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Tort Claim Preempted by Federal Interest in Battlefield Immunity

A tort claim against a defense contractor was preempted by federal interests and therefore dismissed by the District Court for the Southern District of New York because the claim arose from combatant military activity and the contractor was integrated into activities over which the military retained command authority. The plaintiff alleged he was injured by a fall in a toilet facility on a forward operating base in Iraq and his injuries were caused by the contractor's negligent construction and maintenance of the facility. The contractor provided operations and maintenance services at the base pursuant to a task order issued under the Logistics Civil Augmentation Program. In seeking dismissal, the contractor argued the claim was preempted by the policies underlying the Federal Tort Claims Act's combatant activities exception, which preserves sovereign immunity for any "claim arising out of the combatant activities of the military ... during time of war" (28 USC 2680(j)). More specifically, the contractor contended imposing tort liability for an injury in a latrine on a forward operating base would create a significant conflict with the unique federal interest in "the elimination of tort from the battlefield."

Combatant Activity

The court joined courts that applied the rationale in Boyle v. United Technologies Corp. (34 CCF 75,489) to the combatant activity exception (see Saleh, et al. v. Titan Corp., et al., 53 CCF 79,169) and granted summary judgment in favor of the contractor. In Boyle, the Supreme Court looked to the FTCA's "discretionary function" exception to determine whether a significant conflict existed between state and federal law. The district court declined to narrow the scope of the combatant activities exception to claims brought by "those against whom force is directed" and determined combatant activities preemption was a type of field preemption that made it unnecessary to determine whether military judgments were involved. The court also concluded the creation and maintenance of toilets on the base constituted active logistical support of combat operations and was a "combatant activity." Finally, the claim fell within the scope of the preemption because it was undisputed the contractor's services were integrated into the activities over which the military retained command authority. (Aiello v. Kellogg, Brown & Root Services, Inc., DC SD NY, 55 CCF 79,577)




(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )


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