# Laird v. Nelms/Dissent Stewart

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Stewart
[p803] MR. JUSTICE STEWART, with whom MR. JUSTICE BRENNAN joins, dissenting.
Under the Federal Tort Claims Act, the United States is liable for injuries to persons or property
   "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 [p804] accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346 (b).
The Court of Appeals in this case found that the law of North Carolina renders a person who creates a sonic boom absolutely liable for any injuries caused thereby, and that finding is not challenged here. And while the petitioners argue that the conduct involved falls within one of the numerous express exceptions to the coverage of the Act contained in § 2680, the Court today does not reach that issue. Rather, the Court holds that the words "negligent or wrongful act or omission" preclude the application to the United States of any state law under which persons may be held absolutely liable for injuries caused by certain kinds of conduct. In my view, this conclusion is not justified by the language or the history of the Act, and is plainly contrary to the statutory purpose. I therefore dissent.
In the vast majority of cases in the law of torts, liability is predicated on a breach of some legal duty owed by the defendant to the plaintiff, whether that duty involves exercising reasonable care in one's activities or refraining from certain activities altogether. The law of most jurisdictions, however, imposes liability for harm caused by certain narrowly limited kinds of activities even though those activities are not prohibited and even though the actor may have exercised the utmost care. Such conduct is "tortious," not because the actor is necessarily blameworthy, but because society has made [p805] a judgment that while the conduct is so socially valuable that it should not be prohibited, it nevertheless carries such a high risk of harm to others, even in the absence of negligence, that one who engages in it should make good any harm caused to others thereby. See generally 2 F. Harper & F. James, Law of Torts 785-795, 815-816 (1956); W. Prosser, Law of Torts 442-496 (4th ed. 1971).
While the doctrine of absolute liability is not encountered in many situations even under modern tort law, it was nevertheless well established at the time the Tort Claims Act was enacted, and there is nothing in the language or the history of the Act to support the notion that this doctrine alone, among all the rules governing tort liability in the various States, was considered inapplicable in cases arising under the Act. The legislative history quoted by the Court relates solely to the "discretionary function" exception contained in § 2680, an exception upon which the Court specifically declines to rely. As I read the act and the legislative [p806] history, the phrase "negligent or wrongful act or omission" was intended to include the entire range of conduct classified as tortious under state law. The only intended exceptions to this sweeping waiver of governmental immunity were those expressly set forth and now collected in § 2680. This interpretation was put upon [p807] the Act by the legislative committees that recommended its passage in 1946: "The present bill would establish a uniform system... permitting suit to be brought on any tort claim... with the exception of certain classes of torts expressly exempted from the operation of the act." (Emphasis supplied.) H.R. Rep. No. 1287, 79th Cong., 1st Sess., 3; S. Rep. No. 1400, 79th Cong., 2d Sess., 31. See Peck, Absolute Liability and the Federal Tort Claims Act, 9 Stan. L. Rev. 433, 441-450 (1957).
The Court rests its conclusion on language from Dalehite v. United States, 346 U.S. 15, where a four-man majority of the Court, in an opinion dealing primarily with the "discretionary function" exception, held the doctrine of absolute liability inapplicable in that extremely unusual case arising under the Federal Tort Claims Act. That language has been severely criticized; [p808] it has not since been relied upon in any decision of this Court; and it was rejected as a general principle by at least one Court of Appeals less than a year after Dalehite was decided. United States v. Praylou, 208 F. 2d 291, 295. Moreover, Dalehite represented an approach to interpretation of the Act that was abruptly changed only two years later in Indian Towing Co. v. United States, 350 U.S. 61. That decision rejected the proposition that the United States was immune from liability where the activity involved was "governmental" rather than "proprietary"—a proposition that seemingly had been established in Dalehite. And while the Dalehite opinion explicitly created a presumption in favor of sovereign immunity, to be overcome only where relinquishment by Congress was "clear," 346 U.S., at 30-31, the court in Indian Towing recognized that the Tort Claims Act "cuts the ground from under" the doctrine of sovereign immunity, and cautioned that a court should not "as a self-constituted guardian of the Treasury import immunity back into a statute designed to limit it." 350 U.S., at 65, 69. See also Rayonier, Inc. v. United States, 352 U.S. 315, 319-320. These development, together with an approving citation of the Praylou case in Rayonier, supra, at 319 n. 2, have until today been generally understood to mean that the language in Dalehite rejecting the absolute-liability doctrine had been implicitly abandoned.
