(1) PIGOTT v. BOEING COMPANY
Supreme Court of Mississippi, 1970 Miss. 240 So.2d 63
The plaintiffs, M. O. Piggott and his wife, sued the Boeing Company
in the Circuit Court of Pearl River County for damages alleged to have been
caused to plaintiffs' residence from concussions and vibrations to home
of landowners from concussions when defendant tested the Saturn Booster
Rocket at the National Aeronautics and Space Administration (NASA) test
site in Hancock County, Mississippi.
The trial court heard Boeing's affirmative defenses pursuant to Mississippi
Code 1942 Annotated, Section 1475.5 (1956) and dismissed the suit. Plaintiffs
appealed.
Boeing test-fired the booster stage of the Saturn rocket under a contract
with NASA, an agency of the United States Government, created by Act of
Congress to research the problems of space flight and related matters which
congress declared to be necessary for the general welfare and security of
the United States. A large area of land in Hancock County, Mississippi,
was acquired in fee by NASA and easements were acquired on an additional
buffer zone area. NASA constructed all the facilities for the transportation
of the rockets to the test site and all test site facilities. The rocket
was made elsewhere and transported by NASA to the test site.
Boeing contracted with NASA to manufacture the booster stage of the Saturn
Rocket and test it, furnishing the necessary technical knowledge. The rocket's
five engines developed 7,500,000 pounds of thrust. The house of plaintiffs
is located just outside the buffer zone. We assume for purposes of this
opinion that the concussion, vibrations and sound waves damaged plaintiffs'
residence.
The declaration stated as a conclusion that Boeing was negligent in test
firing the booster rocket, but it does not state any fact constituting negligence.
It is not sufficient to allege negligence as a mere conclusion of the pleader,
but facts must be pleaded showing actionable negligence, King v. Mississippi
Power & Light Co., 244 Miss. 486, 142 So.2d 222 (1962).
The decisive question, one of several affirmative defenses raised by Boeing,
is whether a contractor engaged in performing a lawfully authorized public
function of the United States Government in accordance with a public contract
is liable for damages to private property in the absence of the contractor's
negligence.
In our opinion this question is answered by Curtis v. Mississippi State
Highway Comm'n and Continental, Inc., 195 So.2d 497 (Miss.1967). The Court
held that the contractor was not liable for damages resulting from the contractor's
execution of the work of constructing a highway in accordance with the plans
and specifications and under the direction of the state highway engineers
if such improvement was made without negligence. The landowner's remedy,
if any, is against the public agency having the work done. In the absence
of negligence on the part of Boeing, the plaintiffs' remedy, if any, for
damages suffered to their property is against the United States. We do not
research the question of the liability of the United States or whether,
if the United States is immune from suit, Boeing can claim such immunity.
We rest our decision on the proposition that a contractor lawfully acting
in behalf of the United States in performing a lawful public function without
negligence is not liable for consequential damages resulting therefrom.
Mississippi Constitution §17 (1890), provides that private property
shall not be taken or damaged for public use, except on due compensation
being first made to the owner in a manner to be prescribed by law. The liability
thus imposed on the public agency is not based on tort, Stephens v. Beaver
Dam Drainage District, 123 Miss. 884, 86 So. 641 (1920). Such liability
is based upon the public agency's obligation to compensate for the damages
resulting from the rightful exercise of its power, as stated in Curtis v.
Mississippi State Highway Dept., supra. Neither the constitution nor the
laws of this state impose liability on a contractor who performs a lawful
public function without negligence.
The evidence adduced on the hearing of Boeing's affirmative defenses established
that Boeing was a public contractor, and in testing the rocket Boeing acted
in accordance with its contract under the direction of NASA. As already
noted, Boeing was not charged with any fact which would constitute negligence,
nor was there any proof of negligence.
We are therefore of the opinion that the judgment of dismissal should be
affirmed.
Affirmed.
|