Abraham v. United States, 71-2257.

• Decision Date: 07 September 1972
• Docket Number: No. 71-2257.,71-2257.
• Citation: 465 F.2d 881
• Parties: Mrs. Lennell Wells ABRAHAM, wife of Bernard Abraham, now deceased, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

465 F.2d 881 (1972)

Mrs. Lennell Wells ABRAHAM, wife of Bernard Abraham, now deceased, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 71-2257.

United States Court of Appeals, Fifth Circuit.

September 7, 1972.

E. P. Lobrano, Jr., of Satterfield, Shell, Williams & Buford, Jackson, Miss., James H. Morrison, New Orleans, La., Ronald A. Curet, Hammond, La., for plaintiffs-appellants.

Robert E. Hauberg, U. S. Atty., Joseph E. Brown, Jr., Asst. U. S. Atty., Jackson, Miss., Alan S. Rosenthal, Robert E. Kopp, L. Patrick Gray, III, Dept. of Justice, Washington, D. C., for defendant-appellee.

Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.

COLEMAN, Circuit Judge:

This is a case in which the widow and children of Bernard Abraham, deceased, sued the United States under the Federal Tort Claims Act. The complaint charged that a United States Air Force plane caused a severe sonic boom over the City of McComb, Mississippi, on February 16, 1968, which, in turn, caused the mill and office of the McComb Milling Company to explode and burn, killing Mr. Abraham.

The district court granted the government's motion for summary judgment. It held the claim to be barred by the "discretionary function" exception to the Federal Tort Claims Act, 28 U.S.C., § 2680(a), which provides that the Act shall not apply to:

"Any claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." (Emphasis supplied).

Appellants in this Court urged recovery on a theory of strict liability for the consequences of ultrahazardous activities carried out by the government and, secondly, that the actual operation of government aircraft can give rise to an actionable wrong where there has been wrongful or "operational mismanagement" on the part of the pilot or his superiors.

After this appeal reached us, the Supreme Court decided the sonic boom case in Laird v. Nelms, 406 U.S. 797, 92 S.Ct. 1899, 32 L.Ed.2d 499 (1972).¹ The Court unequivocally held that the Federal Tort Claims Act does not authorize claims, suits, or liability based on strict liability for ultrahazardous activity.

Therefore, the claim as to "operational mismanagement" is all that remains of the present appeal.

To support its motion for summary judgment the government offered affidavits showing that the operational training flights of the supersonic aircraft, including the flight in question, were authorized and conducted in accordance with the direction of General Bruce Holloway, Commander of the Strategic Air Command; that in the exercise of the authority and discretion vested in General Holloway and his superiors these supersonic flights are authorized as essential to the security of the United States and are flown under controls prescribing altitudes, routes, and speeds; that the route flown by the aircraft was plotted at headquarters, Ninth Strategic Reconnaissance Wing, Beale Air Force Base, California, in accordance with guidelines contained in directives of higher headquarters; that the pilot of the craft was briefed as to the routes, altitudes, and speeds to fly and was given no authority to deviate from this flight path except in an emergency.

The pilot of the aircraft in question likewise swore that the flight was made in strict accordance with the instructions given him as to route, altitude, and speed, as well as in compliance with Air Force Regulation 55-34 entitled "Reducing Flight Disturbances That Cause Adverse Public Reactions".

The affidavit of Colonel Jack Warfield, Jr., filed on behalf of appellants, disclosed that he was totally familiar with aircraft sonic booms, and specifically with the SR-71 (the type of aircraft flying the mission over McComb, Mississippi). The affiant stated that the Air Force regulations in question "impose strenuous restrictions at the operational level of responsibility as to the duty of a pilot not to generate sonic booms in populace areas". Based on his personal knowledge, education, background, experience, and expertise on the subject, including personal knowledge of both the planning and operational...