XIV.B. Federal Government Liability | Jonathan Zittrain | July 16, 2011


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XIV.B. Federal Government Liability

by Jonathan Zittrain Show/Hide

As you may have noticed from other classes or prior knowledge, the federal government is often bound by very different rules than state and local governments. Tort liability is no different.

Varig highlights the “discretionary function” exception of the FTCA: it examines whether a decision to implement fundamentally limited safety checks falls under discretionary regulatory authority, and therefore exempted from tort action.

Cestonaro illustrates a two-part framework to determine whether a particular activity falls within the “discretionary function” exception.


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  1. 1 [This resource no longer exists on H2O because its owner deleted it.]
  2. 2 Show/Hide More Cestonaro v. United States--"The Questionable Park Policy Case"
    Original Creator: Jonathan Zittrain

    Plaintiff and her husband were returning to their car which was parked in an unofficial parking lot. The couple were confronted by two two armed gun men, who shot and killed plaintiff’s husband. The National Park Service (NPS) owned the lot in which the incident occurred. The plaintiff sued the NPS for failing to adequately light and police the lot.

    The NPS argued that their non-maintenance of the lot was a conscious choice in furtherance of a general aesthetic goal. Should courts treat any coherent, agency objective as a part of policy? Also, should courts mostly defer to an agency’s stated policy goals when assessing the “discretionary activity” exception?


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September 21, 2013

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