Respondents Brief — Miree v. DeKalb County

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IN THE

Supreme Court of the United States

OcTOBER TERM, 1976

No. 76-607

GEORGE HENSON MiREE, ET AL.

Vv.

DEKALB COUNTY, GEORGLA, ET AL.

No. 76-659

JupDITH ANITA PHILLIPS

DeK acs County, GEORGIA, ET AL,

No. 76-700

FrireMAN’s Funp INsupance COMPANY

DEKALB COUNTY, GEORGIA, ET AL.

No. 76-722

WILLIAM MICHAEL FIELDS

. -

DEKALB CoUNTY, GEORGIA, ET AL.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Fifih Circuit

BRIEF OF RESPONDENT DEKALB COUNTY

WeENDALL K. WILLARD

Harvey. Wittarp & ELLiIotr

125 Trinity Place :

Decatur, Georgia 30030

Meapre BrrNs

F. Cray Brsx

Lone, WEINBERG, ANSLEY & WHEELER

3000 Equitable Building

Atlanta, Georgia 30303

Of Counsel for Defendants,

DeKalb County, Georgia

Press or Byron S. ADAMS Parintins, Inc., Wasxurtxncror, D. C.

TABLE OF CONTENTS

Page

BRATBMENT OF THR Came 2... occ ccccccccccccccscccces 1

A, Teiiiel Ger CMEC oc cc cc cccccceccccececces 1

B. Proceedings in Lower Courts ................ 2

iy EN Or ID on dvi cn cocentascésasedus 5

ArGuMENT AND Crration or Grorata AutTuoritry ...... 7

I. Initial Observations ...............-00eeeeeee 7

Il. Under the Constitution and Statutes of Georgia,

DeKalb County Is Immune From Suit in the

Present Actions .............. Couvade pede ee

III. Municipal Immunity Is Not an Issue Before This

IV,

VI.

VIL.

SE eee eee ee ee ee a &

The Allegations of Nuisance Fail To State a

Claim Under Georgia Law ...................

DeKalb County Is Not Liable in Negligence ...

Petitioners Breach of Contract Theory Fails To

State a Claim Upon Which Relief Can Be

I Sune vadbiddbaceaeteedwkceeedbnseseds

A. The Immunity of DeKalb County Is Avail-

able in the Present Actions ...............

B. Under Georgia Law, the Petitioners Are Not

Third-Party Intended Beneficiaries of the

Federal Grant Agreements ...............

C. Under Georgia Law, the Petitioners Have No

Greater Rights Than the Contracting Parties

SE 6.66 64004 45d0R45440enGsscunees

DeKalb County Has Not Waived Its Govern-

Se ED nnd evkddcdwedsedcevessacacc

SuMMARY OF ARGUMENT AND CITATION or Georara Av-

RE aa ee ee ote ee ae

ii Table of Contents Continued

Page

ARGUMENT AND CrraTIon or F'epERAL AUTHORITY ...... 30

De CII vn ou n'y ic ds0s ceubens Senseue 30

II. The Immunity of DeKalb County Reigns Evi-

US GE Be I kno iee ccc cccvcsvcécssvess 32

A. The Immunity Afforded DeKalb County Un-

der the Constitution and Statutes of Georgia

Is Applicable in Federal Law ............. 32

B. The Eleventh Amendment Applies Herein

To Afford DeKalb County Immunity ...... 33

C. There Has Been No Waiver of the Immunity

Afforded DeKalb County ................. 36

IIT. No Private Cause of Action or Private Remedy

Is Available To Petitioners Under Federal Law 39

IV. Under Federal Contract Law, the Petitioners

Are Not Third Party Intended Beneficiaries of

the Broad Assurances Contained in the Federal

Grant Agreements in Issue ...............4-. 43

Summary or Retevant Feperat AUTHORITY .......... 49

Dt h Jeaceeuuiutueareesweueuscduetasevencevas la

a TABLE OF AUTHORITIES

CAsEs:

Arnold v. Walton, 205 Ga. 606, 54 S.E.2d 424 (1949) . .29, 35

Atlanta Gas Light Company v. Jennings, 86 Ga. App.

ee See ED OEP CUED 5 0b oc cccccesectsseseess 26

Austin v. Augusta Terminal Railroad Company, 108

Ga. 671, 34 S.E. 852 (1899) ..........cecceveess 16

Backus v. Chilivis, 236 Ga. 500, 224 S.E.2d 370 (1976) . 24, 27

Bates v. Madison County, 32 Ga. App. 370, 123 S.K. 158

Dn (tcpeaiekves <4 e966) eeuuuule ack ouanaeees 17

Bogart v. United States, 531 F.2d 988 (Ct. Cl. 1976) .. 44

Bossier Parish School Board vy. Lemon, 370 F.2d 847

tie ee ie ee eae Oe 48

Brotherton v. Merritt-Chapman and Scott Corporation,

See Wee Gee CEE COP, TOGG) ccc cccccecvcccccces 43-44

Table of Authorities Continued ili

Page

Caroway v. City of Atlanta, 85 Ga. App. 792, 70 S.K.2d

St ED caw bdo eeeuheseeeees ab eaiaeeeenerent 17

City and County of San Francisco v. Western Airlines,

Inc., 204 Cal. Rptr. 216 (1962) .......ccceeeess 46, 47

City of Inglewood v. City of Los Angeles, 451 F.2d 948

De a a ee 47

City of Macon v. Powell, 133 Ga. App. 907, 213 S.B.2d

63 (1975) TERE RPEPEEE EERE ETT eee 18

Commonwealth of Pennsylvania vy. National Associa-

tion of Flood Insurers, 378 F.Supp. 1339 (M.D.

Pa. 1974), affirmed, 520 F.2d 11 (8d Cir. 1975) .. 44

Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26

DEE Cashed idaeweteescevend ee condones 8, 41, 42, 43

Crowder v. Department of State Parks, 228 Ga. 436,

185 S.K.2d 908 (1971), cert. denied, 406 U.S. 914,

92 S.Ct. 1768, 32 L.Bd.2d 114 (1972) ............ i)

Daye v. Pennsylvania, 483 F.2d 294 (3d Cir. 1973). ..27, 46

Deal vy. Chemical Construction Company, 99 Ga. App.

413, 417, 108 S.B.2d 746 (1959) ................. 28

Deason vy. DeKalb County, 222 Ga. 63, 148 S.F.2d 414

i ee RB rere re me ren eee Pen ee 21

Decatur County v. Praytor, Howton and Wood Con-

tracting Company, 163 Ga. 929, 137 S.E. 247 (1927) 22

DeKalb County v. McFarland, 233 Ga. 196, 154 8.E.2d

i nn -)buantcdu one ba5e cneenkdeasencetans 15

Eastern Airlines v. Town of Islip, 229 N.Y. S.2d 117

DET ¢ichacneGiecaus et shesaeetentase anid bee 46

Edelman vy. Jordan, 415 U.S, 651, 94 S.Ct. 1347, 39

GUD GE MOE s ceccccessassscceaswaens 35, 37, 38

Employees v. Missouri, 411 U.S. 279, 93 S.Ct. 1614, 36

A EE oo weckcekedae seb danseeuns 37

Erie Railroad Company v. Tompkins, 304 U.S. 64, 58

S.Ct. 817, 82 L.Ed. 1188 (1938) ................ 7, %8

Fernandez v. Linea Aeropostal Venezolana, 156 F.Supp.

ek OS PP re 7, 39

Fowler vy. Athens City Water Works Company, 83 Ga.

ee ey EE ED 45 bk ENGR acre chen eek ceees 26

Gabel v. Hughes Air Corporation, 350 F.Supp. 612

eS CE Laka 6 ie BE wuwaeheens oe Meeker 40

German Alliance Insurance Company v. Ilome Water

Supply Company, 226 U.S, 220, 33 S.Ct. 32, 57

EE + <e¢kasncenbhecesss ees 26, 44, 45

iv Table of Authorities Continued

Page

Goodwin v. United States, 517 F.2d 481 (9th Cir. 1975) 44

Hancock County v. Williams, 230 Ga, 723, 198 S.K.2d

NE OEE ELS OR ae Oa See 22

Harlib vy. Lynn, 511 F.2d 51 (7th Cir. 1975) .......--- 44

Harris v. Toocle County School District, 471 F.2d 218

(10th Clr. 1978) ....ccccccccccccscvesececesces 36

Health Facilities Investment, Inc. v. Georgia Depart-

ment of Human Resources, Case No, 31788, — Ga.

—, — S.B.2d — (1977) ....cceeeereeeeee 11-12, 20, 21

Hensley vy. United States, 279 F. Supp. 542 (D. Mont.

SS. occ aucdcccenscnanesénsseewenaeecesavessas 43

Hodae vy. United States, 310 F. Supp. 1090, 1102 (M.D.

Ga. 1969), affirmed, 424 F.2d 545 (5th Cir. 1970)... 44

Holloway v. Macon Gas Light and Water Company,

132 Ga. 387, 64 S.E. 330 (1909) ...........00 ee. 26

Housing Corporation of America v. United States, 468

P.3d GB2 (Ct. Cl. WGTB) 2... cccccccccvecesevecess 44

Howard v. County of Bibb, 127 Ga. 291, 56 S.K. 418

(TOBE) cnccccccccvcccccsevcrccsivecsssegeesss 15, 16

Intracoastal Transportation, Inc. v. Decatur County,

Georgia, 482 F.2d 361 (5th Cir. 1973) ........-. 33, 32

Johnson v. Redevelopment Agency, 317 F.2d 872 (9th

Cle, TD kcckcccccccccwscsesceséneressesscase 44

King v. National Industries, Inc., 512 F.2d 29 (6th Cir.

EK Peer re rey TTT ret TT TT 44

Lee v. Petty, 138 Ga. App. 201, 210 8.F.2d 383 (1974) .20, 24

Lincoln County v. Luning, 133 U.S. 529, 10 8.Ct. 363,

BS LMR. TOS CIGSO) on cccccecscesscscccesessess 34

Lobianco v. Valley Forge Military Academy, 224 F.

Supp. 395 (E.D. Pa. 1963), affirmed, 331 F.2d 851

Ce Te ED 6.6 6b-0.5-b0.0405 50000050 c0sndncess 44

Mahler v. United States, 306 F.2d 713 (3d Cir. 1962).. 44

McCord v. Dixie Aviation Corp., 450 F.2d 1129 (10th

oe; | PeerrerrerrrrryvTrrTeTreTr errs. 8, 39, 40

McCullough v. Redevelopment Authority of Wilkes-

Barre, 522 F.2d 858, 867-868 (3d Cir. 1975) ..... 44

McWhirter Material Handling Company, Inc. v. Geor-

gia Paper Stock Company, 118 Ga. App. 582, 164

ROE fy) PPP cre 24, 25

Miree v. United States, 526 F.2d 679 (5th Cir. 1976) .. 3

Miree v. United States, 588 F.2d 643 (5th Cir. 1976) ..4, 19

Moody vy. McDaniel, 190 F.Supp. 24 (N.D. Miss. 1960) .7, 39

Table of Authorities Continued Vv

Page

Morrison v. Jack Richards Aircraft Company, 328 F.

Supp. 580 (W.D. Okla. 1971) ............. eee eee 7, 39

Morzingo v. Consolidated Construction Company, 171

F. Supp. 396 (E.D. Va. 1959) ..............05.8. 39

Moungey v. Brandt, 250 F.Supp. 445 (W.D. Wis. 1966) .7, 39

Nalley vy. Carroll County, 135 Ga. 835, 70 S.E. 788

SU, hie ME aes edad kaos eee denmes 15

National Leaque of Cities v. Usery, — U.S. —, 96 S.Ct.

—, 49 L.Bd.2d 245 (1976) .......... ccc ccc eee 33

National Railroad Passenger Corporation vy. National

Association of Railroad Passengers, 414 U.S, 453,

94. S.Ct. 690, 38 L.Ed.2d 646 (1974) ........0..... 41

Nelms v. State Farm Mutual Insurance ( ‘ompany, 463

F.2d 1190 (5th Cir. 1972) ............0005. aes 29

Oregon v. Corvallis Sand and Gravel Company, — U.S.

—, 97 S.Ct. —, 50 L.Ed.2d 530 (1977) ........... 33

Palmer vy. Ohio, 248 U.S. 32, 39 S.Ct. 16, 63 L.Ed. 108

ERA I EE e OP i et ie aan wn ek meh gi ee hee 12

Parden v. Terminal Railway, 377 U.S. 184, 84 S.Ct.

