An Army Reserve doctor calls the time of death for yet another novel coronavirus disease 2019 (COVID-19) patient at the Lincoln Family Hospital in the Bronx.1 Down the hall, the notification to the family of their loved one’s passing does not go well. The crying and mourning that followed their loved one’s loss was expected; but the family’s promise to “make that quack Army doctor pay for killing our father!” was not.
“Where are the rest?” asks the Jacobi Medical Center hospital administrator of the New York National Guard Soldiers as they deliver six ventilators—well below the twenty that the hospital requested. While the driver explains that they had to make a choice and delivered some to a different hospital, the administrator blurts out, “People are going to die here because of what you did. And when they do, I’m going to tell them to hold you accountable!”
Broken glass covers the roadway, and flashing lights flood the night. New York City firefighters pry an elderly couple out of their car, which is now firmly lodged under an Army Light Medium Tactical Vehicle (LMTV) full of undelivered medical supplies on its way between civilian hospitals. As a paramedic asks the driver his wife’s name, he says under his breath, “somebody is going to pay for this.”
This is an unprecedented time. Not only is the nation under quarantine, but Soldiers across the Army—active duty, National Guard, and Army Reserve—are deployed to New York, New Orleans, and across the country assisting civilians in responding to the COVID-19 pandemic. However, when the Army deploys, accidents follow. When Army doctors treat patients, some of them will die. These tragic outcomes result in inevitable civil litigation, and—in response—injured citizens seek recompense from the federal government.
Commanders and legal advisors responding to this pandemic may have questions about their civil liability. They are eager to help, but are confused about what this response may mean for their pocketbooks and professional careers. This article provides a basic framework to assist healthcare providers and their legal advisors in understanding the litigation risks and defenses in a pandemic response.2 To do so, it is important to first understand a basic framework of tort litigation—including the defenses against liability, both under normal circumstances and during the pandemic response. Critical to understanding the Army’s civil liability is a discussion of the Westfall Act, which shields federal employees from personal liability. Finally, this article uses vignettes to illustrate likely situations involving tort liability during the pandemic response, highlighting where the Army might pay, when it is immune, and some practical best practices to follow.
“[We’re] From the Government, and [We’re] Here to Help”3
In mid-March 2020, the unthinkable happened. The United States found itself in a crisis, the likes of which have not emerged since 1918, when the deadly Spanish flu pandemic infected one-third of the Earth’s population.4 Almost one hundred years later, COVID-19 spread from an outbreak in Wuhan, China, to over 180 countries, including the shores of the United States, in fewer than 100 days.5 After a surge of infections poised to overwhelm local hospitals, governors across the country declared states of emergency.6 On 13 March 2020, the President of the United States declared the ongoing COVID-19 pandemic a public health emergency.7 Since then, federal agencies have been responding to the emergency under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act).8 The Department of Defense (DoD) is sending healthcare providers, including regular Army, reservists, guardsmen, and retirees who returned to duty, to Army field hospitals or—in some cases—to civilian hospitals to treat civilian patients.
Seeing the difficulty of their tasks—and the likelihood of significant death—Army healthcare providers have, naturally, worried whether their service exposes them to medical malpractice claims. Questions started to arise: “What is my liability? Will I be personally sued?” The short answer is ‘no.’ To understand why, a brief description of the Army’s usual liability for accidents and negligence under the Federal Tort Claims Act (FTCA) is in order.
“It’s Good to Be the King”9—Sovereign Immunity and Tort Liability
As a sovereign, the United States may not be sued without its consent. 10 For a court to have jurisdiction and allow citizens to sue the federal government, a plaintiff must show that one of the limited waivers of sovereign immunity applies.11 One such waiver of sovereign immunity is for injury or damages caused by the negligence of federal employees acting within the scope of their employment under the FTCA.12
The FTCA makes the federal government liable for cases sounding in tort to the same extent as a private person would be.13 The tort must be a violation of a state substantive law, such as a traffic accident or instances of medical malpractice.14 Though the federal government is generally treated like a private person, the government enjoys additional protections from civil suit.15 The government is not liable for every negligent act of its employees.16 The FTCA carves out several broad exceptions to the waiver of sovereign immunity, such as when federal employees exercise discretion in their decision making, when damages arise from the imposition of a quarantine, and when damages occur in a foreign country.17 Notably, the government is also not liable for the criminal actions of federal employees that constitute intentional torts—specifically assault, battery, false imprisonment, false arrest, abuse of process, libel, and slander.18 When an exception applies, sovereign immunity remains, and federal courts must dismiss the case for a lack of jurisdiction.19 If an exception does not apply, the federal government may be liable, but—as discussed below—individual federal employees are immune from personal civil liability.
