In recent decision, the Sixth Circuit Court of Appeals affirmed a district court’s dismissal of a plaintiff’s claim against the United States for failing to assert the claim within two years. In Hertz v. United States of America, the plaintiff’s husband was killed in an aircraft accident. Within a month of the accident, an NTSB investigator informed the plaintiff that the Board believed that the accident resulted from negligence by air traffic control. However, plaintiff’s attorney did not assert a claim against the United States until more than two years after the accident. The United States denied the plaintiff’s claim as untimely and the plaintiff subsequently sued the government. The United States moved to dismiss the plaintiff’s claim and the district court granted the motion. The plaintiff then appealed the dismissal to the Sixth Circuit Court of Appeals.
On appeal, the Court observed that 28 U.S.C. § 2401(b) provides that “[a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues[.]” The Court also noted that a tort claim generally accrues at the time of the plaintiff’s injury. With respect to aircraft accidents, the Court stated that they “by their nature typically involve negligence somewhere in the causal chain; and the mere fact of the event is thus typically enough to put the plaintiff on inquiry notice of his claim.”
Finally, the Court concluded that the plaintiff “not only should have been able to determine in the two-year period whether to file a claim, but that she in fact made that determination, when the NTSB investigator told her, less than a month after the crash, that ‘the NTSB believed that the cause of the accident was related to air traffic controller negligence.'” Unfortunately, the plaintiff’s attorney simply waited too long to assert the claim.