Ward v. United States, Civ. A. No. 67-440.

• Decision Date: 17 September 1971
• Docket Number: Civ. A. No. 67-440.
• Citation: 331 F. Supp. 369
• Parties: William G. WARD, Plaintiff, v. The UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

331 F. Supp. 369

William G. WARD, Plaintiff, v. The UNITED STATES of America, Defendant.

Civ. A. No. 67-440.

United States District Court, W. D. Pennsylvania.

September 17, 1971.

Fred W. Dunton, Stein & Winters, Pittsburgh, Pa., for plaintiff.

Thomas A. Daley, Asst. U. S. Atty., Pittsburgh, Pa., for defendant.

OPINION and ORDER

McCUNE, District Judge.

The instant suit for personal injuries was initiated in April of 1967. Jurisdiction is predicated on 28 U.S.C.A. § 1346(b), the Federal Tort Claims Act. From then until March of 1971, the proceedings were stayed on motion of the plaintiff pending administrative disposition of plaintiff's claim under The Military Claims Act, 10 U.S.C.A. § 2733.¹ Following denial of that claim, plaintiff caused the stay to be lifted. The defendant has moved for summary judgment asserting the discretionary function exception, 28 U.S.C.A. § 2680(a), to the Federal Tort Claims Act, 28 U.S.C. A. § 1346(b).² Plaintiff has countered with a motion for partial summary judgment in an effort to establish absolute liability.

Plaintiff's injuries were incurred on April 9, 1965, when an auto on which he was working fell on him. The plaintiff alleges that a sonic boom created by an aircraft operated by defendant caused the auto to fall. The complaint asserts several theories of liability. Consideration of these various theories is however unnecessay to disposition of the government motion. That motion is grounded on the discretionary function exception, which if applicable is a complete bar to suit under the Tort Claims Act. Plaintiff's motion on the other hand must be denied unless defendant's decision to conduct supersonic flights imposed absolute liability for resulting damage. The plaintiff's motion, in other words, seeks a ruling that if defendant's flights caused the damage, defendant is liable regardless of fault.

Defendant has submitted certain affidavits in support of its motion. No counter-affidavits have been forthcoming from plaintiff. Plaintiff however has made objection to the defendant's affidavits on the ground that they do not meet the requirements of Rule 56(e) of the Federal Rules of Civil Procedure, requiring affidavits to be based on personal knowledge.

The affidavits presented were executed by General John P. McConnell, Chief of Staff of the Air Force, General Joseph J. Nazzaro, Commander-in-Chief of the Strategic Air Command and Colonel Hugh B. Robertson, Jr., who at the time of plaintiff's injury was Deputy Commander for Operations, 305th Bombardment Wing.

A discussion of each affidavit is in order.

The affidavit of General McConnell states in part:

"As Chief of Staff, I am also a member of the Joint Chiefs of Staff which reports directly to the President of the United States. The Commander-in-Chief, the Secretary of Defense, the Joint Chiefs of Staff and I determine policies, programs and procedures necessary to constantly maintain and improve the defense and deterrent capabilities of the United States Air Force. * * * Within this framework it was determined necessary in the national interests to design and build a bomber capable of flying at supersonic speeds. This bomber is designated * * * the B-58 and has been assigned to the Strategic Air Command for operational use.

"After thorough consideration and investigation of the risks involved, it has been determined necessary in the national interest to train combat air crews in supersonic flights simulating, as closely as possible, conditions and targets in time of war. To accomplish necessary combat training and proficiency, it was determined that supersonic flights over populated areas within the United States were required."

A supersonic flight corridor was established over Pittsburgh for this purpose.

General Nazzaro's affidavit states that pursuant to the policy determination mentioned by General McConnell, General Nazzaro directed the issuance of the regulations requiring supersonic flight training of B-58 air crews. The Pittsburgh Corridor was employed in this regard.

Colonel Robertson's affidavit states that in April of 1965 he was responsible for the performance of the flights directed under the policy described by Generals McConnell and Nazzaro. On the date of plaintiff's injury two such supersonic flights under Colonel Robertson's supervision were conducted in the Pittsburgh Corridor.