“It’s Good to [Work For] the King”20—Federal Employees’ Protection from Civil Liability
Federal employees, including Soldiers, are protected from individual liability for their negligent acts while performing their official duties.21 In response to the 1988 Supreme Court holding of Westfall v. Erwin, allowing federal employees to be liable for negligence in non-discretionary actions, Congress quickly passed the Federal Employees Liability Reform and Tort Compensation Act of 1988—commonly known as the Westfall Act—to protect federal employees from individual civil suit.22 The Westfall Act provides that federal employees acting within the scope of their employment are immune from FTCA suits and that the United States shall be substituted for the employees.23 Therefore, whether a federal employee is protected from liability turns on the scope of employment analysis in accordance with the applicable state law of respondeat superior. While there is some variance in state law, generally, respondeat superior provides that an employer may be liable for the negligent acts of its employees, if the employee was acting at the direction of, for the benefit of, or in the furtherance of the objectives of the employer.
What happens if a federal employee is sued in state court? If that occurs, the Westfall Act still controls; the United States is substituted for the name of the Soldier being sued.24 If a plaintiff files a lawsuit against an individual Army employee in a state court, the United States Army Legal Service Agency (USALSA)—specifically, the Litigation Division—works with the Department of Justice (DoJ) on certification, removal, and substitution.25
This process is outlined in Army Regulation 27-40. First, the employee’s supervisor declares that the employee was acting within scope of duty, and the employee requests DoJ representation.26 That request is then forwarded to the Tort Litigation Branch at the Litigation Division, USALSA, which then contacts the appropriate U.S. Attorney’s Office and offers the Army’s recommendation as to substitution.27 After a fact-specific analysis of respondeat superior, the U.S. Attorney for that district certifies that the employee acted in the scope of duty.28 Next, the Assistant United States Attorney (AUSA) removes the case to a federal court, because the federal government only consents to suit in a federal court.29 Finally, the AUSA substitutes the United States in place of the employee and defends the United States in the lawsuit.30
Once removed, the United States ideally asserts any applicable defenses in a motion to dismiss, quickly ending the matter. Regardless of whether the United States is found liable or not, the Westfall Act protects federal employees regardless of the outcome of the civil litigation. Litigation arising from the federal response under the COVID-19 pandemic would be no different in terms of processes. However, as discussed below, the Army has additional defenses from civil liability in responding to a crisis.
“Whoever Has the Gold Makes the Rules”31—Federal Law Protects the Army from Tort Liability During a Pandemic
When responding to a national emergency under the Stafford Act, Congress understood that the DoD and other federal agencies would have to make controversial life or death decisions, and fear of civil liability might cause hesitation and cost lives.32 Therefore, Congress granted federal agencies the same protection for discretionary functions of its employees under the Stafford Act as under the FTCA.33 Under the Westfall Act, whether working at their normal place of duty or assigned to a field hospital or civilian hospital, DoD healthcare providers are immune from individual civil liability during the pandemic; this applies when they are working within the scope of their employment.34 However, if the federal employee was performing a discretionary function, the Stafford Act bars the court’s jurisdiction to hear the case and shields the Army from liability.
Legal advisors and commanders may wonder what makes a decision, or action, “discretionary,” as defined by the statute. The Supreme Court has provided a two-part test for determining whether a federal employee’s conduct qualifies as a discretionary function that applies to both FTCA cases and responses under the Stafford Act.35
First, the conduct must be a matter of choice, meaning neither state statute nor federal regulation binds the employee to act in a particular manner.36 This leaves the decisions of when and how to act to the employee’s discretion.37 If the statute or regulation directs a course of action, the employee has no discretion on that matter.38 For example, traffic laws direct a speed limit. Soldiers have no discretion to disregard traffic laws when driving on roads and highways. However, a commander’s decision to favor one route over another is likely discretionary.
The second area of analysis is whether the discretionary function exception was meant to shield this type of judgment from judicial second-guessing.39 Existence of a regulation or policy that does not direct specific action creates the strong presumption of agency consideration and intentional promulgation of discretion.40 As is evident, the federal government has strong protection during a pandemic under the Stafford Act. In addition to the protections of federal law, the government may be shielded under state law as well.
