U.S. v. Aretz

• Decision Date: 15 July 1981
• Docket Number: No. 37389,37389
• Parties: UNITED STATES of America v. ARETZ et al.
• Court: Georgia Supreme Court

Page 345

280 S.E.2d 345

248 Ga. 19

UNITED STATES of America v. ARETZ et al.

No. 37389.

Supreme Court of Georgia.

July 15, 1981.

Alice Daniel, Barbara Allen Babcock, Asst. Attys. Gen., U.S. Dept. of Justice, Thomas S. Martin, Acting Asst. Atty. Gen., U.S. Dept. of Justices, Washington, D. C., William T. Moore, U. S. Atty., Savannah, Edmond A. Booth, Jr., Augusta, Ga., Frank A. Rosenfeld, Michael Kimmel, James P. Klapps, Neil R. Peterson.Civ. Div., Dept. of Justice, Washington, D.C., for United States.

Frank P. Brannen, Brannen, Wessels & Searcy, Savannah, Jim Ammerman, Marshall, Tex., James A. Bishop, Andrew A. Taylor, Brunswick, C. Wayne Alford, T. Edward McClamma, Jacksonville, Fla., A. Blenn Taylor, Jr., Taylor, Bishop & Lee, P. C., Brunswick, for Eleanore Hibbinbotham, Aretz et. al.

Joseph Jones, Jr., Hill, Jones & Robinson, P.C., Atlanta, for amicus curiae.

PER CURIAM.

Pursuant to Rule 36 of this court, Code Ann. § 24-3902, the U.S. Court of Appeals for the Fifth Circuit has certified questions arising in the above-styled case, which is on appeal from the U.S. District Court for the Southern District of Georgia.

The plaintiff Aretz is bringing this suit against the United States government under the Federal Tort Claims Act. 28 U.S.C.A. § 1346(b) et seq. The plaintiff is seeking to recover damages for injuries suffered as the result of a massive explosion at a chemical plant owned and operated by Thiokol Chemical Corporation in Woodbine, Georgia. The explosion occurred while Thiokol at its Woodbine Division was engaged in the performance of a military procurement contract entered into between Thiokol and the Department of the Army.

Course of the Litigation

Originally, suits were brought by and on behalf of various of the injured and deceased employees against the United States and Thiokol jointly. In Massey v. Thiokol Chemical Corp., 368 F.Supp. 668 (S.D.Ga.1973), Thiokol's motion for summary judgment was granted on the ground that Thiokol's employees were covered by workers' compensation insurance. Under Georgia law, the existence of workers' compensation coverage excludes all other remedies against the employer. Code Ann. § 114-103 (Ga.L.1972, pp. 929, 930); e. g., Allied Chemical Corp. v. Peacock, 151 Ga.App. 278, 259 S.E.2d 681 (1979).

Thiokol employees then brought suit against the United States government under the Federal Tort Claims Act. This Act waives federal governmental immunity from suit "on claims against the United States, for money damages, accruing on and after January 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 while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred."

In their respective suits the Thiokol employees are seeking to hold the government liable for their injuries on the ground that independent acts of negligence chargeable to federal contract procurement officials constituted a proximate cause of the explosion.

The Thiokol employees seek an aggregate amount of $717,526,391 in damages. All of the employees' suits were consolidated for the liability phase of a bifurcated liability-damage trial in federal district court. Following the liability trial, the federal district court issued an opinion in Aretz v. United States, 503 F.Supp. 260 (S.D.Ga.1977), concluding that the United States government is liable to the Thiokol employees under the tort law of Georgia. The plaintiff Aretz' case became the test case in which to conduct a trial on the question of damages. The other suits have been stayed pending the outcome of this suit, although the other Thiokol employees have joined as appellees in this appeal. At a non-jury trial, Aretz was awarded $594,272 in damages. 456 F.Supp. 397.

Initially, the judgment was affirmed by a three-judge panel on the Fifth Circuit Court of Appeals. Aretz v. United States, 604 F.2d 417 (5th Cir.1979). However, the Court of Appeals granted the petition for rehearing en banc. Aretz v. United States, 616 F.2d 254 (5th Cir.1980). Subsequently, the Court of Appeals issued an opinion finding that this case involves determinative questions or propositions of law of the State of Georgia on which there appears to be no clear, controlling precedent in the decisions of this court. Aretz v. United States, 635 F.2d 485 (5th Cir., 1981). Accordingly, the Court of Appeals has certified these questions of state law to us for instructions concerning them based on the facts found by the federal district court.

