[Title 32 CFR 750.23]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 32 - NATIONAL DEFENSE]
[Subtitle A - Department of Defense (Continued)]
[Chapter Vi - DEPARTMENT OF THE NAVY]
[Subchapter E - CLAIMS]
[Part 750 - GENERAL CLAIMS REGULATIONS]
[Subpart B - Federal Tort Claims Act]
[Sec. 750.23 - Definitions.]
[From the U.S. Government Printing Office]


32NATIONAL DEFENSE52002-07-012002-07-01false750.23Sec. 750.23NATIONAL DEFENSEDepartment of Defense (Continued)DEPARTMENT OF THE NAVYCLAIMSGENERAL CLAIMS REGULATIONSFederal Tort Claims Act
Sec. 750.23  Definitions.

    (a) Negligent conduct. Generally, negligence is the failure to 
exercise that degree of care, skill, or diligence a reasonable person 
would exercise under similar circumstances. Negligent conduct can result 
from either an act or a failure to act. The law of the place where the 
conduct occurred will determine whether a cause of action lies against 
the Government. 28 U.S.C. 1346(b) and 2674.
    (b) Intentional torts. Although any employee who commits an 
intentional tort is normally considered to be acting outside the scope 
of employment, the FTCA does allow claimants to seek compensation for 
injuries arising out of the intentional torts of assault, battery, false 
imprisonment, false arrest, abuse of process, and malicious prosecution, 
if committed by a Federal investigative or law enforcement officer. An 
``investigative or law enforcement officer'' is any officer of the 
United States empowered by law to execute searches, to seize evidence, 
or to make arrests for violations of Federal law. 28 U.S.C. 2680(h).
    (c) Government employees--(1) General. ``Employee of the 
Government,'' defined at 28 U.S.C. 2671, includes officers or employees 
of any Federal agency, members of the U.S. military or naval forces, and 
persons acting on behalf of a Federal agency in an official capacity.
    (2) Government contractors. Government (also referred to as 
independent) contractors, are those individuals or businesses who enter 
into contracts with the United States to provide goods or services. 
Because the definition of ``Federal agency,'' found at 28 U.S.C. 2671, 
specifically excludes ``any contractor with the United States,'' the 
United States is generally not liable for the negligence of Government 
contractors. There are, however, three limited exceptions to the general 
rule, under which a cause of action against the United States has been 
found to exist in some jurisdictions. They are:
    (i) Where the thing or service contracted for is deemed to be an 
``inherently dangerous activity'';
    (ii) where a nondelegable duty in the employer has been created by 
law; or,
    (iii) where the employer retains control over certain aspects of the 
contract and fails to discharge that control in a reasonable manner.
    (3) Employees of nonappropriated-fund activities. Nonappropriated-
fund activities are entities established and operated for the benefit of 
military members and their dependents, and have been judicially 
determined to be ``arms'' of the Federal government. These entities 
operate from self-generated funds, rather than from funds appropriated 
by Congress. Examples include Navy and Marine Corps Exchanges, officer 
or enlisted clubs, and recreational services activities. A claim arising 
out of the act or omission of an employee of a nonappropriated-fund 
activity not located in a foreign country, acting within the scope of 
employment, is an act or omission committed by a Federal employee and 
will be handled in accordance with the FTCA.
    (d) Scope of employment. ``Scope of employment'' is defined by the 
law of respondeat superior (master and servant) of the place where the 
act or omission occurred. Although 28 U.S.C. 2671 states that acting 
within the scope of employment means acting in the line of duty, the 
converse is not always true. For administrative purposes, a Government 
employee may be found ``in the line of duty,'' yet not meet the criteria 
for a finding of ``within the scope of employment'' under the law of the 
place where the act or omission occurred.