“You Want to Get to Him, You Got to Go Through Me”41—State Action May Shield Health Care Providers from Civil Liability
As the COVID-19 pandemic escalated, healthcare workers across the country faced the same concerns of risk of infection and potential civil liability. New York City alone accounted for over 160,000 confirmed cases of COVID-19, and officials needed to enable treatment without doctors and nurses fearing a lawsuit.42 The Coronavirus Aid, Relief, and Economic Security Act protects volunteer health care workers from civil liability in the absence of reckless conduct or gross negligence; but, to date, no other federal legislation protects federal healthcare providers.43 Six states, however, have taken action either through state legislation or governor’s emergency executive order to shield healthcare providers from civil liability.44
On 23 March 2020, the governor of New York declared healthcare providers immune from civil liability for any injury or death allegedly sustained as a result of an act or omission in response to the COVID-19 outbreak, except for cases of gross negligence.45 State legislatures of Massachusetts and New Jersey have enacted laws, and governors of Connecticut, Illinois, and Michigan have declared orders providing similar protection for healthcare providers responding to COVID-19.46 Just as the federal government can be sued in the same capacity as a private individual, it can also defend itself with the same defenses as a private individual. Therefore, during the pandemic, if the Stafford Act does not protect the Army from civil suits, state law or state executive orders may. In addition to these state and federal statutory defenses, common law may further protect Army medical providers with temporary duty at civilian hospitals.
“Fired? But I Don’t Really Even Work Here!”47—The “Borrowed Servant” Doctrine
A surviving family turns to civil action for recompense after the death of their loved one to COVID-19 and learns that the healthcare providers were Army doctors and nurses assigned to a civilian hospital. Do they sue the hospital or the Army? Setting aside the Stafford Act and state law protections, the Army doctor or nurse may qualify as a “borrowed servant,” providing the United States with an affirmative defense under the common law.48
Generally, the borrowed servant doctrine shifts liability from a worker’s general employer to the special employer, who is temporarily borrowing the employee.49 If the special employer was in the better position to prevent the borrowed employee’s negligent act that resulted in injury, liability is transferred.50 Factors courts use to determine which master the employee was serving vary by state, but generally include the extent of control over the details and timing of the employee’s duties, the degree of supervision associated with the nature of the work, the duration of the temporary work, and the source of equipment and instruments.51 Ordinarily, Army medical providers routinely enter into training agreements with civilian hospitals. This allows military doctors to receive additional training at no cost to the government while, in essence, civilian hospitals receive a free employee.52 In return, the civilian hospital will assume liability for any medical malpractice allegations.53 However, such contracts are not feasible when responding to a pandemic.
Whether an employee is a borrowed servant is a factual determination; it focuses on the level of control and supervision the civilian hospital exercises. If the civilian hospital controls a healthcare provider’s duties, the healthcare provider is most likely a borrowed servant; in that case, the civilian hospital—not the Army—is liable for any alleged tort, including malpractice. With the basic framework and controlling legal doctrines outlined, examples may best illustrate the Army’s liability and defenses in the COVID-19 response.
Vignettes: Civil Liability During a Public Health Emergency
While discussing the tort litigation framework is helpful, examples may provide better clarity. Turning to the situations at the beginning of the article, let’s explore each in a bit more depth. In these vignettes, assume healthcare providers, including uniformed doctors and nurses, from Fort Bragg are deployed to assist a National Guard medical unit running a field hospital in New York City.
The field hospital is treating civilian patients with COVID-19 but is overwhelmed and lacks ventilators, leading to the death of several patients, whose families sue the providers for medical malpractice.
As an initial matter, these Army providers are immune from personal civil liability under the Westfall Act.54 If named as a defendant, the Torts Litigation Branch of the Litigation Division at USALSA will request the U.S. Attorney for the Southern District of New York to scope and certify the providers, as they were acting in their official capacity.55 Next, Torts Litigation Branch will work with the AUSA to remove the case to federal court and substitute the United States in place of the provider. 56 Because the providers used discretion and judgment to triage and treat patients, the United States will file a motion to dismiss.57 They would argue that, as the government is immune from liability for the discretionary function of triaging patients under the Stafford Act and the FTCA, the court lacks subject-matter jurisdiction.58 Alternatively—and unless the providers clearly committed gross negligence—the AUSA would seek to invoke the additional protections under the New York Governor’s Executive Order, granting healthcare providers immunity from liability for deaths sustained as a result of act or omission in response to the COVID-19.59
As a practical matter, it is important to understand lawsuits under the FTCA arise several years after the incident.60 Therefore, as it will assist in litigation down the road, doctors and units should try to write down any sort of incidents and facts to the best of their ability. However, if that is not possible or practicable, failure to document everything that happened will not erode the protections under the FTCA—it just makes trying a case more difficult.
