Laird v. Nelms

LOCATION: Christian County, Kentucky

DOCKET NO.: 71-573
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Fourth Circuit

CITATION: 406 US 797 (1972)
ARGUED: Apr 17, 1972
DECIDED: Jun 07, 1972

George E. Allen, Sr. - for respondents
Judge Powell -
Richard B. Stone - for petitioners

Facts of the case


Media for Laird v. Nelms

Audio Transcription for Oral Argument - April 17, 1972 in Laird v. Nelms

Warren E. Burger:

We'll hear arguments next in Laird against Nelms and others.

Mr. Stone you may proceed whenever you're ready.

Richard B. Stone:

Well, thank you Mr. Chief Justice and may it please the Court.

This case which comes on a writ of certiorari to the United States Court of Appeals for the Fourth Circuit raises two important questions of statutory interpretation concerning the scope of the government's liability under the Federal Tort Claims Act.

The issues in this case are closely related to and in our opinion, virtually controlled by the issues decided by this court in the landmark case of Dalehite versus United States decided at 346 US.

In that case, of course, the government was held not liable under the Tort Claims Act for damage caused in the disastrous explosion of certain chemical fertilizers with it in fact being transported by the government for export abroad which explosion virtually devastated the City of Texas.

Fortunately, the factual context to this case is somewhat less ghastly than that which the court confronted in Dalehite.

Warren E. Burger:

I am not so sure that it's important at all that Dalehite case, actually it was not government, private contractors were --

Richard B. Stone:

That's right, but it had been carried out for suing to a government --

Warren E. Burger:

That was basic issue that a private contractor was implementing governmental policies and try to keep (Inaudible) from starving?

Richard B. Stone:

I think, for the most part Mr. Chief Justice, it was assumed in the decision that the government had played a sufficiently close role in entire process including the planning of the export and the transporting and packing of the materials, that, that issue was, at least that level of responsibility was assumed in the opinion.

Respondents or residents of Nashville, North Carolina which is a rural community of about 1500 inhabitants.

And respondents alleged there on several occasions and especially on November 14, 1968, their house was damaged by so called sonic booms, which put simply noisy vibrations that may occur when aircraft fly overhead, it's speed greater than the speed of sound.

Respondent sought first to recover from the Air Force under the administrative procedures authorized by the Military Pay Claims Act and the Air Force regulations promulgated thereunder.

But the Air Force engineer who investigated their house, concluded in a detailed report which is reproduced at pages 16 and 17 of the record, concluded that the damages to respondent's home had indeed not been caused by sonic booms.

Respondents then sued the government and the District Court under the Federal Tort Claims Act.

In answer to their complaint and supporting affidavits, corroborating the event of the sonic boom and the relation of the November 14 sonic boom to certain damages sustained by respondent's home.

The government filed the motion for summary judgment and supporting affidavits.

The government's affidavits acknowledged that indeed the Air Force had conducted a supersonic flight over the Nashville, North Carolina area on the alleged day and that the aircraft and the flight were attached to the Ninth Strategic Reconnaissance Wing of the Strategic Air Command.

That is a branch of the Air Force which is charged with the execution of periodic high level supersonic training flights.

These flights, I understand are used for training pilots for combat missions and are regulated by comprehensive predetermined flight plans.

The Commander-in-Chief of the Strategic Air Command General Holloway who ranks for purposes of this type of operations directly below the Joint Chiefs of Staff, stated in his affidavit that he directed the operational training of Air Cruise by supersonic flights.

And that the November 14 flight was in his words, “Authorized by and conducted pursuant to my direction”.

Other affidavits filed by high Air Force personnel also stated that the flight was at all times on course, with respect to location and altitude as prescribed by the mission flight plan directed by the Commander in Chief and this statement is, I gather not controverted in any of the record of this case or in the Court of Appeals opinion, nor it is alleged at all that the flight plan itself was in any manner faulty.

The District Court granted the government's motion for summary judgment on the authority of the Dalehite case, on the ground primarily that the planning and execution of the flights in question was a “Discretionary function” for which the government is specifically exempted from liability under section 2688 of the Tort Claims Act.

And I shall address myself to that discretionary function provision shortly.

The Court of Appeals reversed the District Court's plan of summary judgment and the Court of Appeals held that the discretionary function exemption was inapplicable in this case for reasons which as I say, I shall refer to later.

On the merits of the case, after getting over the discretionary function exemption, the court held in direct contradiction I believe to this court's holding in Dalehite, that even though no negligence in the planning or operation of the flight had been alleged and no wrongful conduct at all had been alleged, the government could still be liable under the Tort Claims Act under a fury of strict liability for engaging in ultra hazardous activity.

The government believes that Court of Appeals erred in both aspects of its holding, both respect to it's refusal to apply the discretionary function exemption and on the merits in it's imposition of the theory of absolute liability for the conduct of ultra hazardous activity under the Tort Claims Act.

And I shall with the court's permission deal first with the merits of the case, that is, the question whether the Tort Claims Act gives rise to government liability for ultra hazardous activities without finding a fault or negligence.