1207, 12 L.Eid.2d 233 (1964) .............33, 36, 37, 38

In re Paris Air Crash, 399 F.Supp. 732 (C.D. Cal. 1975) 40

Polansky vy. Transworld Airlines, Inc., 523 F.2d 332

I a a iil teak ak le ia elo 8, 39

Port of New York Authority v. Eastern Airlines, Inc.,

259 F. Supp. 745 (E.D. N.Y. 1966) ............ 46, 47

Porter v. Southeastern Aviation, Inc., 191 F.Supp. 42 '

I I 7, 39

Purser v. Dodge County, 188 Ga. 250, 3 S.B.2d 574

DEC URGRU eee Causes i ts 20, 23, 24, 27

Rapp v. Eastern Airlines, Inc., 264 F. Supp. 673 (E.D.

WEEE dUAG Guha Wil dukeceagoduGhe ed uvcoces 47

Rauch v. United Instruments, 3d Cir. (12-30-76, Case

I ot ears PRE 40

Red Star Towing and Transportation Company v. De-

partment of Transportation of the State of New

Jersey, 423 F.2d 104 (3d Cir. 1970) ............ 32, 33

Revels y. Tift County, 235 Ga. 333, 219 S.B.2d 445

I Se eee ee ek ee ae 11, 17, 29, 35

Roberson v. United States, 382 F.2d 714 (9th Cir, 1962) 44

Rogers v. Ray Gardner Flying Service, Inc., 435 F.2d

1389 (5th Cir. 1970) .................. "..7, 32, 38, 39

vi Table of Authorities Continued

| Page

Rosdail v. Western Aviation Company, Inc., 297 ms -

Supp. 681 (D. Colo. 1969) ....... 6... cece neers «+7, 3

Sanz y toes Aviation, Inc., 511 F.2d 1027 (9th Cir.

SUE: dndeeenensstadesesseceasees ieee e eens 8, 39, 40

Sayre y. United States, 282 F.Supp. 175 (N.D. Ohio -

BED AoclwendGeesudecetenssneddesrguetesendes

Seaboard Airline Railroad v. County of Crisp of the

State of Georgia, 280 F.2d “ (5th a a .. 48

Securities Investors Protection Corporation v. jar.

. bour, 421 U.S. 412, 95 S.Ct. 1733, 44 L.Kd.2d 2638

SEE wdeavccecdeuanes es se eeecees sate acess 7 41

Seward v. South Florida Securities, 96 F.2d 964 (5th

oe rrr errr rr rrr err Ty TTT Try tt 49

Sheley v. Board of Education, 132 Ga.App. 314, 208

S.2d 126 (1974), affirmed, 233 Ga. 517, 212 S.E.

GE CED vad ncdsdecensdchteseengss tees coos 15

Sheley v. Board ), Public Education, 223 Ga. 487, 212 a

EE CTE ohccacusccenceveessncncssose :

Sim a v. Wectera y ssurance Company, 205 F.2d 815

SE GE, ED 5 doe cesc vce ccecees cccbesesesses 49

Smith v. Ledbetter Brothers, Inc., 111 Ga. App. 238,

BES Pe Ge CUED on cccvacccvcccsvcesccess _. 24, 25

Southern Airways v. DeKalb County, 102 Ga. App. 850,

BD ee OE MD hve cc nccccnecesnces scenes

Stanturf v. Sipes, 224 F. Supp. 883 (W.D. Mo. 1963),

affirmed, 335 F.2d 224 (8th Cir. 1964) .......... 44

In re: State of New York, 256 U.S. 490, 41 S.Ct. 588,

iP A EE COE conch ceusdbcedvecosgsseuees 12

Stewart v. Gainesville Glass Company, 131 Ga. App.

747, 752, 206 S.F.2d 857 (1974), affirmed, 233 Ga.

Bee Bee ME SEE CEOEUD ccc cocccccsssciss 23, 25, 27

Taylor v. King, 104 Ga. App. 589, 122 S.E.2d 265

PE scitcc ld eceteehehenekbusescuewhievens 17-18

Troup County Electric Membership Corporation v.

Georgia Power Company, 229 Ga. 348, 191 S.E.2d

BB (IDTZ) onc cvcsccccccscccccscssccscsssscoess 13

United Publishing & Printing Corporation v. Horan,

268 F. Supp. 948 (D. Conn. 1967) ............... 44

United States v. Orleans, — U.S. —, 96 S.Ct. 1971, 48

Se i CPD oc ctncas cusaseeeranseeves 45, 46

Ware County v. Cason, 189 Ga. 78, 5 S.E.2d 339

SE. o6tewsdebdisnddncdweseekseesnesbeabenes 14, 17

Table of Authorities Continued Vil

Page

West v. Morrison Knudsen Company, 451 F.2d 493

Ok Se PRR er rare 43

Wolf v. Transworld Airlines, Inc., 544 F.2d 134 (3d

I shia Wk oad herd tel 39

Williams v. Georgia Power Company, 233 Ga. 517, 212

UD goog cies 15, 22

Williamson Towing Company, Inc. v. Illinois, 534 F.2d

i OR ee 32, 33

STATUTES:

Ga. Code Ann. § 2-3710 .............ccc cece eens. 9, 20, 21

im, Ce BO, BIS oon cc cc cccccccccccccecenece i)

Ga. Code Amn, § 3-108° 5°... 0... occ ccc cece cece 23

Ga. Code Ann. § 11-201, ef Di Vasdubeeeteddenenecae 18

Ga. Code Ann. § 23-1502 ...... eke ecenndacneerel 8, 9, 20

Ga, Code Amm. § GB-3O1 2... 6. cc ccc ccc cence cceecce 13

DeKalb County Code, § 3-25 ...............0000055. 30

OF WEE TF ME caA cc dacunccessiceedadecsaucene: 41

MISCELLANEOUS:

S. 961, 91st Cong., Ist Sess. ....................... 41,42

51 N.Y.U. Law Review, 231 at 238 .................. 4]

Restatement of Contracts § 145 ................... 26, 43

Kleventh Amendment, Constitution of the United

og SR: LOPS G REISS eh nie

IN THE

Supreme Court of the United States

OcTOBER TERM, 1976

No. 76-607

GrorGcE HENSON MIREER, ET AL.

Vv.

DEKALB COUNTY, GEORGIA, ET AL.

No. 76-659

JupITH ANITA PHILLIPS

DK ALB COUNTY, GEORGIA, ET AL.

No. 76-700

FirEMAN’S FuNnp INSURANCE COMPANY

DeKALB COUNTY, GEORGIA, ET AL.

No. 76-722

WinLnLiAM MICHAEL FIELDS

Vv.

DEKALB COUNTY, GEORGIA, ET AL.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF OF RESPONDENT DEKALB COUNTY

STATEMENT OF THE CASE

INITIAL OBSERVATIONS

Respondent, DEKALB County, GroraiA (hereinafter

‘DeKalb County’’) files this Brief in response to four

(4) Petitions for Writ of Certiorari and subsequently

filed briefs in four (4) separate actions styled as fol-

lows: George Henson Mirce, ct al. vy. DeKalb County

No. 76-607 (hereinafter ‘‘Miree’); Judith Anita Phil-

lips, No. 76-659 (hereinafter ** Phillips’’) ; Fireman’s

Fund Insurance Company Vv. DeKalb County, No, T6-

700 (hereinafter ‘‘Fireman’s Fund’); and William

Michael Fields vy. DeKalb County, No. 76-722 (herein-

after ** Fields’’).

This Brief will encompass the response of DeKalb

County to each of the separately prepared and filed

Petitions and subsequently prepared and supporting

Briefs. Only a brief perusal of the written argument

of the several Petitions will demonstrate a diversity of

approach and emphasis on the extensive legal ques-

tions presented for this Court’s review. Thus, DeKalb

County is required, by the complexity and extent of the

legal issues before this Court, to prepare a brief fully

outlining all of the legal authority available for this

Court’s consideration.

DeKalb County is not unmindful of the desire of this

Court as to the length of written briefs. But, with the

limitless approach of the several Petitions coupled

with DeKalb County’s unawareness of those issues of

interest to the Court, it is compelled to prepare an

appropriate and somewhat lengthy, reply. However,

for ease of reference, DeKalb County will departmen-

talize its brief by specific headings and arguments.

PROCEEDINGS IN LOWER COURTS

The Petitions presently before this Court arise out

of events which oceurred on or about February 26,

1973. Each of the actions before this Court was insti-

tuted in the United States District Court for the North-

ern District of Georgia, Atlanta Division, against

DeKalb County and the United States of America.

Kach of the initial complaints alleged diversity of citi-

zenship jurisdiction, as it related to DeKalb County.

Moreover, the initial complaints, in focusing upon

Georgia Law for the creation of the causes of action

and remedies, alleged that DeKalb County was liable

to the present Petitioners under the legal theories of

negligence, nuisanee and breach of Federal Grant

Agreements to which the Petitioners were alleged

third-party intended beneficiaries.

DeKalb County, concurrently with the filing of re-

sponsive pleadings, filed Motions to Dismiss each of

the present actions. The basis of Said Motions was

the immunity afforded DeKalb County by the Con-

stitution and Laws of Georgia. The Honorable Wil-

liam C. O’Welley, United States District Judge granted

said Motions in unreported Order dated June 27, 1974

and September 24, 1974. In these unreported opin-

ions, District Judge O’ Kelley held that the application

of Georgia Law to these diversity aetions precluded

the present actions under the theories propounded by

the initial complaints.

The present Petitioners appealed the entry of judg-

ment to the United States Court of Appeals for the

Fifth Cireuit. The initial panel comprised of Cireuit

Judges Godbold, Dyer and Morgan, held in Miree v.

United States, 526 F.2d 679 (Sth Cir. 1976), that

DeKalb County was afforded immunity from the pres-

ent actions under the theories of negligence and nuis-

ance, However, that initial panel split over the issue

of the rights of the Petitioners as third-party intended

beneficiaries of the Federal Grant Agreements in issue.

The majority of the initial panel, comprising Cireuit

Judges Godbold and Morgan, asserted that Georgia

Law applied to the determination of the rights and

responsibilities of the Grant Agreements in issue, and

that Georgia Law did not protect DeKalb County from

suit under the circumstances. Cireuit Judge Dyer

dissented from the last assertion, pointing out that

Federal Law should apply te the interpretation of the

Grant Agreements, that Federal Law and the contracts

in issue created no rights or remedies for the Petition-

ers, and that an application of Georgia Law would not

change this result. DeKalb County promptly filed a

vigorous Motion for Re-Hearing, asserting that under

either Georgia or Federal Law, DeKalb County was

not liable to the Petitioners herein. A re-hearing en

bane was granted, limiting the issues to the third-party

intended beneficiary theory, and in Miree vy. United

States, 5388 F.2d 643 (5th Cir. 1976), the majority of

the Court adopted the previous dissent of Circuit Judge

Dyer. The result of this adoptive ruling was an affirm-

ance of District Judge O’Kelley’s orders and judg-

ments, dismissing DeKalb County from the present

actions.

DeKalb County desires to call this Court’s attention

to one other occurrence in the Lower Courts. The

Miree brief, at p. 42, misleads this Court into believing

that DeKalb County is still a party to the present ae-

tions in the Lower Court pursuant to cross-claims initi-

ated by the United States. This is clearly incorrect

as attached to this Brief, marked Exhibit ‘‘A’’, is a

certified copy of an October 12, 1976 Order of District

Judge O'’Kellev specifically holding that Delhalb

County is no longer a party below and not subject to re-

quests for admission. The United States has chosen not

to appeal the entry of judgment on behalf of DeKalb

County and thus the cross-claims noted above are with-

out present. effect.

a ae

Cc.