A National Guard LMTV driver hits a pedestrian while delivering medical supplies to the field hospital, severely injuring the pedestrian, who files suit for civil liability.
The government driver is immune from individual civil liability because transporting the supplies was in the scope of duty.61 As discussed previously, the Westfall Act precludes any individual liability. The driver should complete a motor vehicle accident report on a Standard Form 91 regarding the accident in a government vehicle and write a narrative for later litigation.62 After certification, removal, and substitution—and because there is neither a statutory nor common law defense to a traffic accident—the Torts Litigation Branch will coordinate with the AUSA to litigate the case. Even if the provider had been driving between the provider’s duty at the field hospital and the provider’s temporary quarters, this analysis would be the same.
Two civilian hospitals request ventilators, but the field hospital has limited supplies, and the hospital commander chooses to support the local hospital with the larger need. The lack of ventilators at the unsupported hospital results in several deaths that could have been prevented, had they received the Army’s ventilators. The surviving families file suit for civil liability.
As a preliminary matter, the responsible commanders would be protected under the Westfall Act.63 Using the two-part discretionary function test for both the Stafford Act and the FTCA, the commander made a choice in allocating the ventilators, and this is exactly the type of judgment Congress sought to protect from judicial second-guessing.64 Therefore, because the Stafford Act provides immunity for the discretionary function of allocating the ventilators—and the New York Governor’s Executive Order grants immunity to providers for deaths sustained as a result of the omission in response to COVID-19, the United States will file a motion to dismiss. Ideally, and in case the suit proceeds to litigation, the field hospital should document these decisions to the best of their ability.65
Two military healthcare providers from the field hospital are assigned to a civilian hospital to treat civilian patients. One surgical nurse works hand-in-hand with a civilian physician performing cardiac surgery. The other provider, a gynecologist, leads a team of residents in running a make-shift intensive care unit. Patients of both military medical providers die, and the surviving families file suit.
As before, analysis begins with Westfall certification resulting in removal and substitution, then moving to dismiss the lawsuit pursuant to the Stafford Act and/or state substantive law providing immunity.66 If the court denies the motion to dismiss, the United States will litigate and assert the borrowed servant defense with a full analysis of the civil hospital’s control over the providers from equipment used and shifts and patients assigned.67 With these limited details, the nurse is very likely a borrowed servant of the civilian hospital, because the hospital closely monitors her practice. However, depending on the amount of oversight and control the hospital exerts, the gynecologist may not qualify as a borrowed servant based on his field.68
Conclusion: Execute the Mission with Confidence in Protection from Civil Liability
Here is the bottom line: Soldiers and commanders must not let the fear of civil lawsuits prevent their decisive action to save as many American lives as possible. As Army healthcare providers respond across the nation to this historic pandemic, and despite their very best efforts and adherence to the standard of care, some tragic outcomes will follow. Lives will be lost to COVID-19. Accidents will happen. Some family members grieving for their loved ones will file suits. While the COVID-19 pandemic poses unprecedented challenges and uncertainty, the fundamental framework shielding Soldiers from personal liability continues unabated. Commanders and providers should try to document accidents as best as they can, but that should neither prevent nor distract them from executing the mission of providing healthcare to the American people. TAL
1. Richard Sisk, ‘We’ve Got the Energy:’ Military Doctors Relieve Worn-Out Staff in NYC Hospitals, Military.com (Apr. 15, 2020), https://www.military.com/daily-news/2020/04/15/weve-got-energy-military-doctors-relieve-worn-out-staff-nyc-hospitals.html.
2. Special thanks to Lieutenant Colonel Christopher A. LaCour, Chief, Tort Litigation Branch, United States Army Litigation Division, United States Army Legal Services Agency, for his help and comments in preparing this article.
3. Ronald Reagan News Conference, Ronald Reagan Presidential Found. & Inst. (Aug. 12, 1986), https://www.reaganfoundation.org/media/128648/newsconference2.pdf.
4. Mark Terry, Compare: 1918 Spanish Influenza Pandemic Versus COVID-19, BioSpace (Apr. 2, 2020), https://www.biospace.com/article/compare-1918-spanish-influenza-pandemic-versus-covid-19/.