Facts of the Case as Found by the Federal District Court

Prior to even stating the certified question, it is necessary to review the facts giving rise to this case. As found by the federal district court, the facts are essentially as follows:

(A) Facts:

In 1969, the United States, through the Department of the Army, Picattiny Arsenal, Dover, New Jersey, entered into a contract with Thiokol under which Thiokol was to manufacture trip flares to be used as an illuminant during nighttime combat in the war in Vietnam. The contract was awarded to Thiokol after Picattiny had issued an Invitation for Bids together with specifications for production of the trip flares. Thiokol was the lowest bidder.

The Department of Defense promulgates a "DOD Contractor's Safety Manual for Ammunition, Explosives, and Related Dangerous Material" (October, 1968), which was incorporated into the Thiokol-Army contract. The DOD manual requires federal contracting officials to include safety clauses in contracts such as this, to conduct safety surveys at contractors' plants so as to ensure compliance with federal safety standards, and to provide contractors with technical safety data.

In addition, the DOD manual contains classifications of explosives and similar dangerous material based on their hazardousness, with varying storage requirements applicable to the items in each classification group. The least hazardous classification is Class 2. Class 2 is a fire hazard, which embraces items that burn vigorously with little or no possibility of extinguishment in a storage situation; explosion of such material will be confined to pressure ruptures of containers and will not produce shock waves or damaging blast overpressure. Class 7 is the highest hazard classification. It covers Mass Detonating Hazards and embraces materials that will explode virtually instantaneously when subjected to fire or impact; severe structural damage to adjacent objects is caused.

Under the following Armed Forces procurement regulations, which were incorporated into the Thiokol-Army contract, storage of the illuminant materials in accordance with the DOD classification was established as a minimal requirement on which Thiokol was not entitled to rely in discharging its responsibility for the safety of its employees and others:

"(d) Neither the requirements of this clause nor any act or failure to act by the Government in surveillance or enforcement thereof shall affect or relieve the contractor of responsibility for the safety of his personnel and his property and for the safety of the general public in connection with the performance of this contract, or impose or add to any liability of the Government for such safety. The Contractor is not entitled to rely on the requirements of this clause or any Government surveillance or enforcement thereof, or lack thereof, or granting of any waiver or exemption in accordance with DOD 4145.26M in discharging the Contractor's responsibility." 32 CFR § 7-704.79(d) (1970 Ed.)

"(f) The requirements of this clause are minimum requirements, the Contractor agrees that he, and not the Government is responsible for the safety of his personnel and property, and that of the general public, in accordance with the performance of this contract, and that he is not entitled to rely on the requirements of this clause, or any government surveillance or enforcement thereof, in discharging his responsibility or to impose liability of any kind on the Government." Id at Subsection (f).

Under the "card-gap" test employed by the Army at the time the Thiokol-Army contract was let, illuminant material used in pyrotechnics manufacture was classified as a Class 7 explosive if found to have a certain detonative effect. Otherwise, such material was classified as a Class 2 fire hazard only. Under the "card-gap" test, the illuminant material used in the production of the trip flares (a magnesium and sodium nitrate compound) was found not to be detonative. Accordingly, it was classified as a Class 2 fire hazard, although prior to 1967 it had been classified as a Class 7 explosive.

The trip flares were produced in Building M-132 at Thiokol's Woodbine plant. On February 3, 1971, a fire broke out in Building M-132. Feeding on various materials used in production of the trip flares, the fire spread from the assembly line to a cure room where approximately 8,000 pounds of loose illuminant material was being stored. Deflagration of the illuminant material produced a massive explosion, followed by the appearance of a large fireball at the site of the explosion and a rain of burning debris over a wide area. Building M-132, which was destroyed by the explosion, had been evacuated by the time the explosion occurred. The explosion, nonetheless, killed 29 employees and injured 50 others.

Investigations conducted by Thiokol and the government concluded that there were three major contributing factors to the explosion: (1) inadequate hazard classification of illuminant material; (2) inadequate separation of materials throughout Building M-132; and (3) inadequate fire protection system in Building M-132.

Both the Army and Thiokol knew before the explosion that the illuminant material used in the production of...