Military Injury Claims: Issues Related to Suing the Government or Other Responsible Parties For Injuries Sustained During Military Service
September 8, 2023
By: Evan Katin-Borland, Partner
While an active duty service member cannot usually sue the United
States government for a personal injury they have suffered in the line of duty, he or
she may have a legal claim against a third party such as a military contractor,
product manufacturer, or even another part of the United States government (such as the FAA) who
caused or contributed to his or her injury.
Over the last decade, many personal injury and wrongful death cases have been brought by military members and their families against military contractors for injuries and death in combat zones and during training exercises.
A vast and complicated web of laws and regulations impacts whether a service member has a claim for an injury suffered during military service, who they can sue, and whether that claim will succeed.
U.S. Soldier secures chains while conducting vehicle recovery training exercise
Kreindler Attorneys Overcome Two Arguments by Defense Contractor Following West Point Injury
While representing a West Point cadet who was rendered paraplegic while driving a utility terrain vehicle during a training exercise, Kreindler lawyers overcome two attempts by the defendant to shield itself from responsibility. First, they moved for dismissal claiming that the plaintiff’s claims raised a “political question” that could not be decided by the courts. Next, they argued that they were immune from the lawsuit under the “government contractor defense” because the military had approved the design of the vehicle in which the cadet was injured. Both defenses were defeated and after 5 years of litigation, Kreindler was able to successfully resolve the claim. Read: Kreindler Settles Case Involving West Point Cadet Paralyzed in UTV Accident
The array of immunity theories and statutes that may come into play following a military death or injury include:
Normally, the doctrine of sovereign immunity, precludes any
suit against a government by individuals who are injured as a result of the
actions of government employees. In the
United States, however, the Federal Tort Claims Act allows people to sue the
United States for any actions of a government employee, including the military,
that resulted in injury if a private person or company could be sued for the
same thing.
The Feres Doctrine
The Feres Doctrine, created by the Supreme Court in a case
called Feres v. United States in 1950, however, states that members of the
military cannot bring claims against the United States for injuries they
received on active duty.
Parties Other than the Military Potentially Liable
UH-60 Black Hawk joint training exercise between the New Jersey Army and Air National Guard and New Jersey State Police
That does not mean, however, that a service member cannot
have a claim against a party other than the military who caused or contributed
to their injuries. Private entities like
government contractors and even other government entities can all be sued for
injuries to a military service member.
For instance, if you were a military service member injured
in an aircraft accident, you might have a claim against the Federal Aviation
Administration for providing negligent air traffic control services, a claim
against the manufacturer of the aircraft or one of its component parts for
providing a defective product, or a claim against a private contractor hired by
the military to provide maintenance services for the aircraft in question.
Potentially liable parties that a service member can sue
include:
Other Government Entities – e.g., the Federal
Aviation Administration, or FAA (for air traffic control issues)
Product and Component Manufacturers – manufacturers
of any product used by the military from vehicles to air conditioners who have
designed or manufactured a defective product, or a defective component part of
any such product, that causes injury
Private Contractors – a contractor who provides
negligent services, including construction, maintenances, training or any other
service.
Defenses Available to Government Contractors
Even though
private contractors are not protected by the Feres Doctrine, there a number of
other defenses that they can assert.
A product manufacturer is not responsible for injuries caused by defects in equipment when
(1) the United States approved reasonably precise specifications for the equipment; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about dangers in the use of the equipment known to the supplier but not to the United States.
Discretionary Function Exception
A private contractor is not responsible when deciding the case would require second-guessing the discretionary decisions of the government. For instance, a case that requires a court to second-guess a military officer’s decision to conduct training a particular way could be dismissed.
Political Question Doctrine
A private contractor is not responsible for injuries they caused when resolving the case would require a Court to second-guess a decision or decide an issue that is something Congress has decided is uniquely the province of one of the branches of government. For instance, if the lawsuit turns on a decision of military strategy that is the subject of political debate, it can create a political question.
Combatant Activities Exception
Private contractors participating in combat activities under the direction of the US military cannot be held responsible for injuries that result from their actions. The idea is the combat activities are inherently dangerous and the Feres Doctrine should extend to contractors engaged in combat activities.
State Secrets Doctrine/State Secrets Privilege
A case against a private contractor can be dismissed when the United States determines that deciding the case would require revealing sensitive state secrets that would harm national security or foreign relations.
Given all the government and private entities potentially responsible for the injuries of an active-duty member of the military and the unique defenses available to private contractors, it is important to find an experienced attorney who has handled claims involving injuries to members of the military before.
Evan Katin-Borland joined Kreindler in January 2012. Named Partner in 2023, Evan currently works on a variety of cases in state and federal courts with a focus on complex products liability cases arising from aviation accidents and other transportation accidents. He has played an active role in litigation arising from numerous military, general aviation, commercial aviation and train accidents. Evan was one of the lead lawyers in ‘Lofgren v. Polaris Industries’ and is also heavily involved in the firm’s representation of former NFL players and their families in claims through the NFL Concussion Settlement Program.
Read More
A vast and complicated web of laws and regulations impacts whether a service member has a claim for an injury suffered during military service, who they can sue, and whether that claim will succeed.