STATEMENT OF FACTS

The Petitioners have taken diverse approaches to

the presentation of a concise factual recitation, rang-

ing from the exhausting narrative contained in the

Fireman’s Fund Petition and brief to the succinct

account depicted in the Miree Petition. Needless to

say, DeKalb County does take strong issue with many

of the pleaded and conclusory ‘‘facts’’, asserted as true

and contained within the various Petitions, particu-

larly the additional ‘‘exhibits’’ attached to the Fire-

man’s Fund brief, which were not part of the Joint

Appendix. DeKalb County will not burden the Court

or utilize further pagination, to bring the numerous

conelusory allegations and unwarranted deductions of

fact to the attention of this Court. DeKalb County

finds the selective utilization of the ‘‘exhibits’’ con-

tained within the Fireman’s Fund brief, apparently

beyond the Rules of this Court, to be a clear and un-

equivocal effort to prejudice this Court with matters

beyond the appellate record, and without bearing on

the multitude of legal, non-factual, issues before this

Court. DeKalb County generally embraces as its fae-

tual statement, the factual account contained within

the two (2) Orders entered by District Judge William

(. O’WKelley, and the factual background set forth by

Cireuit Judge Morgan, in the initial panel opinion,

reported at 526 F.2d 679, at 681.

However, DeKalb County does wish to inform this

Court of certain factual aspects of these eases which

have heretofore been omitted by Petitioners. First,

DeKalb County must take strong issue with the con-

tinual suggestion of Petitioners that aviation is the

sole issue before this Court. Even a brief review of

the diversity complaints in issue will demonstrate that

DeKalb County is alleged to have been negligent, to

have created a nuisance and to have breached the ap-

plicable agreements, by the County’s operation of a

sanitary landfill on County property adjacent to an

airport, also resting on County property. Clearly, the

central issue in this case is the operation of a sanitary

landfill, whieh is obviously a local government fune-

tion, lacking in any federal consequence except in terms

of the environment, not involved herein. The inelusion

of exhibits in the Fireman’s Fund Brief on the Merits,

which were not part of any record before any other

Court in this matter, suecinctly show that the precise

subject matter of these actions is the sanitary landfill.

In other words, DeKalb County is sought to be held

responsible for its ownership of land, part of which

was dedicated to the De Kalb-Peachtree Airport and on

part of which was situated the sanitary landfill in issue.

The factum of the sanitary landfill, and its central

focus herein, raise a second point of misconception,

promoted by the Petitioners. The Petitioners belabor

this Court with the implication that the County was

operating all this land as a ‘‘business’’, for alleged

**profit’’, contending that the shield of immunity is thus

tarnished. The operation of a sanitary landfill on

County property, utilized for the purposes of collection

and disposal of waste from the County is, bevond qnes-

tion, a purely local governmental task, bevond any im-

plied claim of waiver of immunity. The operation of

the airport in issue, as a secondary aspect to this case,

was at a substantial loss to the County in 1971 and 1972

( A-128, 129, 130).

ARGUMENT AND CITATION OF

GEORGIA AUTHORITY

INITIAL OBSERVATIONS -

DeKalb County believes that certain relevant consid-

erations to this Court’s determination have been over-

looked to date. 'The most pertinent of these matters, is

the fact that the present actions were instituted in the

United States District Court for the Northern District

of Georgia, Atlanta Division, upon the basis of divers-

ity of citizenship as it pertains to DehKalb County.

(A-9, 107, 138, 257). Thus, the initial plaintiff's sought

to invoke Georgia common and statutory Law theories

of negligence, nuisance and breach of contract, as well

as Georgia statutory remedies for wrongful death,

personal injuries and property damage. The Petition-

ers herein looked to Georgia law to create a private

cause of action and a private remedy. This, they were

required to do, under Erie Railroad Company v. Tomp-

kins, 304 U.S. 64, 58 S.Ct. 817, 82 Led. 1188 (1938)

and for the more salient reasons that in the Federal

Aviation enabling legislation, as well as the Federal

Regulatory scheme, there are no private causes of ac-

tion or civil remedies explicitly created, particularly in

wrongful death actions. Moungey v. Brandt, 250 F.

Supp. 445 (W.D. Wis. 1966) ; Fernandez v. Linea Aero-

postal Venezolana, 156 F. Supp. 94 (S.D. N.Y. 1957) ;

Rosdail v. Western Aviation Company, Ine., 297 F.

Supp. 681 (D. Colo. 1969); Porter v. Southeastern

Aviation, Inc., 191 F. Supp. 42 (M.D. Tenn. 1961) ;

Moody v. McDaniel, 190 F. Supp. 24 (N.D. Miss. 1960) ;

Morrison v. Jack Richards Aircraft Company, 328 F.

Supp. 580 (W.D. Okla. 1971) ; Rogers v. Ray Gardner

Flying Service, Inc., 435 F.2d. 1389 (5th Cir. 1970) ;

McCord y. Dixie Aviation Corp., 450 F.2d 1129 (10th

Cir. 1971); Polansky vy. Transworld Atrlines, Ine, 523

F.2d 332 (8rd Cir. 1975); Sanz v. Renton Aviation,

Tne., 511 F.2d 1027 (9th Cir. 1975); Velineh v. Worley,

284 F. Supp. 679 (E.D. Va. 1968). See also Cort vy. Ash

422 U.S. 66, 95 S.Ct, 2080, 45 L.Ed. 2d 26 (1975).

DeKalb County presents this initial observation be-

cause no argument is advanced which denied the exis-

tence of governmental immunity under Georgia Law.

The arguments advanced by Petitioners seek to avoid

or bar the application of the doctrine to the actions

presently before this Court. Thus, the initial

eomplaints were tiled, seeking all the rights and

remedies available under Georgia Law, while attempt-

ing to avoid the burdens flowing therefrom, DeKalb

County contends that it would be incongruous for this

Court to permit the application of Georgia private

‘auses of action and remedies in Georgia Federal Court

Without recognition of the defenses available to this

Respondent, particularly when the Petitioners have

sought the application of Georgia Law for the creation

of private rights and remedies.

With these initial observations, as to the application

of Georgia Law, it is appropriate that this Brief turn

its attention to a recounting of applicable Georgia au-

thority.

II.

UNDER THE CONSTITUTION AND STATUTES OF GEOR-

GIA, DEKALB COUNTY IS IMMUNE FROM SUIT IN

THE PRESENT ACTIONS

In Georgia, the governmental immunity of a county

has its basis both in statutory Law (Ga. Code Ann.

§ 23-1502) and in the Constitution of Georgia (Ga. Code

Hy)

Ann. § 2-3710, Ga. Laws, 1973, p. 1489, ratified by elee-

torate, 1974 General Election; Ga. Code Ann, § 2-8003),

The statutory basis of the immunity doctrine, as con-

tained in Georgia Code Ann. § 25-1502, clearly and pre-

cisely provides as follows:

“A county is not lable to suit for cny cause of

action unless made so by statute.”

The doctrine of immunity has received recent treat-

ment and review by the Supreme Court of Georgia.

Prior to the constitutionalization of the doctrine, the

Supreme Court of Georgia in Crowder v. Department

of State Parks, 228 Ga. 436, 185 SA6.2d 908 (1971),

cert, denied, 406 US. 914, 92S. Ct. 1768, 82 L.Ed.2d 113

(1972), held, as follows:

The plaintiff has requested that we review and

overrule the full bench decisions of this Court set

forth in Division | and others recognizing this

doctrine of sovereign immuiaity.

This request requires reference to some events

preceding these decisions.

The doctrine of sovereign immunity was imbed-

ded in the Common Law of England at the time of

the American Revolution.

Georgia adopted this doctrine by virtue of its

adoption of the Common Law of England by Act

of General Assembly approved February 25, 1784.

(Citations omitted).

In this connection, this Court has held that the

common law of force prior to May 14, 1776, was

adopted as the law of this State by the act of

February 25, 1784, except where modified by stat-

utes or not adjusted to the conditions or system of

government existing here. (Citations omitted). We

point out here that the doctrine of sovereign im-

munity has not been modified by statute.

It does not, we unhesitatingly hold, violate either

the State or Federal Constitution.

This doctrine has continued in force in this State

since 1784.

Whether it should now be abrogated is a matter

of publie policy which addresses itself to the Legis-

lative, not the Judicial, branch of our State Gov-

ernment. ...

We therefore hold that the complaint fails to

set forth a claim for relief either in tort, contract

or for nuisance.

Thereafter, the 1973 Session of the General Assem-

bly of Georgia, approved an Amendment to the Georgia

Constitution (Georgia Acts, 1973, p. 1489), which was

ratified by the electorate in November, 1974. This

Amendment, appearing as Ga. Code Ann. § 2-3710, es-

tablishes a State Court of Claims for resolution of

matters against the State or its political subdivision,

and expressly reserves the immunity rule for the pro-

tection of these governmental bodies. Shortly after the

ratification of this Constitutional Amendment, the Su-

preme Court of Georgia was presented with another

immunity attack for claims arising before the ratifica-

tion of the Amendment. In Sheley v. Board of Public

Education, 233 Ga, 487, 212 S.E. 2d 627 (1975), the

Georgia Supreme Court held:

‘‘We granted applications for Writs of Certio-

rari to the Court of Appeals in these two eases

for the purpose of reassessing the rule of immun-

ity of the State, its agencies, and subdivisions from

liability for tort claims presented in our courts.

Regardless of the merits or demerits of the immun-

ity rule, it is conceded that it has existed through-

out this State’s history except in those situations

where it has been eliminated by statutes enacted

by the Georgia General Assembly... .

... we have again reviewed this issue in the

context of these two cases and we conclude that,

because of the Amendment to the Georgia Consti-

tution proposed by the 1973 General Assembly and

ratified by the electorate at the 1974 General Elee-

tion, changes in the immunity rule, and the extent

of such changes and in what circumstances, are

now solely within the domain of the General As-

sembly of Georgia.

Because of the adoption of this Constitutional

Amendment, and it is now effective as part of our

Constitution, we hold that the immunity rule as it

has heretofore existed in this State cannot be abro-

gated or modified by this Court. The immunity

rule now has constitutional status and solutions to

the inequitable problems that it has posed and con-

tinues to pose must now be effected by the General

Assembly ...

More recently, the Supreme Court of Georgia was

presented with an action against Tift County, Georgia,

for the alleged slip and fall of a visitor to the county

courthouse. In Revels v. Tift County, 235 Ga. 333,

219 S.E. 2d 445 (1975), the Supreme Court of Georgia

was faced with the assertion of governmental immun-

ity and the contention that the doctrine violated appli-

cable provisions of the Georgia and Federal Constitu-

tions. The Georgia Supreme Court rejected the conten-

tion that the immunity rule violated either constitution

and again affirmed the immunity rule.

As recently as February 9, 1977, the Georgia Su-

preme Court has again upheld and applied immunity in

Health Facilities Investments, Inc. vy. Georgia Depart-

12 /

ment of Human Resources, No. 31788, 238 Ga. —,

— §.E. 2d — (1977), citing from the above-listed deci-

sions and the constitutignalization of the immunity

rule. /

Clearly, the issues raised by any Due Process or

Eqnal Protection arguments herein have been adjudi-

eated adversely to Petitioners’ positions by the Georgia

Supreme Court. This Court has consistently upheld

the doctrine of governmental immunity; Palmer v.

Ohio, 248 U.S. 32, 39 S. Ct. 16, 63 L. Ed. 108 (1918) ;

In Re: State of New York, 256 U.S. 490, 41 8. Ct.

588, 65 L. Ed. 1057 (1920), and has particularly viewed

the issue as one calling for local determination. Palmer

v. Ohio, supra. The highest court of Georgia has had

ample opportunity to abrogate the doctrine of immu-

nity, but has chosen rather to adhere to and strengthen

the intent and application of the doctrine. Moreover,

it is clear from the above-noted Georgia decisions that

the Georgia Judiciary has thoroughly reviewed and

weighed the countervailing factors of the immunity

rule versus a system of government without immunity.

The Georgia courts have chosen to protect the treasury

and stability of government and have followed the

course of immunity. With the constitutionalization of

the immunity rule, at the behest of both the Genera!

Assembly of Georgia and the people of Georgia, the

rule is simply beyond reproach by Georgia courts, and

likewise courts construing or applying Georgia Law.

DeKalb County would thus show that even if a

proper constitutional attack were lodged in this Court

or the trial court, which DeKalb County denies is the

case, the above-noted authority plainly supports the

doctrine of immunity and its application to the facts

presently before this Court.

nies.

A te tt

NORA yt AN" AGO Sd Bite

It.

MUNICIPAL IMMUNITY IS NOT AN ISSUE BEFORE

THIS COURT

Several of the Petitions and supporting Briefs make

reference to a distinction in the immunity rule afforded

to counties and municipalities in Georgia, suggestively

alleging that such a refinement violates constitutional

provisions. DeKalb County would submit that the

recent constitutionalization of the immunity rule, out-

lined previously in this Brief, may have application to

municipal immunity, as well.

