Miree v. U.S.
| Decision Date | 26 September 1978 |
| Docket Number | No. 33416,33416 |
| Citation | 249 S.E.2d 573,242 Ga. 126 |
| Parties | MIREE et al. v. UNITED STATES of America et al. |
| Court | Georgia Supreme Court |
Johnston, Barton, Proctor, Sweldlaw & Naff, Gilbert E. Johnston, Alan Heldman, Birmingham, Ala., Hansell, Post, Brandon & Dorsey, Hugh M. Dorsey, Jr., Jule Felton, Jr., Ross & Finch, A. Russell Blank, Baxter H. Finch, Ellis Ray Brown, Neely, Freeman & Hawkins, Joe C. Freeman, Jr., Paul M. Hawkins, William Q. Bird, Phillips, Hart & Mozley, J. Arthur Mozley, Atlanta, for appellants.
Long, Weinberg, Ansley & Wheeler, Meade Burns, F. Clay Bush, Atlanta, George P. Dillard, Decatur, Ronald R. Glancz, George M. Fleming, Washington, D. C., William D. Mallard, Jr., Asst. U. S. Atty., Harvey, Rhodes & Willard, Wendell K. Willard, Decatur, Falk, Carruthers & Roth, Herbert S. Falk, Jr., Greensboro, N. C., for appellees.
Pursuant to Code Ann. § 24-3902, the Fifth Circuit Court of Appeals of the United States certified the above cases to this court for determination of certain state law questions. The various parties submitted a joint statement of facts as well as the proposed certified questions. Counsel have supplied this court with copies of the joint appendix filed in the United States Supreme Court while the cases were on appeal there for use as an underlying record by all concerned. The joint statement was adopted by the Fifth Circuit Court of Appeals.
On February 26, 1973, a Lear jet crashed shortly after take-off from the DeKalb Peachtree Airport. The alleged cause of the crash was the ingestion of a large number of birds swarming over the airport and adjacent county garbage dump. Damage was substantial; all passengers were killed; the plane was destroyed; an individual on the ground was severely injured by burning jet fuel that fell from the disabled plane shortly before crashing; and property at the crash site was damaged. Separate actions were brought in the United States District Court for the Northern District of Georgia, Atlanta Division, by the survivors of occupants of the airplane, the burned victim, the insurer of the owner of the plane, and the owner of the property at the crash site. The various plaintiffs brought suit against DeKalb County, Georgia and the United States of America, asserting theories of negligence, nuisance and breach of contract. Defendant DeKalb County moved to dismiss on the grounds that it was immune from suit under Georgia law. The county's motion was granted and the plaintiffs appealed to the United States Court of Appeals for the Fifth Circuit.
The initial opinion of the Fifth Circuit Court of Appeals is reported at 526 F.2d 679 (affirming in part and reversing in part); the en banc opinion of the Fifth Circuit Court of Appeals is reported at 538 F.2d 643 (); and the opinion of the United States Supreme Court is reported at 433 U.S. 25, 97 S.Ct. 2490, 53 L.Ed.2d 557 (). On remand from the Supreme Court, the Fifth Circuit Court of Appeals ordered the questions involved certified to the Georgia Supreme Court.
The plaintiffs allege that the Federal Aviation Administration and the United States of America entered into a series of grant agreements with DeKalb County, Georgia. In such agreements DeKalb County was the "sponsor," and in return for the sponsor's assurances the United States of America granted funds to DeKalb County for various uses at DeKalb Peachtree Airport, including the construction of the jet runway involved in this litigation. It was alleged that the defendant DeKalb County, prior to the crash of the Lear jet airplane, maintained a garbage dump at its airport facility adjacent to said jet runway, and that the existence of the garbage dump with its contents attracted immense flocks of birds, all of which plaintiffs contend constituted an airport hazard.
In the series of grant agreements DeKalb County, as sponsor, agreed with the United States in part as follows:
The Grant Agreements in question also provided:
Plaintiffs claim that defendant DeKalb County knew of the existing bird hazard at DeKalb Peachtree Airport, in that such bird hazard had existed for a substantial period of time. Plaintiffs also claim that the existence of the birds attracted to the county's garbage dump created a substantial hazard to the safe operation of departing and arriving jet turbine aircraft. Based upon these allegations, plaintiffs contend that both the United States and DeKalb County were negligent in the operation and maintenance of the airport. Plaintiffs further allege that DeKalb County is liable for the maintenance of a public nuisance, and for breach of the grant agreements in failing to maintain the airport in an adequate and safe condition for the benefit of aeronautical users thereof and for the benefit of the public.
(a) In these particular cases, under Georgia law is DeKalb County immune from suit under a theory of negligence, if the negligence arose from the violation by DeKalb County of specific contractual and statutorily imposed duties?
(a) In these particular cases, under Georgia law is DeKalb County immune from suit under a theory of nuisance, if the nuisance was created in violation of specific contractual and statutorily imposed duties?
3. In these particular cases, under Georgia law may these plaintiffs maintain an action as third-party beneficiaries based upon the alleged breach of the contracts between DeKalb County and the Federal Aviation Administration, or is DeKalb County immune from such claims?
(a) In these particular cases, if under Georgia law DeKalb County is not immune from suit based upon allegations of third-party beneficiary status under the grant agreement, are the plaintiffs in these cases intended or incidental third-party beneficiaries of the grant agreement covenants?
(b) If DeKalb County is not immune from suit in these particular cases under said contract theory and if these plaintiffs are intended third-party beneficiaries, will an action for personal injuries and property damage lie against DeKalb County where the damages arose from the alleged negligence of the county in carrying out or failing to carry...
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