5. Joseph V. Micallef, The National Security Implications of COVID-19, Military.com (Apr. 27, 2020), https://www.military.com/daily-news/2020/04/27/national-security-implications-covid-19.html.
6. Coronavirus: What You Need to Know, Nat’l Governors Assoc., https://www.nga.org/coronavirus/#federal (last updated May 4, 2020) [hereinafter Coronavirus].
7. Letter from Donald J. Trump, President of the United States, to Chad F. Wolf, the Acting Secretary of the Dep’t of Homeland Security et al. (Mar. 13, 2020), https://www.whitehouse.gov/wp-content/uploads/2020/03/LetterFromThePresident.pdf.
8. Congressional Findings and Declarations in Relation to Disaster Relief, 42 U.S.C. § 5121 et. seq. (2018).
9. History of the World, Part I (Brooksfilms 1981) [hereinafter History].
10. United States v. Sherwood, 312 U.S. 584 (1941). “It is elementary that ‘[t]he United States, as sovereign, is immune from suit save as it consents to be sued . . . , and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit.’” Id.
11. United States v. Mitchell, 463 U.S. 206, 212 (1983).
12. Definition of Tort Claims Procedure, 28 U.S.C. § 2671 et. seq. (2006).
13. 28 U.S.C. § 1346(b)(1) (2013); United States v. Orleans, 425 U.S. 807 (1976).
14. Carlson v. Green, 446 U.S. 14 (1980); Jachetta v. United States, 653 F.3d 898, 904 (9th Cir. 2011) (holding that violations of federal law “are not actionable under the FTCA because any liability would arise under federal rather than state law”). There are exceptions for law enforcement officers, but that is well beyond the scope of this article.
15. Exceptions to Tort Claims Procedure, 28 U.S.C. § 2680 (2006).
18. 28 U.S.C. § 2680(h).
19. Aviles v. Lutz, 887 F.2d 1046 (10th Cir. 1989).
20. History, supra note 9.
21. Exclusiveness of Remedy, 28 U.S.C. § 2679(b) (1988).
22. Westfall v. Erwin, 484 U.S. 292 (1988); Federal Employees Liability Reform and Tort Compensation Act of 1988, Pub. L. No. 100–694, 102 Stat. 4563 (l988) (codified and amended at 28 U.S.C. §§ 2671, 2674, 2679 (2006)); Federal Statute—Westfall Act—D.C. Circuit Holds that U.S. Officials are Immune from Alien Tort Statute Claims—Ali v. Rumsfield, 649 F.3d 762 (D.C. Cir. 2011), 125 Harv. L. Rev. 1080, 1080 (2012).
23. 28 U.S.C. § 2679(d); see also Defense of Certain Suits Arisiong Out of Medical Malpractice, 10 U.S.C. 1089 (specifically authorizes certification of healthcare providers as in scope of their duties); see also 10 U.S.C. 1588(d)(1) (extends Westfall Act protection to medical volunteers).
24. U.S. Dep’t of Army, Reg. 27-40, Litigation para. 4-4 (19 Sept. 1994) [hereinafter AR 27-40].
28. Certification an Decertification in Connection with Certain Suits Based Upon Acts or Omissions of Federal Employees and Other Persons, 28 C.F.R. § 15.4 (1976) (providing authority for a U.S. attorney to make the statutory certification that the federal employee was acting within the scope of his office or employment with the federal government at the time of the incident out of which the suit arose); see also 28 U.S.C. § 2679.
29. 28 U.S.C. § 2679(d)(2) (directing removal to federal court); see also 28 C.F.R. § 15.4 (providing authority for removal to federal court); Federal Officers or Agencies Sued or Prosecuted, 28 U.S.C. § 1442(a)(1) (1969); Removal of Civil Actions, 28 U.S.C. § 1441(c)(1)(A) (2011).
30. 28 U.S.C. § 2679(d)(2) (directing substitution of the United States as the party defendant).
31. Johnny Hart, Wizard of Id, Dallas Morning News, (May 3, 1965) (A comic strip by Brant Parker and Johnny Hart. It can be located in Section 2, Quote Page 9, of the Dallas Morning News, located in Dallas, Texas); see also The Golden Rule: Whoever Has the Gold Makes the Rules, Quote Investigator (Jan. 11, 2005), https://quoteinvestigator.com/2015/01/11/has-gold/#note-10389-1 (explaining the origin and uses of the phrase).
