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BULLOCH v. UNITED STATES

October 26, 1956

CAROLINE N. BULLOCH, MCRAE N. BULLOCH AND KERN BULLOCH, EXECUTORS OF THE ESTATE OF DAVID C. BULLOCH, MCRAE N. BULLOCH AND KERN BULLOCH, PLAINTIFFS,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Christenson, District Judge.

During the Spring of 1953, the United States Atomic Energy Commission conducted as "Operations Upshot Knothole" a series of nuclear tests at the Nevada Proving Ground, northwest of Las Vegas, Nevada. At the time of the first shot, plaintiffs' herd of sheep some fifty miles northeast of the test site was moving from the winter range in an easterly direction toward shearing and lambing grounds in the vicinity of Cedar City, Utah. During the trip, this herd was within, or near, areas of radioactive fallout resulting from some of these detonations. Following the first, and continuing more or less until after the last shot of the series, abnormal losses of sheep and lambs from the Bulloch herd were noted. Other herds in the same general vicinity suffered similar difficulties which are the subjects of companion suits.

Voluminous testimony and numerous exhibits have been received in evidence. It was thought that the nature of the issues commended the most liberal exploration of the facts consistent with the substantial rights of the parties. The case was presented with high ability and diligence by counsel, and an array of distinguished and informed witnesses appeared. The Government contends that the losses suffered by the Bullochs were the natural result of unprecedented cold weather during the lambing and shearing of sheep, inadequate feeding, unfavorable winter range conditions, and infectious diseases of various types, the combined effects of which were improperly thought by some during the preliminary investigation to comprise irradiation syndromes. The plaintiffs contend that the coincidence of damage and location of the sheep in fallout areas, not only as regards the Bulloch herd but as to sheep similarly located and similarly affected, the inability of preliminary investigators to definitely rule out irradiation or to identify any other cause, the views of the three veterinaries which initially supported plaintiffs' theory in one respect or another, the measured radioactivity in samples from some of the sheep, the failure of subsequent experiments to take into account the peculiar conditions under which the sheep in question were operated, together with other claimed indications of a relationship, all established by preponderate evidence that plaintiffs' abnormal losses were proximately caused, or substantially contributed to, by radiation.

On the law phases of the case, plaintiffs assert that the damage was caused through the negligence of employees of the Government, acting within the scope of their authority and not in the exercise of any discretionary function; and that thus the Government is liable by virtue of the provisions of the Federal Tort Claims Act of August 2, 1946, Title 4, Public Law 601, 79th Congress, as amended, 28 U.S.C.A. §§ 1346, 2671 et seq. The Government contends that there was no negligence of any employee of the Government proximately causing damage to the Bulloch sheep, and that if there were any damages suffered as a result of governmental action, there could be no recovery in any event as they would be in consequence of the exercise of a discretionary function of Government, 28 U.S.C.A. § 2680(a).

I find no reason to depart from, or to repeat, my discussion of the law of the case as determined on the Government's motion to dismiss, Bulloch v. United States of America, D.C., 133 F. Supp. 885. Authoritative decisions since have confirmed the view that because negligent acts or omissions of governmental employees arise in the course of an activity the institution and policy of which are matters for governmental discretion, does not mean that on the operational level there cannot be liability on the part of the Government. Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed.___; United ...


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