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Berg v. Reaction Motors Division

Decided: May 21, 1962.


For affirmance in part and reversal in part -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. Opposed -- None. The opinion of the court was delivered by Jacobs, J.


The plaintiffs obtained a judgment against the defendant in the Law Division for compensatory and punitive damages. The defendant appealed and while its appeal was pending in the Appellate Division we certified it on our own motion.

The defendant had contracts with the United States for the development and production of the rocket engine for the X-15 supersonic airplane. The engine is designed for a maximum thrust of 50,000 pounds and 250,000 horsepower. The developmental stage of the engine required numerous tests and the critical testing period began in the spring of 1958. It took place in a test area in Rockaway Township at test stands E-1 and R-2 which were bedded on large concrete bases. E-1 was approximately 6800 feet and R-2 was approximately 3500 feet from the center of the village of Lake Telemark. When tests were conducted the thrusts caused turbulences in the air, and flames approximately 20 to 25 feet long and 18 inches to 2 feet around were

observable at the test stands. The noises which accompanied the tests were referred to in a brochure issued by the defendant as sometimes thunderous and describable as "the whine of a jet, the smash of a cannon, the roar of a rocket engine."

Shortly after it commenced testing, the defendant began receiving complaints from the plaintiffs who were the owners and occupants of homes at Lake Telemark. Under date of July 10, 1958 the plaintiff Halfdan Thoresen wrote a letter to the defendant and, in response, received a visit from Colonel Richard F. Whitcomb who was in charge of its public relations. Mr. Thoresen testified that he complained to the Colonel that the defendant's testing was disturbing his sleep and causing his home "to come apart" and that the Colonel had said that "the damages, if they were due to their negligence, they would be repaired." The Colonel acknowledged that he had visited Halfdan Thoresen following receipt of the letter. He testified that he explained the nature and significance of the defendant's program and denied that he ever made any absolute commitment to pay for any damages caused by the testing. The Colonel testified that the only other written complaint he received was from the plaintiff August Selland who wrote a letter under date of October 3, 1958. Mr. Selland testified that the Colonel called upon him in response to his letter, that he restated his complaints about the noise and damage to his property, and that the Colonel had then inquired "Why don't you move to a place further away where this noise won't bother you." This was disputed in the Colonel's testimony.

On August 7, 1958 the Colonel, in the company of Mr. Michael who was also a public relations representative of the defendant, attended a meeting of the Lake Telemark residents who were complaining about the effects of the defendant's activities. A film was shown and the residents were told about the high importance of the X-15 and the urgent necessity for the testing. The plaintiff Erling Thoresen testified that the complainants at the meeting were advised that there "would be no relief at this time" from

the noise and that "if anything it would get worse." On August 18, 1958 the members of the Rockaway Township Committee met with representatives of the defendant and as a result the defendant, according to Colonel Whitcomb's testimony, undertook to do the following: (1) to restrict its major test operations to the hours between 7 A.M. and 8 P.M. until further notice; (2) to set up an auxiliary burner control which would burn off excess ammonia fumes; (3) to engage a seismographic consultant; (4) to arrange firing test schedules, insofar as practical, so that the tests would not interfere with the recess periods of the K.D. Malone School; (5) to submit weekly reports of test firings to the Township Committee; (6) to procure the services of a consultant in sound levels and in the possibility of constructing and designing a sound suppressor; and (7) to honor its responsibility for legal claims.

The defendant confined its major test operations to the hours between 7 A.M. and 8 P.M. until April 1959. Colonel Whitcomb testified that at that time, and following a conversation with Mayor Vandermark of Rockaway Township, the testing hours were extended because "we were falling so far behind in our urgent schedule with the Air Force that they insisted that we step up our program." The defendant's undertaking to control the ammonia fumes was admittedly fulfilled. Similarly, it fulfilled its undertaking to engage a seismographic consultant. This consultant took readings in the Lake Telemark area and testified that he picked up no ground vibrations which could do damage to the nearby structures. He acknowledged, however, that he was not an expert in air vibrations or their effects. Colonel Whitcomb testified that the undertaking to avoid testing, so far as practical, during recess periods of the Malone School was fulfilled, although the plaintiffs point to evidence which tends to indicate that testing may have taken place during such periods. Weekly reports were submitted to the Township Committee until August 1959. At that time the reports were discontinued and the earlier reports were returned to

the defendant. Colonel Whitcomb testified that this course was followed because the defendant's security officer had determined that "the accumulation of a number of these reports constituted the revelation of information which would be injurious to the national security."

