Cardozo Law Review
Abstract
When a pedestrian trips and falls on a defective sidewalk, liability usually turns on negligence. But when the property surrounding the sidewalk belongs to the federal government, tort liability often vanishes altogether. This result is just one of the many shortcomings of the Federal Tort Claims Act (FTCA) and one of its most controversial and heavily litigated provisions: the discretionary function exception (“DFE”). This Note explores the current judicial interpretations of the FTCA and DFE, which often work in conjunction with state laws and federal regulations. Despite the central public policy rationale and congressional intent surrounding the FTCA and its intended limitations on federal sovereign immunity, courts have routinely misapplied the DFE over the last few decades and increasingly allowed the exception to swallow the rule.
This Note examines recent district court and circuit court decisions pertaining to the DFE’s applicability to sidewalk torts, which are largely governed by state law. This Note argues that courts must take a narrower view of the DFE in order to end the rapid erosion of the FTCA’s waiver of sovereign immunity—especially for common garden-variety torts like negligent sidewalk maintenance, which the FTCA and DFE were never intended to shield the federal government from. Lastly, this Note explores several statutory and structural reforms to ensure that the federal government is rightfully held to the same sidewalk safety obligations as any other landowner.
Disciplines
Disability Law | First Amendment | State and Local Government Law | Torts
Recommended Citation
Alexander Sitnikov,
From Waiver to Shield: The Routine Misapplication of the Federal Tort Claims Act’s Discretionary Function Exception,
47
Cardozo L. Rev.
1435
(2026).
Available at:
https://larc.cardozo.yu.edu/clr/vol47/iss4/20
Included in
Disability Law Commons, First Amendment Commons, State and Local Government Law Commons, Torts Commons