Federal Tort Claims Act Cases: Recovering for Medical Malpractice, Personal Injury, and Property Damage

Limits on the Independent Contractor and Discretionary Function Exceptions

Recording of a 90-minute CLE webinar with Q&A

Conducted on Wednesday, July 8, 2020

Recorded event now available

or call 1-800-926-7926
Program Materials

This CLE webinar will instruct personal injury attorneys on the prerequisites for filing suit under the Federal Tort Claims Act (FTCA) and how to defeat the government's motions to dismiss or for summary judgment based on the "independent contractor" and the "discretionary function" exceptions to the FTCA. Many times these exceptions simply do not apply, and careful attention to the facts, the law, and drafting can dissipate these rote defenses.


Employees and officers of the federal government commit torts like any other member of the public. Injured parties can sue the federal government to recover damages only because under the FTCA, the United States waives sovereign immunity for certain types of common law claims. Examples of actionable claims include medical malpractice, "slip-and-fall," harassment, government misconduct, or destruction of property.

The FTCA, however, provides only a limited waiver of sovereign immunity. The FTCA waives immunity for acts of federal "employees," and the waiver expressly excludes acts of independent contractors. Whether the tortfeasor is an employee or an independent contractor is often a hotly challenged issue, and the circuit and lower courts use many different standards to resolve the issue. Thus, practitioners must understand the law in their jurisdiction and how to plead the facts to withstand a motion to dismiss or for judgment on the pleadings.

Additionally, the FTCA does not waive immunity if the employee's acts involved a "discretionary function." Whether a function or act is discretionary is governed by subjective standards in U.S. v. Gaubert, 499 U.S. 315 (1991), and Berkovitz v. U.S., 486 U.S. 531 (1988). Due to the subjectiveness of these "tests," there is no clear consensus at the circuit level regarding when an act involved a discretionary function.

Listen as the panel discusses the FTCA, the prerequisites for a suit, these often litigated jurisdictional exceptions, and how to proceed to the merits of the case.



  1. Overview of the FCTA
    1. Challenges of suing the government
    2. Prerequisites to suit
    3. Jurisdictional nature of the exclusions
  2. Independent contractor exclusion
  3. Discretionary function exclusion
  4. Practical strategies for avoiding dismissal in the early stages of the case


The panel will review these and other relevant matters:

  • Costs and benefits of suing the federal government
  • General prerequisites for suit under the FTCA
  • The independent contractor exception
  • The discretionary function exception
  • Tips for surviving the government's efforts to dismiss the case


Jaques, Michael
Michael T. Jaques

Sessums Dallas

Mr. Jaques has 29 years of experience litigating in Mississippi state and federal courts, achieving successful...  |  Read More

Sparrow, J. Callen
J. Callen Sparrow

Heninger Garrison Davis

Mr. Sparrow’s areas of practice include personal injury law, wrongful death, product liability, general...  |  Read More

Wallach, Ian
Ian Wallach

Founding Partner
Law Offices of Ian Wallach

Mr. Wallach's practice is substantially devoted to criminal defense, with much of it involving the representation...  |  Read More

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