. Goewey
v. U.S., 886 F. Supp. 1268 (S.C. 1995). Strict liability for ultrahazardous
activities is not allowed against the federal government under the FTCA. Laird
v. Nelms, 406 U.S. 797 (1972).
Perhaps most significantly, § 2680(a) precludes recovery from the government
for:
"[A]ny claim based upon an act or omission of an employee of the
Government, exercising due care, in the execution of a statute or
regulation, whether or not such statute or regulation be valid, or 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 the Government, whether or not the discretion involved be
abused."
This is the discretionary-function exception, and is discussed more fully below.
