The Federal Government enacted the Federal Tort Claims Act, which for the first time permitted lawsuits against the Federal Government for negligence. The statute provides for many exceptions, one of which is combatant activities of military or naval forces, in a time of war. In the 1950's, Lt. Rudolph Feres, an active duty soldier was killed in a fire in his barracks at Camp Pine, N.Y. due to a defective heating equipment and substandard fire safety controls. The Supreme Court applied the military personnel exception and dismissed his case. This became known as the Feres Doctrine as it expanded the scope of the military exception to noncombatant activities. It essentially held that the government was exempt from prosecution, not only during time of war, or for combatant activities, but also, during the entire service period of a military member. Courts have routinely applied the Feres Doctrine dismissing cases even involving service members who are victims of negligence while on furlough and acting completely outside the scope of military capacity.
In Harris v. KBR, Green Beret Staff Sgt. Ryan Maseth died in Iraq due to a faulty electrical equipment causing him to be electrocuted in the shower. The faulty electrical work was done by private military contractor Kellogg, Brown and Root, Inc. The Feres doctrine precluded government liability even though there was evidence that it knew of the electrical problem and there were other incidents of injuries.
This year the Eastern District pushed back on the Feres Doctrine in Kloner v. U.S., where a rabbi contracted by the Coast Guard to provide Jewish worship services fell down the staircase as he walked to the stage at a retirement ceremony, causing severe injuries. Rabbi Kloner happened to be a retired admiral in the New York Naval Militia and the government sought to dismiss based on the Feres doctrine. The Court held that he was not a true service member, but a rabbi contracted by the military, and was injured not his capacity as a military officer.
Weisfuse & Weisfuse, LLP handles Federal Tort Claims Act cases. Contact us at (212) 983-3000 for a free consultation.