[p809] The rule announced by the Court today seems to me contrary to the whole policy of the Tort Claims Act. For the doctrine of absolute liability is applicable not only to sonic booms, but to other activities that the Government carries on in common with many private citizens. Absolute liability for injury caused by the concussion or debris from dynamite blasting, for example, is recognized by an overwhelming majority of state courts. A private person who detonates an explosion in the process of building a road is liable for injuries to others caused thereby under the law of most States even though he took all practicable precautions to prevent such injuries, on the sound principle that he who creates such a hazard should make good the harm that results. Yet if employees of the United States engage in exactly the same conduct with an identical result, the United States will not, under the principle announced by the Court today, be liable to the injured party. Nothing in the language or the legislative history of the Act compels such a result, and we should not lightly conclude that Congress intended to create a situation so much at odds with common sense and the basic rationale of the act. We recognized that rationale in Rayonier, supra, a case involving negligence by employees of the United States in controlling a forest fire:
   "Congress was aware that when losses caused by such negligence are charged against the public treasury they are in effect spread among all those who contribute financially to the support of the Government and the resulting burden on each [p810] taxpayer is relatively slight. But when the entire burden falls on the injured party it may leave him destitute or grievously harmed. Congress could, and apparently did, decide that this would be unfair when the public as a whole benefits from the services performed by Government employees." 352 U.S., at 320.
For the reasons stated, I would hold that the doctrine of absolute liability is applicable to conduct of employees of the United States under the same circumstances as those in which it is applied to the conduct of private persons under the law of the State where the conduct occurs. That holding would not by itself be dispositive of this case, however, for the petitioners argue that liability is precluded by the "discretionary function" exception in the act. While the Court does not reach this issue, I shall state briefly the reasons for my conclusion that the exception is inapplicable in this case.
No right of action lies under the Tort Claims Act for any claim
   "based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680 (a).
The Assistant Attorney General who testified on the bill before the House committee indicated that this provision was intended to create no exceptions beyond those that courts would probably create without it:
   "[I]t is likely that the cases embraced within that subsection would have been exempted from [a bill [p811] that did not include the exception] by judicial construction. It is not probable that the courts would extend a Tort Claims Act into the realm of the validity of legislation or discretionary administrative action, but [the recommended bill] makes this specific." Hearings on H.R. 5373 and H.R. 6463 before the House Committee on the Judiciary, 77th Cong., 2d Sess., ser. 13, p. 29.
The Dalehite opinion seemed to say that no action of a Government employee could be made the basis for liability under the Act if the action involved "policy judgment and decision." 346 U.S., at 36. Decisions in the courts of appeals following Dalehite have interpreted this language as drawing a distinction between "policy" and "operational" decisions, with the latter falling outside the exception. That distinction has bedeviled the courts that have attempted to apply it to torts outside routine categories such as automobile accidents, but there is no need in the present case to explore the limits of the discretionary function exception.
The legislative history indicates that the purpose of this statutory exception was to avoid any possibility that policy decisions of Congress, of the Executive, or of administrative agencies would be second-guessed by courts in the context of tort actions. There is no such danger [p812] in this case, for liability does not depend upon a judgment as to whether Government officials acted irresponsibly or illegally. Rather, once the creation of sonic booms is determined to be an activity as to which the doctrine of absolute liability applies, the only questions for the court relate to causation and damages. Whether or not the decision to fly a military aircraft over the respondents' property, at a given altitude and at a speed three times the speed of sound, was a decision at the "policy" or the "operational" level, the propriety of that decision is irrelevant to the question of liability in that case, and thus the discretionary function exception does not apply.

## Notes

* ↑ The question whether damage caused by sonic boom is recoverable on a theory of absolute liability has received considerable attention from commentators, most of whom have concluded that there should be such recovery, at least under certain conditions. See, e.g., Note, 32 J. Air Law & Commerce 596, 602-605 (1966); Note, 39 Tulane L. Rev. 145 (1964); Comment, 31 So. Cal. L. Rev. 259, 266-274 (1958); W. Prosser, Law of Torts 516 (4th ed. 1971).
* ↑ See n. 5, infra.
* ↑ The Court's opinion refers to language in Dalehite v. United States, 346 U.S. 15, which in turn relied on a fragment of legislative history, for the proposition that the words "wrongful act" as used in § 1346 (b) refer only to trespasses. The legislative history cited by the Court in Dalehite, consisting of a statement by a Special Assistant to the Attorney General at a committee hearing, merely suggested trespass as one example of the kinds of conduct that would not be embraced by the word "negligence" but which the Act was intended to reach. As the Court today observes, many of the state cases applying what is essentially the doctrine of absolute liability for ultrahazardous activities speak in terms of "trespass." See, e.g., Guilford Realty & Ins. Co. v. Blythe Bros. Co., 260 N.C. 69, 131 S.E. 2d 900 (1963); Enos Coal Mining Co. v. Schuchart, 243 Ind. 692, 188 N.E. 2d 406 (1963); Whitney v. Ralph Myers Contracting Corp., 146 W. Va. 130, 118 S.E. 2d 622 (1961). The similarity between the theories of trespass and absolute liability in the blasting cases leads the Court to conclude that the Act does not permit. recovery, on a "trespass" theory in this case because the Act does not permit recovery on an absolute-liability theory. But if Congress intended, as the Court assumes, that "trespasses" be covered by the Act, I should think the similarity between the two, theories would more logically lead to a conclusion that absolute-liability situations are likewise covered.
