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WARD v. UNITED STATES

September 17, 1971

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


McCune, District Judge.


The opinion of the court was delivered by: MCCUNE

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. *fn1" 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). *fn2" 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 unnecessary 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 ...


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