However, DeKalb County does admit that the statu-

tory basis for municipality immunity, contained in

Georgia Code Ann. § 69-301, does contrast from statu-

tory immunity afforded a county. The basis for the

distinctive features and applications in these immunity

rules was the subject of the Georgia Supreme Court’s

opinion in Troup County Electric Membership Cor-

poration v. Georgia Power Company, 229 Ga. 348, 191

S.E. 2d 33 (1972), wherein that Court held:

‘*Counties are subdivisions of the State Govern-

ment to which the State parcels its duty of govern-

ing the people. (Citations omitted). They are

local, legal, political subdivisions of the State,

created out of its territory, and are arms of the

State, created, organized, and existing for civil and

political purposes, particularly for the purpose of

administering locally the general powers and poli-

cies of the State. (Citations omitted) ...On the

other hand, municipalities are creatures of the

Legislature, and their existence may be establish-

ed, altered, amended, enlarged or diminished, or

utterly abolished by the Legislature.”’

Circuit Judge Morgan, in the portion of the initial

panel opinion which was adopted by the en bane Court

of Appeals, noted that this distinction ‘‘has long been

recognized by the Georgia Courts,”’ relying upon deci-

sions such as Ware County v. Cason, 189 Ga. 78, 5 S.E.

2d 339 (1939), holding a county hospital immune from

suit when city hospitals had no such immunity.

Thusly stated, counties were created as ‘‘arms of

the State’’ at the local level. Counties must bear the

State’s burdens within their respective boundaries,

while the municipalities, existing within the counties,

as legislative creatures, can select from the various

powers and duties available at the time of incorpora-

tion and reject those liabilities which will either be

inapplicable for the particular location or simply un-

wanted by the incorporators who can rely upon the

counties. Municipalities can come and go while coun-

ties must exist with and carry out the burdens

and policies of the State. The distinctive liabili-

ties of each are rational and imbedded in the law,

applicable to each and every county in Georgia. There-

fore, District Judge O’Kelley and the entire Fifth Cir-

cuit Court of Appeals were particularly correct in the

determination and application of this distinction, and

in the non-application of a multitude of municipality

decisions cited by appellants therein and Petitioners

herein.

IV.

THE ALLEGATIONS OF NUISANCE FAIL TO STATE A

CLAIM UNDER GEORGIA LAW

One of the Petitioners’ theories of recovery in the

initial complaints was nuisanee. As discussed earlier

in Brief, the Petitioners’ sought to apply a Georgia

cause of action for nuisance for two (2) obvious

_ reasons, i.e., the diversity nature of this action and the

. penitent

Pe et eee ee er a eee Oe eee 8S Ze

lack of a private cause of action or remedy for nuisance

in Federal Law. Thus, a review of Georgia authority

on this point is appropriate.

It is a clearly established principal of Georgia Law

that a county cannot be held liable for damages for a

cause of action in nuisance as is presently asserted by

the Petitioners herein. Howard v. County of Bibb,

127 Ga. 291, 56 S.E. 418 (1906); Sheley v. Board of

Education, 132 Ga. App. 314, 208 S.E. 2d 126 (1974),

affirmed, 233 Ga. 487, 212 S.E. 2d 627 (1975) ; Williams

v. Georgia Power Company, 233 Ga. 517, 212 S.E. 2d

348 (1975).

DeKalb County would readily admit that authority

exists for the maintenance of equitable actions or for

actions under the taxing powers or actions for the

unconstitutional taking or damaging of property for

public purposes. The decisions of Nalley vy. Carroll

County, 135 Ga. 835, 70 S.E. 788 (1911) and DeKalb

County v. McFarland, 223 Ga. 196, 154 S.E. 2d 203

(1967), primarily fall in the third category noted

above, i.e., taking of property for public purposes, and

this was recognized and applied by “istrict Judge

O’Kelley and Circuit Judge Morgan [in part two of the

initial panel opinion, (526 F.2d 679) adopted by en

bane Court of Appeals without dissent, (538 F.2d

643) ]. The correctness of this approach is clearly seen

from a review of the wrongful death action of Williams

v. Georgia Power Company, supra, wherein the Georgia

Supreme Court held:

“The Appellants argue, however, that the

County is liable in this case for the maintenance

of a nuisance and relies on the cases of Nalley v.

Carroll County, supra; DeKalb County v. McFar-

land, supra, and Town of Fort Oglethrope v.

Phillips, 224 Ga, 834, 165 S.E. 2d 141. There is no

merit in this contention. The Nalley and McFar-

land cases involved nuisances which amounted to

takings of property by the counties without pay-

ing the owners compensation. The Phillips case

involved a municipality and not a county.’’

Moreover, even if a cause of action were available to

the Petitioners herein, under a theory of nuisance,

Georgia Law would not provide a remedy for wrongful

death, personal injury, or for damage to personal

property (the airplane) because, in Georgia, the rule

appears to be well settled that the measure of damages

for any injuries caused by a county’s construction of

public improvements and other projects is limited to

actual depreciation and the market value of any real

property affected by the improvements and projects.

Thus, in Howard v. County of Bibb, supra, and Austin

v. Augusta Terminal Railroad Company, 108 Ga, 671,

34 S.E. 852 (1899), the Supreme Court of Georgia held

that in an action for the alleged creation and/or main-

tenance of a nuisance against the county, while damage

to land itself was compensable on the theory of unjust

taking without payment of adequate compensation,

incidental damages flowing from the alleged nuisance

were not.

Thus, a review of Georgia Law, sought to be applied

by Petitioners herein, evidences that no cause of action

or remedy is available to the Petitioners and the dis-

missal of this theory from the complaints was properly

affirmed by the entire Fifth Circuit.

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Vv.

DEKALB COUNTY IS NOT LIABLE IN NEGLIGENCE

The pleadings before this Court alleged that DeKalb

County was negligent not in its operation of

the DeKalb-Peachtree Airport, but in the County’s

operation of a sanitary landfill in close proximity to

the Airport. Again, it must be noted that Georgia

common and statutory Law, not Federal Law, is

asserted as the alleged creator of a cause of action and

a remedy. However, even a brief review of pertinent

Georgia authority establishes that no cause of action

or remedy is available against a county upon the theory

of negligence. Ware County v. Cason, 189 Ga. 78, 5

S.E. 2d 339 (1939); Bates v. Madison County, 32 Ga.

App. 370, 123 S.E. 158 (1924) (a county not liable for

negligent performance of duty even when duty imposed

by statute); Revels v Tift County, 235 Ga. 333, 219

S.E. 2d 445 (1975).

Specific attention is directed to the fairly recent de-

cision of Revels v. Tift County, supra. In that case,

the Supreme Court of Georgia was confronted with a

civil action against Tift County for negligence in the

slip and fall of the plaintiff in the county courthouse.

The Georgia Supreme Court re-iterated that a negli-

gence action against a county was simply unavailable

to the plaintiffs therein, due to the county’s unwaived

immunity. The Court further disposed of the appel-

lants’ contention that immunity was violative of State

and Federal Constitutions, by concluding that such a

presentation was without merit.

The Petitioners herein have previously relied upon

the airport decisions of Caroway v. City of Atlanta,

85 Ga. App. 792, 70 S.E. 2d 126 (1952) ; Taylor v. King,

104 Ga. App. 589, 122 S.E. 2d 265 (1961); City of Ma-

con V. Powell, 133 Ga. App. 907, 213 S.E. 2d 62 (1975) ;

and Southern Airways v. DeKalb County, 102 Ga. App.

850, 118 S.E. 2d 234 (1960). Nome of the above-noted

decisions are from the Georgia Supreme Court and

three (3) of the decisions involve municipalities, mak-

ing them inapplicable for this Court’s determination.

The Southern Airways v. DeKalb County, supra, deci-

sion is factually distinguishable, in that the County

leased the entire tract of land constituting the Camp

Gordon Airport and a dispute arose over leasehold in-

terest, and that Court simply declared the respective

rights of the litigants. This interpretation of that line

of alleged authority is consistent with the interpreta-

tions rendered by District Judge O’Kelley in the Sep-

tember 24, 1974 Orders, and by Cireuit Judge Morgan

in Part I of the panel opinion (526 F.2d 679), subse

quently adopted, en bane, without dissent, (538 F.2d

643). Moreover, the adoption, by the Georgia General

Assembly, of the Uniform Airports Law (UAL) ecodi-

fied as Ga. Code Ann. § 11-201, et seq., not only strength-

ens, but specifically provides for the immunity of De-

Kalb County, as follows:

‘“*Ga. Code Ann. § 11-202. Any lands acquired,

or owned, leased, controlled, or occupied by such

counties, municipalities, or other political subdi-

visions, for the purpose or purposes enumerated

in § 11-201, shall and are hereby declared to be ac-

quired, owned, leased, controlled, or occupied for

public, governmental, and municipal purposes.”’

Additionally, the framework of UAL provides for

civil enforcement by a ‘‘political subdivision or agen-

ey,’’ (Code § 11-420) and criminal enforcement by the

State (Code § 11-9902), but no mention of any private

en en ees meee te eee ke

eauses of action or remedies, with Judicial review

available only upon exhaustion of administrative reme-

dies. (Code § 11-419).

Thus, the dismissal of the negligence theories con-

tained within the complaints was properly affirmed by

the entire Fifth Circuit.

VI.

PETITIONERS BREACH OF CONTRACT THEORY FAILS

TO STATE A CLAIM UPON WHICH RELIEF CAN BE

GRANTED

The Petitioners’ theory of a third-party intended

beneficiary of the Federal Grant Agreements received

substantial and specific review by the Fifth Circuit.

The initial panel, cited at 526 F.2d 679, split over this

issue, with the majority, composed of Circuit Judges

Morgan and Godbold, reviewing Georgia Law and

finding that a claim was stated against DeKalb County.

Cireuit Judge Dyer dissented, 526 F.2d, at 686, sug-

gesting that Federal Law applied and that even if

Georgia Law applied, no claim would be stated. De-

Kalb County petitioned the Court for a re-hearing on

this specific issue. The Court granted DeKalb County’s

Petition and presented counsel with this issue:

‘‘Whether DeKalb County can be held liable by

Plaintiffs as third-party beneficiaries of the con-

tract between Federal Aviation Administration

and DeKalb County.”’

With this issue, the en bane court adopted the dis-

sent of Cireuit Judge Dyer. Miree v. United States,

538 F.2d 643 (5th Cir. 1976). DeKalb County urges

that the position of Circuit Judge Dyer and a majority

of the Fifth Circuit is correct, in that, under a review

of either Georgia or Federal Law, DeKalb County is

not liable.

The Immunity of DeKalb County Is Available in the Present

Previous portions of this Brief have fully informed

this Court of the statutory (Ga. Code Ann. § 23-1502)

and Constitutional (Ga. Code Ann. § 2-3710) basis of

the immunity doctrine. As will be more fully expressed

below, the immunity of the County reigns evident in

the Petitioners’ allegations of third-party intended

beneficiaries status.

DeKalb County contends that its immunity from suit

is clearly applicable to the facts at bar. Purser v.

Dodge County, 188 Ga. 250, 3 S.E. 2d 574 (1939); Lee

v. Petty, 133 Ga. App. 201, 210 S.E.2d 383 (1974);

and Health Facilities Investments, Inc. v. Georgia

Department of Human Resources, Supreme Court No.

31788, February 9, 1977, 238 Ga. —,— S.E.2d. In Pur-

ser Vv. Dodge County, supra, the Georgia Supreme Court

imposed county governmental immunity upon allega-

tions of third-party beneficiary status. In Lee v. Petty,

supra, the Georgia Court of Appeals found the third-

party beneficiary claims ‘‘extremely doubtful’’ under

the county immunity rule. In Health Facilities Invest-

ments, Inc. v. Georgia Department of Human Re-

sources, the Georgia Supreme Court, had before it alle-

gations that the Appellant therein had contracted di-

rectly with the State Department of Human Resources

(DHR) during 1974 and 1975 to provide ‘‘skilled nurs-

ing facility services to State medical assistance (Medi-

caid) patients.’’ A dispute arose over promulgation of

certain maximum reimbursement ceilings, and the Ap-

pellants therein brought suit, seeking damages for

breach and a declaration that the ceilings violated con-

stitutional provisions. The Supreme Court of Georgia,

on February 7, 1977, held that the Complaint of Appel-

lant therein was barred by the immunity of the State.

