Comments Absolute Liability Under the Federal Tort Claims Acty

• Author: By Major Fred K. Morrison
• Pages: 03

1. INTRODUCTION

   In Laird 1. Nelms; decided in June 1972, the Supreme Court put to rest any lingering notion that there might be room for the imposition of absolute liability under the Federal Tort Claims Act. Prior to this decision, there were indications that the Supreme Court had abandoned an earlier prohibition against absolute liability. The Fourth Circuit Court of Appeals had held that in an action under the Federal Tort Claims Act * the United States was liable for damage resulting from sonic booms generated by Air Force flights.' After holding that the discretionary function exception to the Tort Claims Act was not applicable, the court found the United States liable based on the conclusion that the

   .Thii article was adapted from a thesis presented to The Judge Aduo. eate general'^ School, US Amy, Charlottesville, Virginia, while the author

   wy88 a member of the Twentieth Advanced Course. The opinions and COW

   elusions presented herein are those of the author and do not neeesssrily represent the views of The Judge Advocate General's Sehaal or my govern. menta1 agency.

   **JAGC, US Army: US Army Training Center, Infantry, Fort Leah Washington. B.S., 1068, Purdue University; J.D.,

   1071. Calleee of William

   common law of Sorth Carolina would impose strict liability on a private person for damage caused by supersonic Rights.s For a little more than a year this decision raised the puzzling and important question of the existence of absolute liability under the Tort Claims Act. While most of the commentators e and the vast majority of the courts agreed that in its present form the Federal Tort Claims .4ct did not permit the imposition of absolute liability; the regularity and enthusiasm of the arguments for its adoption gave it the appearance of an idea whose time had came. However, the Supreme Court's holding in Nelms is a clear statement that there is no absolute liability under the present Federal Tort Claims Act.

   1. PL'RPOSE OF THE FEDERAL TORT CLAIMS ACT

      The Federal Tort Claims Act was passed in 1946, in order to eliminate the unjust consequences of sovereign immunity Since the federal Bovernment had become the largest single employer in the country, it was inevitable that in the course of its canducting the nation's businesa accidents would occur and the United States would be responsible for injuring a great many of its citizens. Although the Congress had long recognized its moral obligation to compensate those injured by the wrongful acts of government employees. the primary method far compensating the victims of government torts nas through private relief legislation This method of affording relief was extreme]? time-consuming and inefficient. The Congress had far more critical tasks calling for attention and in the words of John Quiney Adams, "[a] deliberative assembly is the worst of all tribunals

      'The place where the wrongill act or orni~bmn occurred See 2s T.S C

      'Selrns s Laird, 412 F.2d 1163, 1168-69 (4th Cir 1Yill" 2 F. HARPER 1x0 F. JAMES, THE LAW OF TORTS. 866-60 (1956):

      RTS, 974-75 (4th Ed. 1971); Dauia, Toil Liahilsiy

      B 1346ib) (1910)

      ABSOLUTE LIABILITY

      for the administration of justice."' Thus, the Tort Claims Act in addition to compensating the victims of government torts removed an extremely wearisome burden from the shoulder of the Congress.

   2. ABSOLUTE LIABILITY

      Ever since the celebrated English decision of Rylanda v. Fletcher,' the doctrine of absolute liability, particularly as applied to those engaged in abnormally dangerous activities has been growing in the United States. The theory underlying the doctrine of absolute liability is that while abnormally dangerous activities may not be illegal and may even have beneficial results, these activities should pay their own way. Thus, even though an individual who is engaged in an activity such a8 blasting or flying an airplane cannot with the utmost care and skill prevent some accidents, he should nevertheless, be responsible to those that are injured BS a result of his activities. Absolute liability then, is the price to be paid for the privilege of engaging in abnormally hazardous activities. In one form or another, frequently on a nuisance theory, the basic principle of absolute liability has been accepted in virtually all American jurisdictions.'D

   3. ABSOLUTE LIABILITY AND THE F.T.C.A.

      When the Federal Tort Claims Act was passed in 1946, the question soon arose whether the Act would permit recovery under a theory of absolute liability. While the Act appeared to make the United States liable in the same manner and extent as a private individual, the Act's requirement that the injury be "caused by the negligent or wrongful act or omission of any employee of the Government"" caused the courts to question the existence of absolute liability which by definition eliminates the necessity for proving negligence. Prior to the decisive Supreme Court decision of Delehite 9. United States,'= two Federal District Courts had stated that the words "wrongful Act" included those acts for which the United States may be absolutely liable. In Pareell v, L'nited States,'* a case involving an airplane crash, the court stated in dicta,'. that to say that "wrongful act" equals

      '!vl.IEMOIRS OF JOHN QuIXcr .&DAMS. 479-80 (1876). 'L.R.