The plaintiff has presented no affidavits in support of his counter-motion but relies on Air Force Regulation 55-34 to establish that defendant's conduct constituted ultrahazardous activity and thus imposed liability without fault. Regulation 55-34 is an instruction to Air Force personnel on how supersonic flights are to be conducted so as to keep public inconvenience at a minimum. It states who may authorize such flights; it describes the minimum altitude at which such flights may be conducted; it requires units conducting such flights to keep a record of them on a specified form; and further states that the Air Force must accept responsibility for just claims of civilians injured by sonic booms.

We first must deal with the plaintiff's objection to defendant's affidavits. The affidavits are offered to establish the discretionary function exception which 28 U.S.C.A. § 2680(a) extends to the government and we conclude they are admissible for that purpose. Contrary to the plaintiff's allegation, the affidavits would appear to reflect the personal knowledge of the respective affiants. Each affiant covers an aspect of the decision to conduct supersonic flights and the selection of Pittsburgh as the situs for such flights.

It is apparent from the affidavits that both determinations were made by General McConnell at the Joint Chiefs of Staff level. The matters described by General Nazzaro and Colonel Robertson are the activities of subordinates in executing the basic policy determination. General McConnell's affidavit states that the policy of conducting supersonic flights was premised on the conclusion that national security required such flights. General Nazzaro was in overall command of the units operating the supersonic aircraft. His office was a conduit through which the policy determination flowed to the individual operating units, e. g., Colonel Robertson's 305th Bombardment Wing. Colonel Robertson was the direct supervisor charged with the reponsibility of seeing that the policy was carried into execution in accordance with guiding regulations, including Air Force Regulation 55-34. In this capacity he caused the planning and performance of two supersonic flights over the Pittsburgh area on April 9, 1965. This is corroborated by Exhibit "D" to the defendant's motion for summary judgment, the log book which Regulation 55-34 required the 305th Bombardment Wing to keep. It is our view that such a record book would qualify as a business record. The 305th was in the "business" of conducting supersonic flights and this log is a record of both what flights were conducted and the manner in which they were conducted.

The discretionary function exception, 28 U.S.C.A. § 2680(a), was examined at length by the Supreme Court in Dalehite v. United States.³ Dalehite was a death action arising from the 1946 Texas City disaster. The Court applied the discretionary function exception.

The Texas City disaster resulted from the explosion of several thousand tons of fertilizer grade ammonium nitrate. The material was loaded for export as part of a government program for feeding occupied nations after World War II. Ammonium nitrate is a prime ingredient in the manufacture of explosives. A particular grade of the same material is useful as fertilizer. In order to produce sufficient quantities of ammonium nitrate for its overseas fertilizer program, toward the end of World War II the government began diverting ammonium nitrate capacity not required for ordinance production to the production of the fertilizer grade product. The production for this purpose was carried on in government plants under supervision of the Army's Ordinance Branch. The material that exploded in Texas City was produced, packed and shipped as part of this government program. The district court found that the government was negligent in deciding to proceed with the program and further that the persons charged with carrying out the program were negligent in the manner in which they caused the packing, shipping, etc., to be accomplished. The Supreme Court however held that the United States could not be held liable under the Federal Tort Claims Act. Whether the injury resulted from the planning or the execution was not material.

"It is unnecessary to define, apart from this case, precisely where discretion ends. It is enough to hold, as we do, that the discretionary function or duty that cannot form a basis for suit under the Tort Claims Act includes more than the initiation of the programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable." Dalehite v. United States, 346 U.S. 15, 35, 73 S.Ct. 956, 968, 97 L.Ed. 1427.

In arriving at this conclusion the Court engaged in a definitive study of the Tort Claims Act and its exceptions starting with sovereign immunity. Recognizing as fundamental the concept that if it so desires the sovereign can bar all from obtaining redress in the courts simply by standing on its traditional immunity, the Court concluded that the sovereign can limit any waiver of such immunity in whatever fashion it sees fit. The history of the Federal Tort Claims Act and its exceptions, as analyzed by the Court in Dalehite, shows that what Congress intended was to allow the government to be sued for common law torts...