32. See McCue v. City of New York (In re World Trade Ctr. Disaster Site, Litig.), 521 F.3d 169 (2d Cir. 2008) (holding “the Stafford Act protects a right—the right of federal agencies to make discretionary decisions where engaged in disaster relief efforts without fear of judicial second-guessing—that is a ‘particular value of a high order . . . .’” (quoting Will v. Hallock, 546 U.S. 345 (2006)).
33. Nonliability of Federal Government, 42 U.S.C. § 5148 (2018); 28 U.S.C. § 2680(a).
34. 28 U.S.C. § 2679(d)(2); see also 10 U.S.C. 1089.
35. Berkovitz v. United States, 486 U.S. 531, 536 (1988); St. Tammany Parish v. FEMA, 556 F.3d 307 (5th Cir. 2009) (holding ‘discretionary function’ has the same meaning under the Stafford Act as it does under the FTCA).
41. Spider-Man 2 (Columbia Pictures 2004).
42. COVID-19: Data, NYC Health, https://www1.nyc.gov/site/doh/covid/covid-19-data.page (last visited Apr. 29, 2020).
43. Coronavirus Aid, Relief, and Economic Security Act of 2020, Pub. L. No. 116-136, (2020); see also H.R. 748, 116th Congress (2020).
44. See Coronavirus, supra note 6; see also infra notes 45-46.
45. N.Y. Exec. Order No. 202.10 (Mar. 23, 2020), https://www.governor.ny.gov/news/no-20210-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency.
46. Conn. Exec. Order No. 202.10 (Mar. 10, 2020), https://portal.ct.gov/-/media/Office-of-the-Governor/Executive-Orders/Lamont-Executive-Orders/Executive-Order-No-7U.pdf; Ill. Exec. Order No. 7U (Apr. 1, 2020), https://www2.illinois.gov/Pages/Executive-Orders/ExecutiveOrder2020-19.aspx; Mass. Acts 2020, c. 64 (Apr. 17, 2020), https://malegislature.gov/Laws/SessionLaws/Acts/2020/Chapter64; Mich. Exec. Order No. 2020-30 (Mar. 29, 2020), https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-523481—,00.html; and N.J. P.L. 2020, c. 18 (Apr. 14, 2020), https://www.njleg.state.nj.us/2020/Bills/AL20/18_.PDF.
47. Seinfeld: The Bizaro Jerry (NBC Network Oct. 3, 1996). This show is the third episode of the eighth season. In this episode, after aiding an employee and slipping into the role of co-worker, Kramer is fired from a job he never had. Id.
48. See Kelley v. Southern Pac. Co., 419 U.S. 318 (1974).
50. Restatement (Third) of Agency § 7.03 cmt. d(2) (2006) [hereinafter Restatement].
52. U.S. Dep’t of Army, Reg. 351-3, Professional Education and Training Programs of the Army Medical Department para. 4-7 (15 Oct. 2007).
53. Id. para. 4-7b(3)(b).
54. See 28 U.S.C. §§ 2671, 2674, and 2679.
55. See Reg. 27-40, supra note 24, para. 4-4.
56. See id.
57. See Berkovitz v. United States, 486 U.S. 531 (1988).
58. See 42 U.S.C. § 5148; 28 U.S.C. § 2680(a).
59. See N.Y. Exec. Order, supra note 45.
60. Time For Commencing Action Against United States, 28 U.S.C. § 2401 (2011) (stating that a prerequisite to filing a lawsuit is filing a claim with the federal agency within two years of the incident); 28 U.S.C. § 2475 (1966) (requiring a claimant to allow the agency six months to make a final disposition before filing a claim). Therefore, two-and-a-half years can easily pass from the incident to initial filing of a lawsuit.
61. See 28 U.S.C. §§ 2671, 2674, 2679.
62. U.S. Dep’t of Army, Reg. 385-10, The Army Safety Program para. 3-8a(6) (24 Feb. 2017).
63. Supra note 61.
64. See Berkovitz v. United States, 486 U.S. 531, 536 (1988);
65. See 42 U.S.C. § 5148; supra note 45.
66. See supra note 61; AR 27-40, supra note 24 para. 4-4; 42 U.S.C. § 5148.
67. See Kelley v. Southern Pac. Co., 419 U.S. 318 (1974).
68. See Restatement, supra note 50 § 7.03 cmt. d(2).