A tort claims act is the statute that lets you sue the government for injuries or property damage caused by its employees. Without one, sovereign immunity would block the lawsuit entirely. The Federal Tort Claims Act (FTCA) handles claims against the United States, and nearly every state has its own version for state and local governments. Both work the same way at the core: you file a written claim with the responsible agency first, wait out an administrative review, and only then can you go to court. Miss a deadline or skip a step, and the claim is gone no matter how strong it was.
What Sovereign Immunity Does and Why the Waiver Is Limited
Sovereign immunity is the rule that the government cannot be sued unless it agrees to be sued. The FTCA, codified primarily at 28 U.S.C. §§ 1346(b) and 2671–2680, is that agreement at the federal level. It gives federal district courts jurisdiction over claims for personal injury, death, or property damage caused by the wrongful act of a federal employee acting within the scope of their job.1Office of the Law Revision Counsel. 28 USC 1346 – United States as Defendant
The waiver is real but conditional. The government consents to be treated like a private person under the same circumstances, subject to a long list of exceptions, mandatory procedures, and limits on damages. State tort claims acts follow the same logic with their own variations.
Which Claims Qualify
The core requirement is that the injury result from a government employee’s negligent or wrongful act committed while performing official duties. A postal carrier who causes a collision while delivering mail creates a valid claim. The same carrier who causes an accident while running a personal errand on a day off generally does not.
Common qualifying claims include vehicle accidents involving government vehicles, slip-and-fall injuries on poorly maintained public property, medical malpractice at a federal hospital, and property damage from negligent construction or maintenance by government crews.
The Independent Contractor Problem
The FTCA’s definition of “federal agency” explicitly excludes contractors with the United States.2Office of the Law Revision Counsel. 28 USC 2671 – Definitions The federal government outsources enormous amounts of work, from base maintenance to healthcare at community clinics. If the person who harmed you was a contractor rather than a direct employee, the FTCA probably does not apply. Courts look at whether the government controlled the day-to-day details of the work. Broad project oversight is not enough; the government must have directed the physical performance of the task.
Suing an Employee Individually
When someone sues a federal employee personally for an on-the-job act, the Attorney General can certify that the employee was acting within the scope of their position. That certification converts the case into an FTCA action against the United States, replacing the individual as the defendant.3Office of the Law Revision Counsel. 28 USC 2679 – Exclusiveness of Remedy If the Attorney General declines, the employee can ask the court to make that finding.
Claims the Government Blocks Outright
Several categories of claims are off-limits even when a federal employee acting on the job caused the harm.
Discretionary Function
The broadest exception shields decisions involving judgment or choice at the planning or policy level. If an agency decides how to allocate its road maintenance budget and a pothole goes unfixed, you generally cannot sue over that budget decision.4Office of the Law Revision Counsel. 28 USC 2680 – Exceptions The exception covers both the exercise of discretion and the failure to exercise it, and it applies even if the official abused that discretion. The line between a protected policy choice and unprotected operational negligence is where most of these cases are won or lost.
Intentional Torts
The FTCA generally bars claims for assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, and interference with contract rights.5Office of the Law Revision Counsel. 28 USC 2680 – Exceptions There is one important carve-out: federal law enforcement officers can be sued under the FTCA for assault, battery, false imprisonment, false arrest, abuse of process, and malicious prosecution.
Other Blocked Categories
Additional exceptions can derail a claim if you are unaware of them:
- Any injury that occurs in a foreign country.
- Claims arising from combat operations during wartime.
- Losses from misdelivered or lost mail.
- Disputes over the assessment or collection of taxes and customs duties.
- Harm caused by a federally imposed quarantine.
- Claims based on Treasury operations or monetary policy regulation.
A single claim can be barred on more than one of these grounds.5Office of the Law Revision Counsel. 28 USC 2680 – Exceptions
Filing Deadlines
This is where tort claims against the government are most ruthless. A single day late is fatal.
Under the FTCA, you must file a written administrative claim with the responsible federal agency within two years of the date the claim accrues. A separate six-month clock starts when the agency mails a final denial: you must file suit in federal court within those six months or lose the right to sue forever.6Office of the Law Revision Counsel. 28 USC 2401 – Time for Commencing Action Against United States Courts have almost no flexibility to extend these deadlines. The two-year period generally runs from the date you knew or should have known about the injury, which gives some room for conditions that are not immediately apparent, like medical malpractice that surfaces months later.
State deadlines for the initial notice of claim are often much shorter. Many states require notice within 90 to 180 days of the incident, and some set the window as short as 30 or 60 days for certain claim types. These notice-of-claim deadlines are separate from the state’s general statute of limitations and are frequently the reason otherwise valid claims never reach a courtroom.
How to File the Administrative Claim
Before you can sue under the FTCA, you must submit a claim directly to the federal agency whose employee caused the harm and give that agency a chance to resolve it.7Office of the Law Revision Counsel. 28 USC 2675 – Disposition by Federal Agency as Prerequisite; Evidence Skipping this step is fatal. Courts dismiss FTCA cases that go straight to litigation without exhausting the administrative process.
