- According to Cornell University Law School, states create tort law "through judges (common law) and by legislatures (statutory law)." Most state courts reference the "Restatement of Torts (Second Edition)", a publication prepared by the American Law Institute (ALI), which includes 17 Appendix volumes. Restatements in general cover 15 areas of law including Torts, Contracts, Property, Conflict of Laws, Foreign Relations Law and Products Liability. However, as Findlaw.com states, "There is no general federal tort law."
- FindLaw.com states that to sue in federal court one of three conditions must be met: The plaintiff must either have a claim "against the Unites States (e.g. a federal agency), a claim based on federal statute (e.g. patent infringement claims) or a state law claim for which diversity jurisdiction applies." Diversity jurisdiction is appropriate if the litigants are from different states or if one litigant is a U.S. citizen and the other isn't. However, only cases involving potential damages of $75,000 or more can be filed in federal court; otherwise, the case must be heard in state court.
- Passed in 1946, the Federal Tort Claims Act (FTCA) denies immunity to the federal government regarding the capacity of private citizens to initiate federal tort claims, although the act does not specifically define what torts are. It also limits the circumstances under which one can sue the government. Per 28 U.S.C. S 1346(b), the FTCA only applies if the act can be attributed to a private person; in other words, it does not apply to conduct that is "uniquely governmental," i.e. "incapable of performance by a private individual."
- The FTCA relieves the federal government of liability (in 28 U.S.C. S 2680h) when "any of its agents commits the torts of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit or interference with contract rights." However, if a law enforcement officer commits assault, battery, false imprisonment, false arrest, abuse of process or malicious prosecution, then the liability lies with the government. The government will not represent law enforcement if the claim includes misrepresentation, deceit, libel, slander or interference with a contract.
- In 1988, Congress enacted an amendment to the FTCA. The amendment, referred to as the Federal Employees Liability Reform and Tort Compensation Act, clarifies the defendant employees' personal liability. Section 28 U.S.C. S 2679(d)(1) provides that if the Attorney General certifies that the employee acted "within the scope of his office or employment at the time of the incident out of which the claim arose ... the United States shall be substituted as the party defendant."
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