* ↑ A bill passed by the Senate in 1942 covered only actions based on the "negligence" of Government employees. S. 2221, 77th Cong., 2d Sess. The House committee substituted the phrase "negligent or wrongful act or omission," saying that the "committee prefers its language as it would afford relief for certain acts or omissions which may be wrongful but not necessarily negligent." H.R. Rep. No. 2245, 77th Cong., 2d Sess., 11. The language used by the House committee was carried over into the bill finally enacted in 1946, without further mention in the committee reports of the intended scope of the words "wrongful act."
* ↑ "The provisions of this chapter and section 1346 (b) of this title shall not apply to— "(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. "(b) Any claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter. "(c) Any claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods or merchandise by any officer of customs or excise or any other law-enforcement officer. "(d) Any claim for which a remedy is provided by sections 741-752, 781-790 of Title 46, relating to claims or suits in admiralty against the United States. "(e) Any claim arising out of an act or omission of any employee of the Government in administering the provisions of sections 1-31 of Title 50, Appendix. "(f) Any claim for damages caused by the imposition or establishment of a quarantine by the United States. "(g) Repealed. "(h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights. "(i) Any claim for damages caused by the fiscal operations of the Treasury or by the regulation of the monetary system. "(j) Any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war. "(k) Any claim arising in a foreign country. "(l) Any claim arising from the activities of the Tennessee Valley Authority. "(m) Any claim arising from the activities of the Panama Canal Company. "(n) Any claim arising from the activities of a Federal land bank, a Federal intermediate credit bank, or a bank for cooperatives."
* ↑ See, e. g., Peck, Absolute Liability and the Federal Tort Claims Act, 9 Stan. L. Rev. 433 (1957); Jacoby, Absolute Liability under the Federal Tort Claims Act, 24 Fed. Bar J. 139 (1964) 2 F. Harper & F. James, Law of Torts 860 (1956).
* ↑ Four members of the Court dissented, saying that the failure of Congress to amend the Act after Dalehite should have been taken as indicating approval by Congress of the interpretation given to the Act in that case. 350 U.S., at 74.
* ↑ See Peck, supra, n. 6, at 435; Jacoby, supra, n. 6, at 140; Comment, 31 So. Cal. L. Rev. 259, 266 n. 56; Dostal, Aviation Law under the Federal Tort Claims Act, 24 Fed. Bar J. 165, 177 (1964).
* ↑ See, e.g., Whitman Hotel Corp. v. Elliott & Watrous Eng. Co., 137 Conn. 562, 79 A. 2d 591 (1951); Louden v. City of Cincinnati, 90 Ohio St. 144, 106 N.E. 970 (1914); Thigpen v. Skousen & Hise, 64 N.M. 290, 327 P. 2d 802 (1958); Wallace v. A.H. Guion & Co., 237 S.C. 349, 117 S.E. 2d 359 (1960); and cases cited in n. 3, supra. See generally W. Prosser, Law of Torts 514 (4th ed. 1971).
* ↑ See, e.g., Eastern Air Lines v. Union Trust Co., 221 F. 2d 62, aff'd, 350 U.S. 907; Fair v. United States, 234 F. 2d 288; Hendry v. United States, 418 F. 2d 774. For a thorough discussion of the "policy/operational" distinction that has developed, see Reynolds, The Discretionary Function Exception of the Federal Tort Claims Act, 57 Geo. L. J. 81 (1968).
* ↑ The policy behind the exception is explained by one leading commentator as follows: "[A]Imost no one contends that there should be compensation for all the ills that result from governmental operations. No one, for instance, suggests that there should be liability for the injurious consequence of political blunders such as the unwise imposition of tariff duties or the premature lifting of OPA controls.... The separation of powers in our form of government and a decent regard by the judiciary for its co-ordinate branches should make courts reluctant to sit in judgment on the wisdom or reasonableness of legislative or executive political action. Moreover, courts are not particularly well suited to pursue the examinations that would be necessary to make this kind of judgment." James, The Federal Tort Claims Act and the "Discretionary Function" Exception: The Sluggish Retreat of an Ancient Immunity, 10 U. Fla. L. Rev. 184 (1957).