The Georgia Supreme Court noted that the basis for the

ruling was the constitutionalization of the Immunity

Rule (Ga. Code Ann. § 2-3710) which has been dis-

cussed earlier in this Brief.

Clearly, the Immunity Rule now applies to breach of

contract actions, even between contracting parties,

much less, the strained theory of third-party intended

beneficiaries to a contract. The effect of the recent

constitutionalization of the Immunity Rule and its ap-

plication by a Georgia Supreme Court in Health Fa-

cilities Investments, Inc. v. Georgia Department of

Human Resources, supra, leaves questionable and sus-

pect, though not specifically overruled, a line of prior

authority involving permissible actions between a

county and a direct contracting party. See Deason v.

DeKalb County, 222 Ga. 63, 148 S.E. 2d 414 (1966),

relying upon Decatur County v. Praytor, Howton and

Wood Contracting Company, 163 Ga. 929, 137 S.E. 247

(1927). Those decisions have created the Judicial ex-

ception that a county can be sued by a contracting

party, for a breach of any valid contract which it is

authorized by law to make. Assuming, in arguendo,

that this line of authority has present validity, Appel-

lants below and Petitioners herein have placed sub-

stantial reliance upon this line of authority, urging

that DeKalb County no longer has immunity from suit,

as it was authorized by statute [Ga. Code Ann. § 11-201

(UAL)] to contract with the Federal Aviation Ad-

ministration. There is no argument by Petitioners,

nor can one be asserted, that the statutory authoriza-

tion to contract, was itself, a waiver of immunity as

the statute further provides that the contract shall be

for ‘‘governmental’’ purposes. Ga. Code Ann. § 11-202.

Therefore, the waiver of immunity, if at all, comes not

from the enabling statute, but from the act of contract-

ing itself.

Thus, assuming the continued vitality of that line of

authority, the issue is precisely drawn: Did the act of

contracting by DeKalb County waive its immunity from

suit, by those who are not parties to the execution of the

contract? The Petitioners reliance upon Decatur

County v. Praytor, Howton and Wood Contracting

Company, supra, line of authority is misplaced as those

decisions involved suits by contracting parties not al-

leged third-party beneficiaries to the contract. The

only remaining decision sought to be applied is that of

Hancock County v. Williams, 230 Ga. 723, 198 S.E. 2d

659 (1973). DeKalb County points out that the sequel

to that decision is the more recent Georgia Supreme

Court decision in Williams v. Georgia Power, 233 Ga.

517, 212 S.E. 2d 348 (1975), wherein the Court specif-

ically limited the earlier decision, holding that Han-

cock County’s ‘‘only liability’’ was to Georgia Power

Company under an express indemnity contract and not

to any alleged third-party beneficiaries. Certainly,

this result, and inapplicability of the above-noted line

of authority, even assuming its present vigor, cannot

support the present claims of Petitioners as intended

third-party beneficiaries under Georgia Law.

Thus, the inescapable conclusion is that DeKalb

County is immune from suit under the Petitioners’

theories of third-party intended beneficiaries to the

Federal Grant Agreements iui issue. This outcome is

unaffected by an assertion that the County’s immunity

was waived by its contracting with a higher govern-

mental authority, ie., the Federal Aviation Adminis-

tration. Purser v. Podge County, supra, Intracoastal

Transportation, Inc. v. Decatur County, Georgia, 482

F.2d 361 (5th Cir. 1973).

Under Georgia Law, the Petitioners Are Not Third-Party

Intended Beneficiaries of the Federal Grant Agreements

DeKalb County contends that prior to any determi-

nation of the status of the Petitioners herein, this Court

must necessarily approach and determine the afore-

mentioned immunity of the County. Assuming, in

arguendo, that this Court reaches the issue of the status

of the Petitioners herein, then this portion of this Brief

will demonstrate that under Georgia Law, the Peti-

tioners are merely incidental to the execution and per-

forr xnce of the Grant Agreements as well as incidental

to the contracting governmental authority, i.e., DeKalb

County, and as such, have not attained the status of

third-party intended beneficiaries.

The initial panel majority opinion (526 F.2d 679),

composed of Circuit Judges Morgan and Godbold, cor-

rectly held that under Georgia Law a stranger to a

contract must be an intended, rather than an incidental,

beneficiary of the contract in order to create or assert

a cause of action for breach. 526 F.2d, at 685; Ga.

Code Ann. § 3-108; Steward v. Gainesville Glass Com-

pany, 131 Ga. App. 747, 752, 206 S.E. 2d 857 (1974) ;

affirmed, 233 Ga. 578, 212 S.E.2d 377 (1975). With

this basis, Circuit Judges Morgan and Godbold found

the issue to be ‘‘whether the safety provisions in the

contract between DeKalb County and the FAA were

intended to benefit the public’. 526 F.2d, at 685. This

initial, two-member majority, found an affirmative re-

sponse in a line of Georgia Court of Appeals decisions,

headed by the decision in Smith v. Ledbetter Brothers,

Inc., 111 Ga. App. 238, 141 S.E. 2d 322 (1965).

DeKalb County forcefully disagreed with this incor-

rect interpretation of Georgia Law and petitioned the

remainder of the Court of Appeals for re-hearing on

this specific issue. In its Petition, and in its subse-

quent Briefs, DeKalb County established that in each

of the decisions constituting the Smith v. Ledbetter

Brothers, Inc., supra, line of authority, the Georgia

Court of Appeals did not have a governmental con-

tracting authority before it. In each decision consti-

tuting that line of authority, the parties sought to be

held responsible was not a governmental authority with

some form of immunity, nor was governmental immu-

nity even involved. Thus, that line of authority was

inapplicable therein or herein where the governmental

authority with immunity, i.e, DeKalb County, was

sought to be held responsible.

DeKalb County presented for that Court’s determi-

nation and for this Court’s review, the decisions of

Purser v. Dodge County, supra, McWhirter Material

Handling Company, Inc. v. Georgia Paper Stock Com-

pany, 118 Ga. App. 582, 164 S.E. 2d 852 (1968); Lee

v. Petty, 133 Ga. App. 201, 210 S.E.2d 383 (1974);

and more recently Backus v. Chilivis, 236 Ga. 500, 224

S.E. 2d 370 (1976). Without reciting the particular

facts of the first three (3) decisions cited above, it is

sufficient to suggest that the involvement of a county

governmental authority, cloaked with immunity, was

ample basis to deny the existence of the third-party

intended beneficiary cause of action. More recently,

the Georgia Supreme Court in Backus v. Chilivis,

supra, had before it members of the public who as-

eee

serted the status of third-party intended beneficiaries

of a contract between the HL Yoh Company (‘‘ Yoh’’)

and Glynn County, Georgia. The Appellants therein,

as members of the public, sought to hold Yoh liable for

breach of the contract, but the Georgia Supreme Court

brushed that argument aside, holding:

‘‘TIn order for a third party to have standing to

enforce a contract under Ga. Code Ann. § 3-108,

it must clearly appear from the contract that it

was intended for his benefit. The mere fact that

he would benefit from performance of the agree-

ment is not alone sufficient.’’

In support of the captioned holding, the Court cited

Stewart v. Gainesville Glass Company, supra, and Mc-

Whirter Material Ilandling Company, Inc. v. Georgia

Paper Stock Company, Inc., supra. Of even greater

interest, is the suggestion by that Court, in referring

to the Smith v. Ledbetter Brothers, supra, line of au-

thority, that:

“‘Neither of the cases cited by Appellants sup-

port the proposition that a citizen can sue one

which contracts with a governmental entity for

breach of contract.”’

Needless to say, the Georgia Supreme Court and

Court of Appeals have had at least two (2) recent op-

portunities to apply the Smith v. Ledbetter Brothers,

supra, line of authority (Lee v. Petty, supra,) to con-

tracts involving counties and have refused to do so,

finding no third-party beneficiary status. Clearly, there

was no reason why the Fifth Circuit Court of Appeals

and there is no reason why this Court should do other-

wise, particularly when governmental immunity of the

contracting party is added to the legal equation.

The above-cited authority is consistent with and ap-

plicable of the provisions of the Restatement of Con-

tracts, Section 145, which provides, in part:

‘‘A promissor bound to the United States or to

a State or municipality by contract to do an act

or render a service to some or all members of the

public, is subject to no duty under the contract to

such members to give compensation for injurious

consequences of performing or attempting to per-

form it, or failing to do so unless,

(a).

An intention is manifested in the contract, as in-

terpreted in light of the cireumstances surround-

ing its formation, that the promissor shall com-

pensate members of the public for such injurious

consequences .. .”’

For the application of this rule in Georgia, see: At-

lanta Gas Light Company v. Jennings, 86 Ga. App. 868,

72 S.E. 2d 35 (1952) (citing German Alliance Insur-

ance Company v. Home Water Supply Company, 226

U.S. 220, 33 S.Ct. 32, 57 L.Ed. 195 (1912)) ; Fowler v.

Athens City Water Works Company, 83 Ga. 219, 9

S.E. 673 (1889); Holloway v. Macon Gas Light and

Water Company, 132 Ga. 387, 64 S.K. 330 (1909). Any

suggestion, in the Miree brief, that Georgia Law has a

‘‘liberal’’ approach concerning third parties, allegedly

at odds with the Restatement Rule, is simply incorrect.

Lastly, DeKalb County asserts that Petitioners are

both incidental to the contract formation and incidental

to the contract erecution. It is truly difficult to com-

prehend how members of the public could be otherwise.

' Even the suggestion that the class is narrowed to

‘aeronautical users’’ changes nothing from the mind-

boggling aspects of members of the public being third-

party intended beneficiaries of broad assurances in

government contracts. (Petition of Fields, No. 76-722,

does not involve ‘‘aeronautical users’’). As an ex-

ample, could a “highway user’’ be a third-party in-

tended beneficiary of an interstate highway construc-

tion contract between the United States and the State

of Georgia or a political subdivision thereof? No, see

Daye v. Pennsylvania, 483 F.2d 294 (3rd Cir. 1973).

The mere fact that a member of the publie would have

benefited from performance does not create third-party

intended beneficiary status under Georgia Law. Stewart

Vv. Gainesville Glass Company, supra; Backus v.

Chilivis, supra. DeKalb County also asserts that the

Petitioners were equally incidental to the contracting

governmental party. Under Georgia Law, it must ap-

pear that both parties to the contract intended to bene-

fit a third person. Stewart v. Gainesville Glass Com-

pany, supra. None of the Appellants were residents

of or taxpayers to DeKalb County. If DeKalb County

executed and/or performed a contract for the intended

not incidental benefit of strangers to the County, such

an act by the County would be void and a nullity, as

an unauthorized act beyond its jurisdiction, and immun-

ity would obtain. See Purser v. Dodge County, supra.

The intention to benefit a stranger would nullify the

act of the County while the incidental recipient status

would have the third party without a right or remedy

against the County under Georgia Law. In either

event, the County would not be liable and its dismissal

would be proper.

Cc.

Under Georgia Law, the Petitioners Have No Greater Rights

than the Contracting Parties Themselves

If this Court should determine that the govern-

mental immunity of DeKalb County is inapplicable

and that the Petitioners are third-party intended bene-

ficiaries of the Federal Grant Agreements, then this

Court must approach and determine the extent to

which the Petitioners have a cause of action and a

remedy for breach.

As discussed in the dissent registered by Judge Dyer,

which was subsequently adopted as a majority view, a

close review of the Grant Agreements in issue, will

establish that the only rights accorded the contracting

parties, Le., the Federal Aviation Administration and

DeKalb County, are the termination of funds flowing

under the Agreements and possible enforcement of

performance obligations imposed by the Agreements.

See paragraph 2(a) 8(g) of Part I—Offer; paragraph

14 of Part 11I—Sponsors Assurances. Under common

law and Georgia Law principles, the only rights ac-

corded third persons would be those rights held by the

contracting parties. As stated by the Court of Appeals

of Georgia, in Deal v. Chemical Construction Company,

99 Ga. App. 413, 417, 108 S.E. 2d 746 (1959) :

‘“‘The rights of a third person to sue on a con-

tract made for his benefit depend on the terms of

the agreement and are no greater than those

granted by the contract as intended by the parties

thereto. To recover a beneficiary must bring him-

self within its terms and construction of the con-

tract is involved. Since recovery on a third per-

son beneficiary contract is a recovery on the con-

tract itself, the right of the beneficiary is no

ee ee nd

greater than if the contract were enforced be-

tween the nominal parties, the beneficiary being in

no greater position than the promisee.’’

