Release of government employee from liability does not prohibit employer liability under the FTCA

Law Reporter, May 1999

Kee v. United States, _ F.3d _, No. 97-17347, 1999 WL 42168 (9th Cir. Feb. 2,1999).

The Ninth Circuit Court of Appeals held that release of a federal employee from liability does not also release her employer from liability under the Federal Tort Claims Act (FTCA), 28 U.S.C. 2671 et seq.

Here, Kee was killed when her car collided with that of a federal employee acting within the scope of employment. Kee's representatives signed a release with the employee's insurer releasing all claims arising from the accident except those against her employer. The representatives presented a claim to the federal government, which was rejected. They then sued the United States, alleging it was liable under the FTCA for the negligence of its employee. Defendant argued any liability it bore was derivative and, because plaintiffs had released its employee from liability, it could no longer be liable. The trial court granted defendant summary judgment.

Reversing, the Ninth Circuit noted that under the FTCA, federal courts have jurisdiction over civil claims against the United States for injuries caused by the negligence of government employees acting in the scope of their employment in situations where the government, if a private person, would be liable. However, the court said, the immunity section of the statute, 28 U.S.C. 2679(b)(1), essentially immunizes government employees from liability for negligent acts that are committed in the scope of their employment.

The court noted that if employee immunity precluded employer liability, the government would never be liable in FTCA cases. The court said in FTCA cases, government liability is determined by looking to whether the employee is liable factually, rather than legally, for the injury. Thus, the determinative factor is whether the incident would create liability for the employee if he or she were not immune. Any other approach would produce an illogical result.

Plaintiffs Counsel:

Robert N. Hilgendorf, Santa Fe, N.M.

[ Comment: For another FTCA case involving an automobile accident with a federal government employee, see Salas v. United States, 41 ATLA L. Rep. 219 (Aug. 1998).

*Daniel R Metschl, Buffalo, N.Y., represented plaintiff.]

[Documents in the Salas case are available through the Court Documents section in the back section of this issue, courtesy of plaintiffs' counsel.]