MANHATTAN (CN) - In an order that cites poor conditions in military latrines from Iraq today to George Washington to Hannibal, a federal judge ruled that Kellogg, Brown & Root cannot be sued by an employee who tripped in a toilet it maintained in Iraq's Camp Shield.
"At first glance, indoor latrine maintenance may not appear related to combatant activity," U.S. District Judge Kevin Castel wrote in his 28-page order. "But, since at least the Roman campaign against Carthage there has been an acknowledged relationship between the upkeep of latrines and the health of fighting forces."
Castel's historically minded order dismissed a case by Richard Aiello, a civilian contractor who sought $2 million after tripping in a toilet at Camp Shield, a U.S. military base about 3 miles outside the Green Zone in Baghdad, near Sadr City.
Camp Shield was mortared and rocketed three times around Easter 2008, and soldiers civilian contractors guarded the perimeter from inside observation towers, the order states.
But KBR failed to guard against the "menace" posed by a poorly maintained toilet, Aiello wrote in his Sept. 15, 2009 complaint.
"[T]he bathroom was improperly designed and constructed so that persons had to stand on loose tiles to use the bathroom," Aiello said. He added that "defendant was further negligent in that its agents, servants and/or employees, washed the aforesaid tiles and failed to properly post a sign or warn persons of said wet and slippery condition, all of which constituted a danger, menace, hazard, nuisance and trap."
KBR sought dismissal last year, claiming immunity under rules prohibiting the court's jurisdiction in cases involving political questions and combatant activities.
In his March 31 order, Castel wrote that tripping in contractors' toilets is not a political issue, but it could reasonably qualify as involving combatant activity.
Citing Nathan Rosenstein's "Rome at War: Farms, Families and Death in the Middle Republic," Castel noted that encampments without running water caused typhoid outbreaks during Hannibals' War. Similar outbreaks did not occur at permanent camps with latrines, the order states.
More than 2,000 years later, a U.S. Army physician suggested how to avoid a typhoid outbreak in the Spanish-American War, recommending that soldiers wash their hands "under the supervision of a sentinel posted at each latrine for this purpose," the order states.
Castel added that unhygienic toilets were recorded during the American Revolution.
"General George Washington was reportedly 'appalled' that latrines were dug in proximity to kitchens," the opinion states.
Lawsuits involving military latrines are harder to find in case history, but they do exist, the judge wrote.
During World War II, the owner of a commercial clam farm sued the United States after a Navy ammunition ship discharged "oils, sewage, and other noxious matter" into Discovery Bay in Washington state.
The district court ruled that the Navy had immunity, but the clammer won on appeal to the 9th Circuit, which ruled that a peaceful U.S. harbor could not be called a site of combatant activity.
Camp Shield, however, was at the center of "actual hostilities," Castel wrote.
"[T]he design, operation and maintenance of basic life-support facilities at a forward operating base, which served as a refit and re-arming point for soldiers involved in combat and which came under hostile fire, is necessary to and in direct connection with actual hostilities. It is therefore combatant activity," Castel wrote, granting KBR's motion to dismiss.
(Editor's note: Regrettably, the citation to Hannibal, on p. 25 of the order, does not mention the contributions, if any, of Hannibal's elephants to the conditions in his latrines.)