Elecrocuted Soldier Suit Revived Against KBR

     (CN) – The parents of a staff sergeant who died because of a short circuit in an Iraq military base shower may have a case against KBR, the 3rd Circuit ruled.
     While a federal judge dismissed the case in 2012 after finding that she could not question military wartime decisions, a three-judge panel found earlier this month that “defense contractors are not part of the government, so sovereign immunity, waiver of sovereign immunity, and exceptions to waiver do not apply directly to defense contractors.”
     The panel remanded the case back to District Court to determine whether the political question doctrine bars the claims, which are otherwise not pre-empted by the combatant-activities exception to the Federal Tort Claims Act.
     Staff Sgt. Ryan Maseth’s parents had sued KBR, a former Halliburton subsidiary previously known as Kellogg Brown & Root, based on maintenance work it performed on the Radwaniyah Palace Complex military base in Iraq.
     The 24-year-old soldier had died when an ungrounded water pump short-circuited as he was showering at the base.
     When the pump short-circuited, the electricity traveled “through the pipes, shower head, coils and water” and caused “the water itself [to be] electrified,” according to their complaint. Maseth suffered a heart attack and died on the shower floor.
     The building Maseth showered in predated the war and was allegedly known to have significant electrical problems.
     The parents claimed that KBR breached the two government contracts under which it performed, making it liable for negligence. KBR allegedly failed to ground and bond the water pump either during installation or when responding to work orders complaining of electrified water in Maseth’s barracks.
     As to the question of pre-emption under the political question doctrine, the Philadelphia-based federal appeals offered a bit of insight to the issue.
     “Defense contractors do not have independent constitutional authority and are not coordinate branches of the government to which we owe defense,” Judge D. Brooks Smith wrote for the panel. “Consequently, complaints against them for conduct that occurs while they are providing services to the military in a theater of war rarely, if ever, implicate a political question.”
     Looking at the facts of this case, Smith noted that “the contacts between the military and KBR … provide KBR with significant discretion over how to complete authorized work orders.”
     “This discretion is best evidenced by the lack of detailed instructions in the work orders and the lack of military involvement in completing authorized work orders,” Smith added. “Military control over KBR’s relevant activities therefore does not introduce and unreviewable military decision into the case.”
     Whether it was an installation issue or a maintenance issue, the panel ultimately decided that “neither of the plaintiffs’ liability theories requires evaluating the wisdom of the military’s decisions. Accordingly, neither justifies dismissing this case on political-question grounds.”
     Smith added that the District Court “erred when it concluded that resolving this defense would require determining whether the military was negligent.”
     For other remaining political-question factors, the District Court must first determine the application of state law, according to the ruling.
     “If Pennsylvania law controls, then this case lacks any nonjusticiable issues,” Smith wrote. “But if either Tennessee of Texas law controls, then the case contains nonjusticiable issues that require eliminated any damages based on proportional liability. In such instance, if Staff Sergeant Maseth is found contributory negligent, the case should be dismissed.
     On remand, the District Court must also determine whether KBR actually installed the pump, if it appropriately responded to work orders or shock complaints from Maseth’s barracks, if it could have eliminated the risk of electrocution, and if it then also failed to recognize or eliminate the risk.
     “Accordingly, because KBR’s argument was that the military was a proximate cause implicates unreviewable strategic military decision only because of the necessity of apportioning fault, the plaintiffs may still proceed if they seek any relief that does not implicate the proportional-liability system,” the ruling states.

%d bloggers like this: