32 CFR 842.111 - Applicable law.
(a) Extent of liability. The following rules apply to determine the extent of liability of a claim.
(1) Claims arising in the United States. The law of the place where the act or omission occurs governs liability. The local law on dangerous instrumentalities, assumption of risk, res ipsa loquitur, last clear chance, discovered peril, and comparative and contributory negligence are considered. Absolute liability is never imposed.
(2) Claims arising in foreign countries. The general principles of tort law common to the majority of American jurisdictions as evidenced by Federal case law and standard legal publications, control liability, except that absolute liability is not imposed. However, the law of the place where the act or omission occurs governs the effect of the claimant's comparative or contributory negligence. Where applicable, rules of the road and similar locally prescribed standards of care are followed to determine fault.
ANG personnel ordered to foreign countries proceed under title 10, U.S.C.; consequently, the National Guard Claims Act would not apply. However, there may be cases where ANG personnel are inadvertently in a foreign country while on title 32, U.S.C. orders.
(b) Measure of damages. The following rules apply to the measurement of damages.
(1) Normally, the law of the place where the act or omission occurs is applied. In claims arising in foreign countries, the measure of damages is determined in accordance with general principles of American tort law.
(2) Damages in suits against private persons are apportioned if local law applies comparative negligence.
(3) Proceeds from private insurance policies are not deducted except to the extent the policy was paid by the Government or is allowed by local law.
(4) Compensation and benefits from any U.S. Government associated source are deducted. However, sick and annual leave payments are deducted only if allowed by local law.
(5) The following are not payable:
(i) Punitive damages.
(ii) Cost of medical or hospital services furnished at U.S. expense.
(iii) Cost of burial expenses paid by the United States, any territory or possession, any state, or the District of Columbia.
(c) Settlement by insurer or joint tort-feasor. When settlement is made by an insurer or joint tort-feasor and an additional award is warranted, an award is made if:
(1) The United States is not protected by the release executed by the claimant.
(2) The total amount received from such source is first deducted.