Therefore, the rights accorded the parties to the

Grant Agreements are simply not sufficient for the

alleged third parties herein to maintain the present

actions for wrongful death, personal injury and prop-

erty damage.

VIl.

DEKALB COUNTY HAS NOT WAIVED ITS

GOVERNMENTAL IMMUNITY

DeKalb County refutes any suggestion thet by the

purchase of insurance, it has thereby waived its gov-

ernmental immunity. Clearly, the involvement of an

insurer in an action is sufficiently determinative of the

outeome to follow State Law. Nelms v. State Farm

Mutual Insurance Company, 463 F.2d 1190 (5th Cir.

1972). This is the only approach available when it is

considered that the present actions are diversity ac-

tions and that no Federal Law exists on this issue.

In turning to Georgia Law, a brief perusal of the

applicable authority will, unquestionably demonstrate,

that the purchase of insurance by a county, neither

waives the immunity of the county nor creates a direct

action against the insurer. Arnold v. Walton, 205 Ga.

606, 54 S.E. 2d 424 (1949) ; Revels v. Tift County, 235

Ga. 333, 335, 219 S.E. 2d 445 (1975). This result was

reached by District Judge O’ Kelley and affirmed, with-

out the dissent, by the en bane Court of Appeals.

Lastly, DeKalb County asserts that any hint that an

implied waiver of immunity has occurred due to the

operation of the airport adjacent to the governmental

sanitary landfill must fail in light of § 3-25 of the

DeKalb County Code (Airport Rules and Regulations)

which provides, as follows:

‘*The County assumes no responsibility for loss,

injury or damage to persons or property by reasons

of fire, water, theft, vandalism, wind, flood, earth-

quake or collision damage, nor does it assume any

liability for injury to persens while on the air-

port, while using the facilities, or for property

damage.”’

SUMMARY OF ARGUMENT AND

CITATION OF GEORGIA AUTHORITY

Under Georgia Law, which is applicable to the pres-

ent diversity Petitioners, DeKalb County is not liable

due to its unwaived immunity. Thus, a review of

Georgia Law requires an affirmance of District Judge

O’Kelley and the Fifth Cireuit Court of Appeals.

ARGUMENT AND CITATION OF

FEDERAL AUTHORITY

INITIAL OBSERVATIONS

Initially, DeKalb County must again reiterate that

the complaint filed on behalf of Petitioners’ herein

grounded the jurisdiction of the lower court, upon

diversity of citizenship, as it pertained to this Re-

spondent. (A-9, 107, 138, 257). No Federal question

was presented in the original complaints, nor do the

Petitioners he.cin suggest the existence of explicit

Federal causes of action or Federal remedies for

wrongful death, personal injury and property damage.

On the contrary, the Complainants sought to invoke

Georgia statutory and common law causes of action

for negligence, nuisance and breach of contract, as well

as Georgia remedies for wrongful death, personal in-

jury and property damage. DeKalb County raises

these aspects of interest because of the Appellate level

assertion by Petitioners’ herein that this Court should

effectively fashion a Federal cause of action and a

Federal remedy.

DeKalb County has consistently urged that under

either Georgia or Federal Law, it is not liable to Peti-

tioners herein. DeKalb County has preferred the ap-

plication of Georgia Law, not out of any fear of the

suitability of Federal Law to its posture in the present

matters, but out of a dutiful respect to the law which

is both the creator and protector of it. DeKalb County

admits that Federal interests are involved in the dis-

bursement of Federal funds by Federal Grant Agree-

ments, but this is apparently the only interest of Fed-

eral Law to the facts at bar. Of course, Petitioners

have sounded the alarm of aviation and the supposed

application of the Interstate Commerce Clause, but a

true reading of the facts before this Court, evidence a

matter of purely local involvement and interest, i.e.,

garbage collection and disposal. Notwithstanding this

lack of Federal involvement, DeKalb County will en-

deavor to detail, for this Court, the profusion of Fed-

eral Authority supportive of its position, even under

the facts as alleged by Petitioners.

THE IMMUNITY OF DEKALB COUNTY REIGNS EVIDENT

IN FEDERAL LAW

The Immunity Afforded DeKalb County Under the Constitution

and Statutes of Georgia Is Applicable in Federal Law

The present actions, as they pertain to DeKalb

County, have their respective groundwork in diversity

of citizenship. Thus, a review of appropriate Georgia

authority is mandated. Erie Railroad Company Vv.

Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188

(1938). DeKalb County, in the previous portions of

this Brief, has fully apprised this Court of the immun-

ity afforded DeKalb County, by both the Constitution

and Statutes of Georgia.

DeKalb County calls this Court’s attention to the

fact that three (3) Circuit Courts of Appeals have held

the immunity doctrine unimpaired by entry into some

sphere of alleged Federal preeminence. Rogers v.

Ray Gardner Flying Service, Inc., 435 F.2d 1389 (5th

Cir. 1970); Intracoastal Transportation, Ine. Vv.

Decatur County, Georgia, 482 F.2d 361 (5th Cir. 1973) ;

Red Star Towing and Transportation Company Vv.

Department of Transportation of the State of New

Jersey, 423 F.2d 104 (3rd Cir. 1970) ; and more recent-

ly, Williamson Towing Company, Ince. v. Illinois, 534

F.2d 758 (7th Cir. 1976). In Rogers v. Ray Gardner

Flying Service, Inc., supra, the 5th Cireuit Court of

Appeals had before it a wrongful death aviation action.

Among several holdings relevant herein, the Court,

speaking through Circuit Judges Godbold, Simpson

and Morgan, held that State sovereignty was unim-

paired in the area of aviaticn. Later, the Fifth Cir-

cuit in Intracoastal Transportation v. Decatur County,

One) 6 ee, =

2 ate

Georgia, supra, with both the State of Georgia and

Decatur County, Georgia before it, held that entry into

admiralty areas did not subject the defendants to

Federal ‘‘overlordship’’. Similar admiralty actions

were dismissed due to the effect of immunity in Red

Star Towing and Transportation Company v. Depart-

ment of Transportation of the State of New Jersey,

supra, and Williamson Towing Company, Inc. v. Illi-

nots, supra.

The reasoning of the above-noted decisions clearly

has its cornerstone in the federalism doctrine upon

which the Union was created. Though the doctrine

of federalism has received less than polite treatment

in recent years, it was recently reviewed and re-affirmed,

and appropriately applied, in this Court’s recent deci-

sion in National League of Cities v. Usery, ——U.S.

——96 S. Ct. , 49 L. Ed. 2d 245 (1976). See also

Oregon v. Corvallis Sand and Gravel Company, ——

US. 97 S. Ct. ——, 50 L. Ed. 2d 55v (1977).

Thus, the implied entry of DeKalb County into a

Federal sphere of influence in garbage maintenance

and/or aviation, does not erase the unwaived immunity

of the Respondent. As will be discussed, infra, the

decision of Parden v. Terminal Railway, 377 U.S. 184,

84 8. Ct. 1207, 12 L. Ed. 2d 233 (1964), does not affect

this result.

The Eleventh Amendment Applies Herein To Afford DeKalb

County Immunity

The Eleventh Amendment to the United States

Constitution provides as follows:

‘‘The judicial power of the United States shall

not be construed to extend to any suit in law or

equity, commenced or prosecuted against one of

the United States by citizens of another State or

by citizens or subjects of any Foreign State.’’

The Miree Petitioners, as residents of Alabama, the

Phillips Petitioner, as a resident of Tennessee, the

Fireman’s Fund Petitioner, as a resident of California,

and the Fields Petitioner as a resident of North Caro-

lina, all satisfy the ‘‘citizens of another State’’, pre-

requisite of the Eleventh Amendment. The only other

requirement of the Amendment is that the party

sought to be held responsible is the State. Admittedly,

the State of Georiga has not been made a party to any

of the present claims. DeKalb County has previously

suggested the impropriety of the Petitioners’ failing

to name the State, particularly as it related to the

alleged unconstitutionality of the Georgia Immunity

Doctrine. Moreover, DeKalb County admits that this

Court, in a particular set of circumstances and facts,

has held that the Eleventh Amendment does not flow

to a county, in the older decision in [incoln County v.

Luning, 133 U.S. 529, 10 8. Ct. 363, 33 L. Ed. 766

(1890). However, DeKalb County contends that the

second requirement of the Eleventh Amendment, i.e.,

that a state be involved, is discharged when this Court

reviews the substantial exposure of the County.

The Miree Petitioners seek $5,500,000.00 in dam-

ages for two (2) deaths, the Phillips Petitioner seeks

$1,000,000.00 for one (1) death, Fireman’s Fund Peti-

tioner seeks over one half million dollars for an as-

signed hull loss claim, and the Fields Petitioner seeks

over $3,000,000.00 for serious personal injuries sus-

tained while being sprayed with flaming aviation fuel.

From its place, DeKalb County can inform this Court

that the total monetary damages sought by claimants

in all of the suits pending in the lower courts,

ame +

including those pending in the State Courts, exceed

$37,000,000.00. From its place, DeKalb County can

further inform this Court that its total leviable and

attachable budget for fiscal year 1976 is approximately

$44,000,000.00. Even the application of minimal in-

surance coverage, which would be directly at odds with

Georgia Supreme Court decisions in Arnold v. Walton,

205 Ga. 606, 54 S.E.2d 424 (1949); Revels v. Tift

County, 235 Ga, 333, 219 S.K. 2d 445 (1975), would only

provide a maximum coverage of $100,000.00 per per-

son. (A-232). Petitioners herein and the parties in

interest below, are quite obviously not satisfied with

those minimal coverages and will obviously seek to

pursue DeKalb County for any excess exposure, which

could be as much as $35,000,000.00.

Needless to say, DeKalb County lacks the resources

to satisfy such judgments as these, or even judgments

as sought only by the present Petitioners. Of neces-

sity, the State of Georgia, by and through its General

Assembly, could be called upon by Petitioners herein

and parties in interest below, to satisfy the judgments

against DeKalb County out of the State Treasury.

This Court, in the fairly recent case of Edelman v.

Jordan, 415 U.S. 651, 94 S. Ct. 1847, 39 L. Ed. 2d 662

(1974), held as follows:

‘« |, . it is also well established that even though

a state is not named a party to the action, a suit

may nonetheless be barred by the Eleventh Amend-

ment. In Ford Motor Company v. Department of

Treasury, 323 U.S. 459, 89 L. Ed. 389, 65 8. Ct. 347

(1945), the Court said:

‘when the action is in essence one for the re-

covery of money from the state, the state is the

real, substantial party in interest and is entitled

to invoke its sovereign immunity from suit even

though individual officials are nominal defend-

ants.’ Id. at 464, 89 L. Ed. 389.

Thus the rule has evolved that a suit by private

parties seeking to impose a liability which must be

paid from public funds in the State Treasury is

barred by the Eleventh Amendment. Great North-

ern Life Insurance Company v. Reid, supra; Ken-

necott Copper Corporation v. State Tax Commis-

sioner, 327 U.S. 573, 90 L. Ed. 862, 66 S. Ot. 745

(1946).”’

See also, Harris v. Tooele County School District,

471 F.2d 218 (10th Cir. 1973).

Certainly, the above-noted language is precisely ap-

plicable to the facts at bar, requiring the intervention

of a Federal immunity concept along with the previ-

ously discussed State Immunity Rule.

Cc.

There Has Been No Waiver of the Immunity Afforded

DeKalb County

Previous portions of this Brief have dealt with the

assertion that DeKalb County waived the immunity

afforded it by Georgia Law. A meticulous review of

Georgia Law found that assertion to be lacking.

A similar waiver argument is presented by Petition-

ers herein in the area of Federal Law, with the asser-

tion that DeKalb County has entered into a Federal

sphere of influence. DeKalb County is somewhat per-

plexed with the argument that garbage collection and

disposal enters a Federal sphere of influence, but as-

suming, en arguendo, that it does, Petitioners place

almost sole reliance upon this Court’s decision in

Parden v. Terminal Railway, 377 U.S. 184, 84 S. Ct.

