Aretz v. U.S.

• Decision Date: 15 October 1979
• Docket Number: No. 78-3615,78-3615
• Citation: 604 F.2d 417
• Parties: Eleanore Higginbotham ARETZ, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant. Thomas F. ARETZ, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 417

604 F.2d 417

Eleanore Higginbotham ARETZ, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.

Thomas F. ARETZ, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.

No. 78-3615.

United States Court of Appeals, Fifth Circuit.

Oct. 15, 1979.

Edmund A. Booth, Jr., Asst. U. S. Atty., Augusta, Ga., Neil R. Peterson, Atty., Sp. Litigation, James P. Klapps, Atty., Dept. of Justice Civ. Div., Torts Section, Washington, D. C., for the U.S.

Frank P. Brannen, Perry Brannen, Jr., Savannah, Ga., for plaintiff-appellee.

James H. Ammerman, Marshall, Tex., for intervenors Jean Marie Thomas et al.

Appeal from the United States District Court for the Southern District of Georgia.

Before TUTTLE, GODBOLD and RUBIN, Circuit Judges.

TUTTLE, Circuit Judge:

On February 3, 1971, fire broke out in Building M-132 of the Thiokol Chemical Corporation's Woodbine, Georgia, plant, where Thiokol was manufacturing flares used for nighttime illumination in the Vietnam War. The fire spread quickly and reached a room where loose, intensely flammable, material used in the flares was stored. Building M-132 exploded. Fifty employees were injured, twenty-nine were killed.

Thiokol was manufacturing the flares under a contract with the United States Army according to Army specifications and certain Army manufacturing standards. These included a system for classifying materials produced in arms manufacture according to their hazardousness. The illuminant material which caused the explosion was classified only as a fire hazard, not as an explosive. Deciding that this classification inadequately reflected the danger of an explosion, the Army raised the classification of illuminant from fire hazard to explosive three months before the explosion at Woodbine. Inexplicably, this change was never communicated to the Army procurement officials who supervised the Thiokol contract or to Thiokol. Instead, the directive ordering the change appears to have remained in a desk drawer until after the accident.

This case was brought by one of those injured and his wife. It is the test case of twenty-five brought against the United States ¹ under the Federal Tort Claims Act ² alleging that the negligence of Army procurement employees proximately caused the catastrophe at Woodbine and seeking aggregate damages of $717,526,391. The consolidated trial was bifurcated; the district court first heard evidence on liability alone in all twenty-five cases. The court found that the illuminant used in the manufacture of trip flares at Woodbine was wrongly classified and that employees of the Army were negligent in failing to communicate the Army's change in classification to Thiokol. This negligence, the district court held, was a proximate cause of the explosion. The present case then proceeded on the issue of damages and the court granted final judgment for the plaintiffs.

The United States appeals. We have expedited the appeal and granted leave to the plaintiffs in the cases still pending to intervene as appellees. We are presented with the government's contentions that there is no theory of negligence in this case which is consistent with limitations which the Tort Claims Act places on the United States' consent to suit for the torts of government employees, and that the district court was clearly erroneous in finding that the acts or omissions of government employees were a proximate cause of the explosion.

I.

A

The fire which caused the explosion at Woodbine traveled along the flare assembly line and fed on several materials used in the flares. Since causation is one issue before us, an understanding of the flare manufacturing process is relevant.

Both production of the materials used in the flares and assembly of the flares took place in Building M-132. The illuminant composition, a compound of sodium nitrate and brilliant-burning magnesium with a binder, was the principal ingredient of the flare. It was mixed in 500 pound batches, then twice granulated, spread on trays, and placed in the "cure room" for curing at 110o Fahrenheit. After the second curing, the illuminant was pressed into pellets. Also prepared in Building M-132 was the "first fire" material, a highly inflammable pyrotechnic compound used in the flares to ignite the illuminant. This material was prepared in small quantities by a similar process of screening, grinding and curing.

