McMichael v. United States
| Decision Date | 02 September 1981 |
| Docket Number | 77-1008,77-1031 to 77-1034,No. 77-1006,78-1006 and 78-1015.,77-1006 |
| Citation | 521 F. Supp. 1273 |
| Parties | J. A. McMICHAEL, Adm. of the Estate of Emma McMichael, Plaintiff, v. UNITED STATES of America, Defendant. Mrs. Lamar BARTLETT, Mrs. Thelma Lowe, Mrs. Edna Rogers, Mrs. Flora Weaver and Mrs. Georgia Ray, Plaintiffs, v. UNITED STATES of America, Defendant. Leonard MADISON, Adm. of the Estate of Lula Mae Madison, Plaintiff, v. UNITED STATES of America, Defendant. Oscar WALKER, Adm. of the Estate of Eliza Walker, Deceased, Plaintiff, v. UNITED STATES of America, Defendant. Willie MOODY, Adm. of the Estate of Geraldine Moody, Deceased, Plaintiff, v. UNITED STATES of America, Defendant. Willie E. KELLY, Adm. of the Estate of Shirley J. Kelly, Deceased, Plaintiff, v. UNITED STATES of America, Defendant. Billy HARRISON, Adm. of the Estate of Elsie Marie Harrison, Plaintiff, v. UNITED STATES of America, Defendant. Georgia RAY, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Western District of Arkansas |
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Phillip H. McMath, McMath & Leatherman, Little Rock, Ark., for plaintiffs in Nos. 77-1006, 77-1008, 78-1006, 78-1015.
Bernard Whetstone, Little Rock, Ark., for plaintiffs in Nos. 77-1031, 77-1032, 77-1033, 77-1034.
Larry McCord, U.S. Atty., and Floyd Clardy, Asst. U.S. Atty., Fort Smith, Ark., for defendant.
These consolidated cases were filed individually by complaint against the United States of America under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-2678, 2680. The plaintiffs seek damages against the United States of America for injuries and deaths caused by an explosion near Camden, Arkansas on March 8, 1976. The explosion occurred at a plant where Celesco Industries, Inc., (Celesco) an Independent Contractor, was in the process of producing a certain type of ammunition pursuant to a contract with the United States of America.
As a result of the explosion, seven employees of Celesco Industries, Inc., were fatally injured. Six are represented in these actions by administrators of their estates. Five other employees of Celesco were seriously injured. The plaintiffs allege negligent acts on the part of the U.S.A. in their complaints. The alleged negligent acts are enumerated in the complaints.
The defendant government has filed a Motion for Summary Judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure. The government contends that there is no material issue of fact and, therefore, is entitled to judgment as a matter of law. Counsel for the parties have filed briefs with voluminous records and the motion is submitted for the Court's determination.
In submitting the motion for the Court's consideration, the parties have filed a stipulation for the purpose of forming a basis for the Court's ruling on the Motion for Summary Judgment. This stipulation, which includes facts only for the purpose of the Court's ruling on the summary judgment motion, states:
From the items included in the stipulation and the circumstances as recorded in the numerous complaints, it is apparent the tragic explosion should never have occurred. The record is replete with evidence of callous and gross negligence on the part of Celesco and the United States through its employees and agents. The negligence is of such proportions as to be almost beyond description.
As included in the stipulation, the government, through the Department of Defense (DOD), had a contract with Celesco for the production of Photo-Flash cartridges. These cartridges are not only potentially explosive, but recognized as being inherently dangerous or ultra-hazardous.
The government admits that it knew Celesco did not have the requisite skills; that the facilities of the munitions plant in question were inadequate; and that the government was aware, or should have learned, of the various inadequacies had the on-site inspectors who were present throughout the operation performed their duties.
The thrust of the motion for summary judgment is that regardless of the failure of the defendant's inspectors to perform responsibly in the course of their duties, the United States of America is exempt from liability under the FTCA for the damages caused by the tragic incident involved in these actions.
Prior to the passage of the Federal Tort Claims Act in 1946 by the Seventy-Ninth Congress, any claim against the United States of America had to be made through private legislation approved by the Congress with the concurrence by the President. Each Congress considered private bills for people who had suffered injuries or death due to acts of employees of the United States of America. This Court has personal knowledge of the frustrations, inadequacies and injustices which resulted. After almost thirty years of Congressional consideration, the FTCA was adopted as Title IV of the Legislative Reorganization Act, 60 Stat. 842. By this action, the District Courts were given jurisdiction over acts of negligence or misfeasance of government employees during the course of their employment. Liability, with an ensuing obligation to pay damages, could be found. This liability, however, was subject to certain exceptions.
Subject to the provisions of Chapter 171 of Title 28 (28 U.S.C. § 2680), the District Courts "... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after July 1, 1945, for injury or loss of property, or personal injury or death, caused by the negligent or wrongful act or omission of any employee of the government under circumstances where the United States, as a private person would be liable to the claimant in accordance with the law of the place where the act or omission occurred." Section 1346(b).
The exception (28 U.S.C. § 2680) provides:
As a part of the U.S.A. arsenals authorized in World War II, the government developed an ammunition depot at Shumaker, Ouachita County, Arkansas. The depot, comprised of approximately 68,000 acres, originally produced and packaged ammunition used by the United States and allies in World War II. Also, substantial tests of long and short range firings were conducted at the depot. Numerous buildings, located on the project, were used for several purposes, including storage of ammunition.
Some time after the conclusion of World War II and the Korean War, the government disposed of the project. Most of the project was turned over for development by private industry. A substantial part of the building complexes remained and were transferred to privately owned, controlled and operated enterprises.
Through the years a substantial part of the properties, including buildings, were utilized by private industry to perform contracts with the United States. Some of the contracts were for substantial production for the DOD as a part of the government's military operation.
One of the buildings utilized was known as M-35-B. Building M-35, as used by Celesco, was the site of the explosion involved in this litigation. It is part of the Highland Park Industrial Area, East Camden, Arkansas. The Highland Park Industrial Area is that part of the ammunition depot at Shumaker Naval project that was disposed of by the government via sale or contract to a private entity, Highland Resources, Inc., Houston, Texas, for industrial development and to be utilized by private industry. Highland Resources, Inc., is a Texas corporation that became the owner of the area, including land, buildings, and other properties. Highland Resources, by lease agreement as owner and lessor of the property, leased the building to Celesco Industries, Inc., for the purpose of producing the Photo-Flash cartridge under its contract with the government as herein described. The building leased by Highland...
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McMichael v. U.S.
...moved for summary judgment on the ground that the plaintiffs' claims were barred by the discretionary function exception to the FTCA. 521 F.Supp. 1273. 28 U.S.C. Sec. 2680(a). On appeal, we affirmed the district court concerning the first two theories of liability, but held that the discret......
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Harrison v. U.S.
...personal injury and wrongful death actions brought by eleven plaintiffs under the Federal Tort Claims Act (FTCA). The district court, 521 F.Supp. 1273, held that plaintiffs' tort claims were barred by the discretionary function exception to the FTCA. This court reversed in part, holding tha......