What the Claim Must Contain
A valid federal claim requires either a completed Standard Form 95 (SF-95) or another written notification that describes the incident and includes a demand for a specific dollar amount.8eCFR. 28 CFR 14.2 – Administrative Claim; When Presented That dollar figure is called a “sum certain.” If you do not include a specific number, the agency can reject the claim as improperly filed, which means the administrative clock never started running. The SF-95 also calls for a factual description of the incident, the nature of your injuries, witness information, and documentation of your losses.
Send the completed form by certified mail with return receipt requested. You need proof of when the agency received it, because that receipt date starts the administrative review clock.
Filing With the Wrong Agency
If you accidentally send your claim to the wrong federal department, regulations require the receiving agency to transfer it to the correct one or return it to you.9eCFR. Tort Claims Against the Government But your claim is not “presented” to the correct agency until that agency actually receives it. If the transfer eats up months and pushes you past the two-year deadline, the claim is barred. When in doubt, file with every agency that could plausibly be involved.
What Happens After You File
Once the agency receives a properly filed claim, a six-month review period begins. During that window, the agency investigates, evaluates your damages, and decides whether to offer a settlement or deny the claim in writing.
If the agency offers a settlement you accept, the matter ends. If the agency issues a written denial sent by certified or registered mail, the six-month countdown to file suit begins immediately.6Office of the Law Revision Counsel. 28 USC 2401 – Time for Commencing Action Against United States
There is a third possibility. If six months pass with no decision, you can treat the silence as a denial and go to court.7Office of the Law Revision Counsel. 28 USC 2675 – Disposition by Federal Agency as Prerequisite; Evidence You are not required to do so, and some claimants wait longer to see if the agency responds. Once you elect to treat the silence as a denial and file, the six-month lawsuit deadline runs the same way it would after a written denial.
Going to Federal Court
FTCA litigation differs from a typical personal injury case in two ways that shape strategy.
First, there is no jury. FTCA cases are tried by a judge alone.10Office of the Law Revision Counsel. 28 USC 2402 – Jury Trial in Actions Against United States Your case has to persuade one federal judge on both liability and damages. Detailed evidence and clear legal arguments carry more weight than emotional appeals.
Second, venue is limited. You must file either in the district where you live or in the district where the incident occurred.11Office of the Law Revision Counsel. 28 USC 1402 – United States as Defendant You cannot shop for a favorable court elsewhere.
The court applies the substantive law of the state where the incident occurred. Standard of care, comparative fault rules, and damage calculations all follow state law, even though the case is in federal court against the federal government.1Office of the Law Revision Counsel. 28 USC 1346 – United States as Defendant
Limits on What You Can Recover
Winning an FTCA case does not mean you collect what you would from a private defendant.
No Punitive Damages and No Pre-Judgment Interest
The statute explicitly bars both punitive damages and interest accrued before judgment.12Office of the Law Revision Counsel. 28 USC 2674 – Liability of United States You can recover only actual compensatory losses: medical bills, lost income, property repair costs, and pain and suffering to the extent state law allows. The pre-judgment interest bar is particularly painful in cases that take years, because the damages are frozen at face value with no adjustment for the time the government held onto the money.
Attorney Fee Caps
Attorney fees are capped at 20% of any amount recovered through administrative settlement and 25% of any judgment or settlement obtained after suit is filed.13Office of the Law Revision Counsel. 28 USC 2678 – Attorney Fees; Penalty Attorneys who charge more face criminal penalties. The caps protect claimants from losing most of their recovery to legal fees, but they can also make it harder to find an attorney willing to take a complex, low-value claim.
No Federal Dollar Cap
The FTCA itself does not impose a maximum dollar cap on compensatory damages. If a judge finds $5 million in actual losses, the government pays $5 million. State tort claims acts, by contrast, almost universally cap total recovery. Some states limit per-person recovery to as little as $100,000 for certain claim types, while others allow up to $1 million or more per person and set separate caps for all claims arising from one incident. A few cap only non-economic damages while leaving economic damages uncapped; others cap all compensatory damages together. Punitive damages are almost never available against state or local governments. A severe injury claim worth millions against a private party might be capped at a few hundred thousand dollars when the defendant is a state or local entity.
How State Tort Claims Acts Differ From the Federal Model
Every state has its own version, and the details diverge in ways that trip up claimants who assume federal rules apply everywhere.
The biggest differences are in the notice-of-claim deadlines. Where the FTCA gives you two years, many states compress that window to 90 or 180 days. Some require the notice to be filed with a specific official by name, and serving the wrong person can void the entire claim. State acts also vary in which employees and agencies are covered, which activities are immune, and whether local governments such as cities and counties share the same protections as the state itself.
State damage caps add another layer of variation. Some states set a single cap covering all damages, while others break out separate limits for property damage, medical expenses, and other losses. A handful of states have inflation-adjustment mechanisms that raise their caps periodically. If your claim involves a state or local government entity, identifying the current cap and the exact notice deadline for that jurisdiction is one of the first things to do.