1207, 12 L. Ed. 2d 233 (1964). However, this argu-

ment fails to take cognizance of this Court’s more re-

cent decisions in Employees v. Missouri, 411 U.S. 279,

93 S. Ct. 1614, 36 L. Ed. 2d 251 (1973); and Edelman

v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d

662 (1974). Clearly, Parden v. Terminal Railway,

supra, was an F.E.L.A. action with a Congressionally

enacted and created Federal cause of action, Federal

forum and Federal remedies. From this foundation,

a divided Court found a ‘‘waiver’’ of immunity granted

a subdivision of the State of Alabama, by its entry into

a Federal sphere of influence. As will be discussed

more fully in a subsequent portion of this Brief, there

is no Congressionally enacted or created Federal cause

of action, Federal forum or Federal remedy presently

before this Court. A Congressional intention to sub-

ject the states and their subdivisions to a waiver of

immunity is also completely lacking.

A case with a similar posture was before this Court

in Edelman v. Jordan, supra, where this Court, through

Justice Rehnquist, held:

‘« . . we do not think that the answer to the

waiver question turns on the distinction between

Parden, supra, and Employees, supra. Both

Parden and Employees involved a Congressional

enactment which by its terms authorized suit by

designated plaintiffs against a general class of

defendants which literally included states or state

instrumentalities. Similarly, Petty v. Tennessce-

Missouri Bridge Commission, supra, involved Con-

gressional approval, pursuant to the Compact

Clause of a compact between Tennessee and Mis-

souri, which provided that each compacting State

would have the power ‘‘to contract, to sue, and be

sued in its own name.’’ The question of waiver

or consent under the Eleventh Amendment was

= a

found in those cases to turn on whether Congress

had intended to abrogate the immunity in ques-

tion, and whether the State by its participation in

the program authorized by Congress had in effect

consented to the abrogation of that immunity.

But in this case the threshold fact of Congres-

sional authorization to sue a class of defendants

which literally includes states is wholly absent.

Thus Respondent is not only precluded from rely-

ing on this Court’s holdings in Employees, but on

this Court’s holdings in Parden and Petty as well.”’

Clearly, the Edelman v. Jordan, supra, approach is —

applicable to the present case and no waiver of immu-

nity should be found.

One other reason exists for the inapplicability of the

Parden v. Terminal Railway, supra, approach to the

present actions. Counsel for DeKalb County has re-

searched every Federal decision citing Parden v.

Terminal Ratlway, supra. Apparently, no Federal

Court, in an aviation case, has relied upon the Parden

v. Terminal Railway, supra, approach. Even if this

Court should adopt the suggestion of Petitioners that

the present actions are, in reality, aviation actions,

the Parden v. Terminal Railway, supra, decision pro-

vides no authority or support for their respective posi-

tions. Moreover, the previously discussed decision in

Rogers v. Ray Gardner Flying Service, Inc., 435 F.2d

1389 (5th Cir. 1970), does provide an aviation law an-

swer in the negative to the waiver question.

Therefore, a waiver of DeKalb County’s immunity

has not oceurred, and the County is not properly sued.

ith Sibi eee ~~

LL ee

Ill.

NO PRIVATE CAUSE OF ACTION OR PRIVATE REMEDY

IS AVAILABLE TO PETITIONERS UNDER FEDERAL

LAW

It is uncontested that the Federal Legislative and

Regulatory scheme surrounding aviation does not ex-

plicitly create either a Federal cause of action or a

Federal remedy for the Petitioners herein. Thus, the

only means by which the present Petitioners can main-

tain actions based upon Federal Law is for this Court

to imply not only a civil cause of action, but a civil

remedy, along with the necessary adoption of a Fed-

eral forum.

DeKalb County would direct this Court’s attention

to the fact that numerous Federal Courts have reviewed

this specific issue, particularly in some cases involving

aviation mishaps causing personal injury and death.

Rogers v. Ray Gardner Flying Service, Inc., 435 F.2d

1389 (5th Cir. 1970); McCord v. Dixie Aviation Cor-

poration, 450 F.2d 1129 (10th Cir. 1971) ; Polansky v.

Transworld Airlines, Inc., 523 F.2d 332 (3rd Cir. 1975) ;

Sanz v. Renton Aviation, Inc., 511 F.2d 1027 (9th Cir.

1975); Moungey v. Brandt, 250 F. Supp. 445 (W.D.

Wis. 1966) ; Yelinek v. Worley, 284 F. Supp. 679 (E.D.

Va. 1968); Porter v. Southeastern Aviation, Inc., 191

F. Supp. 42 (M.D. Tenn. 1961); Moody v. McDaniel,

190 F. Supp. 24 (N.D. Miss. 1960); Morrison v. Jack

Richards Aircraft Company, 328 F. Supp. 580 (W.D.

Okla. 1971); Rosdail v. Western Aviation Company,

Inc., 297 F. Supp. 681 (D. Colo. 1969); Fernandez v.

Linea Aeropostal Venezolana, 156 F. Supp. 94 (8.D.

N.¥. 1957); Morzingo v. Consolidated Construction

Company, 171 F. Supp. 396 (E.D. Va. 1959). Wolf v.

Transworld Airlines, Inc., 544 F.2d 134 (3rd Cir. 1976) ;

Rauch v. United Instruments, 3rd Cir. (12-30-76, Case

No. 76-1184). Each of these decisions stand for the

proposition that Federal Courts will not create either

a Federal cause of action or a Federal remedy out of

the silent legislation and regulatory scheme surround-

ing aviation. Clearly, these decisions are appropriate

precedent for this Court’s present determinations.

In response to this line of authority, Petitioners have

cited several aviation decisions, wherein, private causes

of action and remedies were created. However, none

of these decisions involved wrongful death or personal

injury actions, but, on the other hand, dealt with some

form of discrimination, oversold flights, or noise, none

of which is before this Court. The only other support-

ive authority cited by Petitioners, which does concern

personal injuries, or death, are the dual decisions of

one Federal District Judge in Gabel v. Hughes Air

Corporation, 350 F.Supp. 612 (C.D. Cal. 1972); and

in re Paris Air Crash, 399 F.Supp. 732 (C.D. Cal.

1975). DeKalb County is constrained to point out

that not one single Federal Court of Appeals has

adopted these decisions, and particularly, the Court of

Appeals for the Ninth Circuit (the Circuit Court of

Appeals for that region) refused to follow the logic of

those cases, opting to follow the case of McCord v.

Dizie Aviation Corporation, supra. See Sanz v. Ren-

ton Aviation, Inc., 511 F.2d 1027 (9th Cir. 1975). De-

Kalb County would suggest that additional reasons are

available not to apply the approach of Judge Hall.

Any suggestion of approval of that approach by this

Court would literally open the doors of Federal Court

to all aviation litigants, be they recipients of personal

injury or injuries of a different nature, as well as sim-

ple contestants to various contractual, lease, bailment,

security interest, ete., arrangements. This Court should

take full cognizance of the burden it imposes upon an

already overburdened Federal Court by such a deter-

mination. Clearly, this is not the intended result of

Congress. See 49 U.S.C.A. § 1506.

The above-noted conclusion is fortified by the 1969

introduction in the United States Senate, by Senator

Tydings, of Senate Bill Number 961 (S. 961, 91st Cong.,

1st Sess.). That Bill sought to create exclusive juris-

diction in Federal Courts for aviation matters, create

a Federal cause of action, and create a Federal remedy.

The Congressional response to this Bill was that it was

never reported out of Committee, after substantial

hearings. Cited from 51 N.Y.U. Law Review, 231 at

238. The factwm of this Congressional response to

Senator Tydings’ Bill should be sufficient reply to any

of Petitioners’ suggestions that this Court imply a

cause of action and a remedy from the silent legisla-

tion.

Assuming, en arguendo, that this Court does not find

the Congressional response to the Tydings’ Bill per-

suasive, then a review must be had as to this Court’s

rulings in Cort v. Ash, 422 U.S. 66, 95 S. Ct. 2080, 45

L. Ed. 2d 26 (1975). Initially, DeKalb County would

note that in Cort v. Ash, supra, in Securities Investors

Protection Corporation v. Barbour, 421 U.S. 412, 95

S. Ct. 1733, 44 L. Ed. 2d 263 (1975), and in National

Railroad Passenger Corporation v. National Associa-

tion of Railroad Passengers, 414 U.S. 453, 94 S. Ct. 690,

38 L. Ed. 2d 646 (1974), this Court refused to imply or

create private causes of action or remedies from silent

Federal legislation. The trend created by these deci-

sions is sufficient, in and of itself, to deny such an im-

plication, to the Petitioners herein. But a more spe-

cifie response is available when viewed in light of this

Court’s four (4) step test enunciated in Cort v. Ash,

422 U.S. at 78, 45 L. Ed. 2d, at 36: |

‘‘ First, is the Plaintiff one of the class for whose

especial benefit the Statute was enacted, (citations

omitted)—that is, does the Statute create a Fed-

eral right in favor of the Plaintiff? Second, is

there any indication of legislative intent, explicit

or implicit, either to create such a remedy or to

deny one? (citation omitted.) Third, is it con-

sistent with the underlying purposes of the legis-

lative scheme to imply such a remedy for the Plain-

tiff? (citations omitted) ; and finally, is the cause

of action one traditionally relegated the State Law,

in an area basically the concern of the States, so

that it would be inappropriate to infer a cause of

action based solely on Federal law? (citations

omitted.) ”’

The Petitioners’ efforts to bring themselves within

the parameters of these tests have simply failed, par-

ticularly Petitioner Fields who was allegedly on the

ground at the time of this occurrence. Clearly, none

of the Federal legislation or regulations ‘‘create a Fed-

eral right in favor” of the Petitioners, and the first

test is thus failed. As for the second test, the Congres-

sional response to the Tydings’ Bill evidences an in-

terest to deny a Federal right. The third test has been

answered by the numerous Federal Court opinions

cited above, while the fourth test is met with the simple

fact that the present diversity Petitioners did, in fact,

assert their respective claims under State law theories

of negligence, nuisance and breach of contract, with

State law remedies for punitive damages, wrongful

death, personal injury, and property damage being

sought. Moreover, the involvement of a sanitary land-

fill clearly reserves this area of law for local concern.

Thus, even the application of the Cort v. Ash, supra,

test, leaves the Petitioners without a Federal posture.

IV.

UNDER FEDERAL CONTRACT LAW, THE PETITIONERS

ARE NOT THIRD PARTY INTENDED BENEFICIARIES

OF THE BROAD ASSURANCES CONTAINED IN THE

FEDERAL GRANT AGREEMENTS IN ISSUE

DeKalb County would call this Court’s attention to

the Restatement of Contracts Section 145, which pro-

vides, in part:

c ‘‘A promisor bound to the United States or to a

State or municipality by contract to do an act or

render a service to some or all of the members of

the public, is subject to no duty under the contraet

to such members to give compensation for the in-

Jurious consequences of performing or attempting

to perform it, or failing to do so, unless:

(a) ©

_ An intention is manifested in the contract, as

interpreted in light of the circumstances surround-

ing its formation, that the promisor shall eompen-

sate members of the public for such injurious con-

sequences... ”’

; The majority of the Fifth Cireuit, adopting the opin-

ion of Cireuit Judge Dyer, relied upon the following

decisions as supportive of the Restatement Rule in

Federal Contract Law; West v. Morrison Knudsen

Company, 451 F.2d 493 (9th Cir. 1971); Hensley v.

United States, 279 F. Supp. 542 (D. Mont. 1968);

Brotherton v. Merritt-Chapman and Scott Corpora-

tion, 213 F.2d 477 (2nd Cir. 1954); Johnson v. Rede-

velopment Agency, 317 F.2d 872 (9th Cir. 1963);

Mahler v. United States, 306 F.2d 713 (3rd Cir. 1962) ;

Housing Corporation of America v. United States, 468

F.2d 922 (Court of Claims, 1972); Sayre v. United

_ States, 282 F. Supp. 175 (N.D. Ohio 1967). DeKalb

County would call this Court’s attention to a multitude

of similar holdings, including one from this Court,

and several of which are recent determinations, as fol-

lows: German Alliance Insurance Company v. Home

Water Supply Company, 226 U.S. 220, 33 8. Ct. 32,

57 L. Ed. 195 (1912); Harlib v. Lynn, 511 F.2d 51

(7th Cir. 1975) ; Bogart v. United States, 531 F.2d 988

(Ct. Cl. 1976); Commonwealth of Pennsylvania v.