      3 H.L.

      330 (1868). '"PR088ER. sup7a. note 6 at 605.16, "28 U.S.C. 6 1346(b) (1970)."346 US

      15 (1963).

      "104 F. Supp. 110 (S.D. W. Va. 1961).

      "Id. at 116. The actual holding YBB based on the inability of the United

      negligence would be inconsistent with the rule of Statutory interpretation that no portion of a statute susceptible of meaning is to be treated as superfluous. In the other case, Boyce v. United States,Is the United States was sued for property damage caused by the efforts of the United Statea to deepen the channel of the Alissisaippi River with dynamite blasting. Although the court denied recovers on the theory that this activity came within the discretionary function exception to the Tort Claims Act," the opinion stated that the use of a dangerous instrumentality so as to damage the property of another would constitute a wrongful act under the statute.

      These two decisions were like voices crying in the wilderness. The vast majority of the early cases held that there could be no recovery based an absolute liability under the Federal Tort Claims Act."

   4. DALEHITE V. Uh71TED STATES

      In 1953, the Supreme Court appeared to have settled the question by clearly denying the existence of absolute liability under the Tort Claims Act. The celebrated case of Dalehite II. L'nited States arose out the explosion at Texas City, Texas, of two government ships filled with fertilizer grade ammonium nitrate. While the Court's holding denying liability for the Texas City disaster was based on the discretionary function exception. the Court in dicta l3 clearly rejected any suggestion of imposing absolute liability under the Tort Claims Act. Justice Reed speaking for the majority stated:there 13 yet to be disposed of same slight residue of theory of sbaolvte liability without fault. . . . We agreed . . . that the Act does not extend to such sitnatmi, though of course well known ~n torr law generally. It IS to be invoked only on a "nepligent or wrongful act or omission" of an employee. Ahsalute iiahhty, of

      COYIJ~, arises irrespective of how the tortfeasor conducts himself: it is immsed automatically when any damaees are sustained as B

      .~

      States ta o~errorne the inference of negligence supplied by the application Of res 'pPa loquitur.

      "93 F. Supp. 866 iS.D. Iom 1950).'28 U.S.C. I2680(a) (1970).'See. e.&.. Heaie Y. United States, 201 F.2d 414 (3rd Or. 19531 ; Harrii v United States, 205 F.2d 165 (10th Clr. 1953): United States b. Inmon, 205 F.2d 681 Ibf! Cir 1953), United States V. Hull, 195 F.2d 64 (lit Cir 1952) Danner v Cnired States, 114 F. Supp. 477 i1Y.D. 310, 1953)

      '.is the basis for denying liability for the Texas City Diiarter was the dmrefionary functior excepnor, the discussion ai absolute !lability can properly be considered dicta 2. F HmER B €, J~nrEs, THE LAW oi- TORTS. 8E6-67 118561, Jacob?, mwa. note 6, 24 Fm. B.J. i t 140.

      cases that had relied on Dalehite, ta hold that sonic boom damage was covered by the discretionary function exception to the Tort Claims Act. The court stated that unlike the Texas City Explosion in Dalekite, the danger of sonic boom damage was clearly foreseeable. The court proposed "[t] he inability to prevent a deliberately released destructive force from causing harm" as an outer limit to the application of the discretionary function exception.*'

      Outside the Fourth Circuit, the courts have consistently adhered to the Dolehite dicta, although, as will be discussed later, the Supreme Court, itself, in a cryptic faatnote in Rayonier, Ine. 1'.

      Cnited States,*, appeared to have opened the door to overruling

      Dalehite on the issue of absolute liability.

   5. THE NEED FOR ABSOLUTE LIABILITY Obviously, the Federal Government with its armed forces, space exploration, Atomic Energy Commission, crime fighting activities, and immense construction projects, is the greatest single participant in abnormally dangerous activities. To make the United States immune from absolute liability is to a large extent to emasculate the purpose of the Tart Claims Act. It might be argued that the extent of the government's abnormally dangerous activities is a good reason not to include these activities within the purview of the Act. However, this results in a continued need for private relief legislation z8 or it forces those injured by government activities to bear a burden that should fall on thepublic at large, that is the taxpayer.

      It is arguable that any aspeet of sovereign immunity 1s a denial of equal protection of the law. A recent example*' of this reasoning was a suit against the Governor of Ohio far negligently ordering the Sational Guard to Kent State University at B time of such confusion that the order caused the...