The flares were assembled in two stages. The first stage was the preparation of ignition pellets. On an assembly line conveyer, metal dies first were filled with illuminant. Then they proceeded on the conveyer belt to the "first fire addition station;" there one worker would remove a die from the belt and place it on a plywood board; another would pour first fire material into the die from a volumetric plastic scoop. The dies then returned to the belt and the materials were pressed into ignition pellets in the dies and ejected. The second step, the assembly of the ignition pellets and other compounds into flares, took place on another assembly line. At the head of the line were placed illuminant cases. Into these three illuminant pellets and an ignition pellet were placed. These candles were then covered to complete the flare.

B

The day of the catastrophe at Building M-132 is remembered as "Black Wednesday" at Woodbine. Shortly before 11:00 a. m., a fire broke out at the first fire addition station. The precise reason for the fire is unknown. It appears, however, to have been caused by friction or impact in the handling of the dies. The operator who poured first fire material into the dies on the plywood board said that fire seemed to come "right from the board itself." Fires are considered a normal hazard in pyrotechnic production, and there had been small fires on the ignition pellet assembly line at Woodbine during the preceding two months.

This time, the fire spread in a flash chain reaction. The fire traveled along the first fire assembly conveyer from die to die, then spread to an accumulation of ignition pellets at the end of the line. From there it traveled along a corridor, igniting an accumulation of 100 ignition pellets, then a rack of trayed illuminant, then several cans of illuminant pellets. Finally, the fire reached the door of the cure room. ³ Inside were 50 pounds of first fire material, 50 pounds of an intermediate mix, 1400 pounds of ignition pellets, and 8,000 pounds of trayed illuminant. The illuminant deflagrated, ⁴ and almost instantaneously exploded. Building M-132 was destroyed.

Three to four minutes elapsed from the time fire first broke out at the first fire addition station to the time of the explosion. All the employees evacuated the building. Thomas Aretz, one of the plaintiffs in this case, made a brief, futile attempt to fight the fire. The employees observed a series of two small explosions and then a massive explosion and a large fireball. The explosion scattered debris as far as 4200 feet. Thomas Aretz was thrown 175 feet. Some employees were killed or injured by the blast, others by the fireball.

A thorough report by a Thiokol investigating team identified three causes of the accident. First, the hazard classification of the illuminant underestimated the danger of an explosion. Second, the materials within Building M-132 were too close together, and operated as a fuse from the first fire addition station to the cure room. And third, the fire protection system in the building was unable to contain the initial fire. An investigation by the Bureau of Alcohol, Tobacco, and Firearms reached similar conclusions.

C

The manufacture of the flares in Building M-132 was taking place under a contract which Thiokol, as a privately owned, privately operated manufacturer, concluded with the Army on December 12, 1969. It called for the manufacture of 754,000 M49 A1 surface trip mines, subject to Army specifications and procurement regulations.

Pursuant to 32 C.F.R. § 7-104.79, the contract required that Thiokol comply with Department of Defense Contractor's Safety Manual for Ammunition, Explosives and Related Dangerous Materials, DOD 4145.26M. The purpose of this manual was to prescribe "safe methods, practices, and standards for insuring continuity of production, safe-guarding personnel, and preventing property damage at contractor operated plants." According to the manual "(t)he cardinal principle to be observed in any location or operation involving explosives, ammunition, severe fire hazards or toxic materials is to limit the exposure of a minimum number of personnel, for a minimum time, to a minimum amount of the hazardous material consistent with safe and efficient operation." The manual specified the duties of the procurement officials responsible for administering the contract, the Procuring Contracting Officer (PCO) and the Administrative Contracting Officer (ACO). Both had responsibility for including in the contract safety clauses and safety data and for taking steps to assure the contractor's compliance with these safety clauses. ⁵ For plants owned and operated by the contractor, the manual provided, "it is the responsibility of the Procuring Contracting Officer to determine the acceptable protection after considering the hazard involved and the risk that must be assumed."

An Army regulation, AMC 385-17 (April 15, 1969), required the PCO to insure the "specification of hazard classifications of end items and pertinent safety standards . . . ." "End items" were finished flares, as distinguished from "in process items." In addition to these supervisors, a Contracting Officer's Representative (COR) was stationed at the Woodbine plant. Although his principal duties concerned quality control, he could observe safety violations and either request the contractor to remedy the violations or report them to the ACO. The ACO in turn could order government personnel out of the plant if compliance was not achieved; this would have the effect of...