National Association of Flood Insurers, 378 F. Supp.

1339 (M.D. Pa. 1974), affirmed 520 F.2d 11 (3rd Cir.

1975); McCullough v. Redevelopment Authority of

Wilkes-Barre, 522 F.2d 858, 867-868 (3rd Cir. 1975) ;

King v. National Industries, Inc., 512 F.2d 29 (6th Cir.

1975) ; Goodwin v. United States, 517 F.2d 481 (9th

Cir. 1975); Stanturf v. Sipes, 224 F. Supp. 883 (W.D.

Mo. 1963), affirmed 335 F.2d 224 (8th Cir. 1964) ;

Lobianco v. Valley Forge Military Academy, 224 F.

Supp. 395 (E.D. Pa. 1963), affirmed 331 F.2d 851 (3rd

Cir. 1964); Roberson v. United States, 382 F.2d 714

(9th Cir. 1962); Hodge v. United States, 310 F. Supp.

1090, 1102 (M.D. Ga. 1969), affirmed 424 F.2d 545 (5th

Cir. 1970); United Publishing & Printing Corpora-

tion v. Horan, 268 F. Supp. 948 (D. Conn. 1967).

Without burdening this Court with an in depth dis-

cussion of each of the above-noted decisions, DeKalb

County would particularly cite the decision of German

Alliance Insurance Company v. Home Water Supply

Company, supra, wherein this Court had before it a

party who had contracted with a government agency,

and this Court held:

‘“‘But even where the right is most liberally

granted, it is recognized as an exception to the

general principle, which proceeds on the legal and

natural presumption, that a contract is only in-

tended for the benefit of those who made it. Be-

fore a stranger can avail himself of the excep-

tional ayers 9 of suing for a breach of an agree-

ment, to which he is not a party, he must, at least,

show that it was intended for his direct benefit.’’

(Emphasis added.)

Clearly, the Restatement Rule was fashioned upon

decisions such as this Court’s decision in German AI-

liance Inswrance Company v. Home Water Supply

Company, supra. The reason and basis for the Re-

statement Rule has not changed, nor has or should the

rule be changed. Certainly, the concept behind the

rule has present vitality as evidenced by the above-

noted cases. This approach is very consistent with this

Court’s recent decision in United States v. Orleans,

— US. —, 96 8. Ct. 1971, 48 L. Ed. 2d 390 (1976),

wherein this Court unanimously held that the grantor

of Federal funds did not subject itself to ‘‘countless

unidentifiable classes of beneficiaries’’ id, 48 L. Ed.

2d, at 399. Obviously, if the grantor is not liable to

“countless unidentifiable classes of beneficiaries’’ the

grantee of said funds, who itself is cloaked with un-

waived governmental immunity, equally is not liable.

With the Restatement Rule clearly in focus and its

application herein obvious, the next issue requiring

resolution is the status, not standing, of the Petitioners

under said Rule. A close review of the Rule demon-

strates that, as under Georgia Law, third parties, as

members of the public, must demonstrate that both

contracting parties clearly manifested an intention to

compensate members of the public for breaches of pub-

lie contracts. DeKalb County asserts that the Peti-

tioners are both incidental to the contract formation

and incidental to the contract execution. It is truly

difficult to comprehend how members of the public

could be otherwise. See United States v. Orleans,

supra. Even the suggestion that the class is narrowed

to ‘‘aeronautical users’? changes nothing from the

mind-boggling aspects of members of the public being

third-party intended beneficiaries of broad assurances

in government contracts. (Petitioner Fields is not an

‘‘aeronautical user’’). As an example, could a ‘‘high-

way user” be a third party intended beneficiary of an

interstate highway construction contract between the

United States and the State of Georgia or a political

subdivision thereof? No, see Daye v. Pennsylvania,

483 F.2d 294 (3rd Cir. 1973). Clearly, the mountain

of authority cited above denies the Petitioners herein

the status, not standing, of asserting that they are in-

tended to be compensated by the grant agreements.

The incidental recipient status of the Petitioners is

simply insufficient to support the present actions, and

they were properly dismissed by the lower courts.

The fact that these appeals allegedly concern avia-

tion and aeronautical users does not change the inci-

dental and unintended status of these third persons.

Similar grant agreements were before the Courts in

Eastern Airlines v. Town of Islip, 229 N.Y.S. 2d 117

(1962) ; Port of New York Authority v. Eastern Atr-

lines, Inc., 259 F. Supp. 745 (ED. N.Y. 1966), and

City and County of San Francisco v Western Airlines,

Inc., 204 Cal. App. 2d 105, 22 Cal. Rptr. 216 (1962),

and those Courts found those aeronautical users were

not accorded the status of third party intended bene-

ficiaries under similar grant agreements. The Peti-

tioners’ reliance upon City of Inglewood vy. City of

Los Angeles, 451 F.2d 948 (9th Cir. 1972), and its

progeny, is clearly misplaced.

In that decision, the Plaintiff sought injunctive and

declaratory relief based upon an allegedly continuing

breach of an existing grant agreement. Thus, the

issue of standing was of paramount interest to that

Court, while third-party beneficiaries status was a

side-light. Moreover, and of equal importance, that

Court cited and distinguished the case of Port of New

York Authority v. Eastern Airlines, Inc., supra, and

City and County of San Francisco v. Western Air-

lines, supra, finding these cases to involve such aero-

nautical users as the airlines. While Petitioners

righteously contend that they are ‘aeronautical

users’’ and are thus intended beneficiaries of the grant

agreements, they nevertheless cite as supportive au-

thority, a decision which concerns non-aeronautical

users, and which distinguishes decisions involving

aeronautical users. The only other decision cited by

the Petitioners suggestively applicable to this area of

aeronautical users is Rapp v. Eastern Airlines, Inc.,

264 F. Supp. 673 (E.D. Pa. 1967). Again, reliance

on that case for the matters presently under consid-

eration is misplaced That decision was without con-

tractual issues and the Port Authority, which may or

may not have been immune from suit, was not involved

therein. Thus, two of the basic issues before this

Court, the immunity of DeKalb County, and contrac-

tual issues of third-party intended beneficiary status

under the Grant Agreements, were not before that

Oourt. Moreover, whatever other application the Rapp

decision would have had to the facts at bar, was lost

when that decision was vacated on April 1, 1970, by

the United States Court of Appeals for the Third

Circuit, by and through Chief Judge Hastie and Cir-

cuit Judges Maris and Adams. No doubt other suits

arising out of the same occurrence were brought be-

fore the Third Circuit, but the issues in those suits

were inapplicable to the facts herein.

Outside of the aviation field, the Petitioners rely

upon language contained within prior opinions of the

Fifth Cireuit in Bossier Parish School Board v.

Lemon, 370 F.2d 847 (5th Cir. 1967) and Seaboard

Airline Railroad v. County of Crisp of the State of

Georgia, 280 F.2d 873 (5th Cir. 1960), dealing with

school desegregation and Federal Power Regulation,

respectively. Generally speaking, citation of those

decisions has been limited to their respective areas of

involvement, i.e., school desegregation and Federal

Power Regulation, and there is no reason to suggest

that either of those issues are presently before this

Court. Morover, the Fifth Circuit, by not reciting

those cases, as authority herein, has obviously drawn

a serious shadow over the present validity of those

eases, or at least, found their application to be outside

the respective areas of interest in these cases.

Therefore, DeKalb County asserts that under Fed-

eral Law, the Restatement of Contracts rule obtains,

and the Petitioners have failed to demonstrate that

the Grant Agreements in issue intended to benefit and

compensate them.

Lastly, it must be reiterated that the only rights

accorded the contracting parties by the Grant Agree-

ments in issue were the termination of funds flowing

under the Agreement and possible enforcement of

performance obligations imposed by the Agreements.

See paragraph 2(a), 8(g) of Part I-Offer; paragraph

14 of Part III-Sponsors Assurances. Federal Courts

have previously recognized that a third-party benefi-

ciary’s right of action on a promise cannot rise higher

than the rights of a contracting party, Seward v. South

Florida Securities, 96 F.2d 964 (5th Cir. 1938); and

that a third-party beneficiary can acquire no better

right to enforce the contract than that held by the

contracting parties themselves. Simmons v. Western

Assurance Company, 205 F.2d 815 (5th Cir. 1953).

The rights accorded the contracting parties herein, are

simply not sufficient to maintain the present actions.

As such, the creation of causes of action for wrongful

death, personal injury and property damage, with un-

specifie remedies, all out of silent Grant Agreements

would be without basis in law.

SUMMARY OF RELEVANT FEDERAL

AUTHORITY

A review of relevant Federal authority demonstrates

that the immunity of the County reigns evident in the

Federal area. Even if the immunity of the County

were drawn into question, there is no private cause

of action or remedy available to the Petitioners herein

nor do the Grant Agreements in issue provide any

relief to the Petitioners.

WENDALL K, WILLARD

Harvey, WILLARD & ELLIorr

125 Trinity Place

Decatur, Georgia 30030

MEADE Burns

F. CLay Busx

Lona, WEINBERG, ANSLEY & WHEELER

3000 Equitable Building

Atlanta, Georgia 30303

Of Counsel for Defendants,

DeKalb County, Georgia

Exhibit 1

IN THE UNITED STATES DISTRICT COU

POR THE NORTHERN DISTRICT OF GEORG

ATLANTA DIVISION

GEORGE HENSON MIREE, et al.

UNITED STATES OF AMERICA,

}

~~ © oF +

JUDITH ANITA PHILLIPS t

CIVIL NO.

UNITED STATES OF AMERICA,

FIREMAN'S FUND INSURANCE

COMPANY

vs. CIVIL NO.

UNITED STATES OF AMERICA,

et al.

WILLIAM MICHAEL FIELDS

vs. CIVIL NO.

UNITED STATES OF AMERICA

MRS. PEARLIE CHAISSON :

vs. : CIVIL NO.

SOUTHEAST MACHINERY, INC. :

MARILYN JOYCE SELLFORS

vs. CIVIL NO.

UNITED STATES OF AMERICA

OCT 121976 fi.

4g.

19412

C74-24A

C74=291A

C74-915A

C74-1LO069A

oe, *

A TRUE Corr

Ben ie AQ ‘aa

; Ulerz

Ro ter

MARY J. HOWARD, et al. :

vs. ; CIVIL NO. C74-1074A

UNITED STATES OF AMERICA ,

LOCAL PROPERTIES, INC., :

et al. - °

vs. : CIVIL NO. C74-1272A

UNITED STATES OF AMERICA, :

et al- | :

WILLIAM MICHAEL FIELDS

vs. : CIVIL NO. C75-218A

SEMAC INDUSTRIES, Inc. :

; .

MARY J. HOWARD, et al. :

vs. CIVIL NO. C75-320A

UNITED STATES OF AMERICA :

;

ORDER

These actions, companion cases arising from the

crash of an airplane at the DeKalb-Peachtree Airport, are

presently before the court on DeKalb County's motions for

protective orders relieving it of the duty to answer, admit,

or otherwise respond to the first and second requests for

admissions filed on behalf of Machinery Buyers Corporation,

Southeast Machinery, Inc., Semac Industries, Inc., and

Fireman's Fund Insurance Company. In support of its motions,

DeKalb County contends that under Fed. R. Civ. P. 36, requests

for admissions may only. be directed to a “party” arid that it

is no longer a party to any of these lawsuits. The court

agrees. iIn the only cases in which DeKalb County was

originally & party, Miree v. United States, Civil No. 19293;

P ips v. Uni . + Civil No. 19412; Fields v. United

States, Civil No. C74-291A; Fireman's Fund Insurance Co. v.

map Civil No. C74=24A; Chaisson v. Southeast

Machinery, inc., Civil No. C74-915A, the court, on September 25,

1974, entered final judgment pursuant to Fed. R. Civ. P. $4(b)

Gismissing the cases as ‘to DeKalb County. That judgment has

now been affirmed by the Fifth Circuit en banc. Miree v.

United Ssaces, 538 F.2d 643 (Sth Cir. 1976). Since DeKalb

County * no longer a “party” to any of these lawsuits, requests

for admissions may not properly be addressed to it.

Accordingly, DeKalb County's motions for protective

orders are hereby granted.

IT IS SO ORDERED this 8th day of October, 1976.

United States District rn, |

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.