The defendant did engage a consultant to study sound levels and the possibility of designing and constructing a sound suppressor. This consultant testified that he conducted tests in the Lake Telemark area and concluded that the sound pressures were insufficient to produce damage to the nearby structures, but the plaintiffs strongly attack the nature and sufficiency of his tests along with his conclusion. In April 1959 a miniature device for sound suppression was constructed and successfully tested. Colonel Whitcomb testified that after the defendant received the final report in April 1959, it prepared "a comprehensive and formal proposal to the Air Force" for the construction and use of a noise suppressor on the rocket engine and that it was still awaiting approval from the Air Force. The plaintiffs attack the adequacy of the defendant's efforts in connection with the proposed noise suppressor and suggest that it could have proceeded expeditiously without awaiting Air Force action if it had been willing to expend its own funds. In his testimony enumerating the defendant's undertakings, Colonel Whitcomb concluded with the statement that the defendant had agreed that "it would not avoid any responsibility for legal claims." Mayor Vandermark's testimony was that the defendant had undertaken to compensate for "any property damage which could be attributed to the testing which was occurring at their test site." The Colonel and Mayor agreed that special damage complaints were to be honored if certified by the Rockaway Building Inspector and a reputable contractor to be mutually agreed upon by the township and the defendant. The Mayor stated that no contractor was ever mutually agreed upon because, he assumed, "no one ever formally presented a claim to the Rockaway Township governing body." The Building Inspector

testified that, pursuant to instructions from the Mayor, he did examine houses of complainants in the Lake Telemark area and found damage which, in his opinion, was caused by the vibrations resulting from the defendant's testing activities.

In September 1958 a petition seeking relief from the defendant's activities and bearing 185 signatures was presented to the Township Committee and this led to a meeting at which Colonel Whitcomb again spoke on the defendant's behalf. On September 17, 1958 the complaining residents formed the Rockaway Township Property Owners Association which sent protests to the Township Committee and later to the State Department of Health and the State Board of Education. On December 15, 1958 a meeting, attended by representatives of the Association and the defendant, as well as local school representatives, was held in the township. Following this meeting, representatives of the State Department of Health joined with local school representatives in an examination of the Malone School building and an inspection of it during the course of one of the defendant's tests. Their report indicated that there were no significantly adverse effects on the school but the plaintiffs point to testimony that the only test conducted by the defendant during the course of the inspection was of 10 seconds duration. On April 9, 1959 the plaintiffs filed their complaint against the defendant in the Law Division of the Superior Court. Originally there were 16 causes of action but one was voluntarily dismissed. The remaining 15 causes of action concerned 11 married couples and 4 unmarried persons. The complaints contained counts setting forth causes of action sounding in negligence, nuisance and trespass. After the filing of an answer and the entry of a pretrial order, the matter came on for trial in September 1960.

During the trial there was extensive testimony by the plaintiffs with respect to the defendant's activities and the resulting personal discomfort to them and the structural

damage to their homes. Some referred to the "terrific" noise which accompanied the defendant's tests and caused their homes to shake and objects to fall. Others testified that they could see the flames which accompanied the tests and compared the noise and vibration to "the concussion and intensity of a mortar barrage." There was testimony that dishes broke, beds shook, paintings fell, cracks developed and plaster dropped. The testimony with respect to damage included, inter alia, impaired foundations, seam openings and cracked floors, walls, ceilings, chimneys and fireplaces. Some plaintiffs testified that while tests were underway and they were feeling the vibrations, they could actually see new cracks appear and old cracks widen. Colonel Harrison A. Martin, a consulting engineer who testified as an expert for the plaintiffs, examined the cracks complained about by the plaintiffs and testified that in his opinion they were not settlement cracks but were caused by air blasts produced by the defendant's test firings. Mr. Joseph J. Lupinski, a building and general contractor who testified as an expert for the plaintiffs, also expressed the view that the cracks complained about by the plaintiffs were not settlement cracks. He submitted estimates as to the cost of repairs to the plaintiffs' homes resulting from the defendant's testing activities. His estimates ranged from $120 to $3,560 for individual plaintiffs and the aggregate for all of the plaintiffs was $25,605.

The testimony on the defendant's behalf included references to the activities reported upon by Colonel Whitcomb and descriptions of the test firings by the manager and a staff engineer of its Testing Department. In addition there was testimony by Father Joseph Lynch, the seismographic consultant, and by Mr. Kenneth Eldred, the consultant on sound levels. At the request of the defendant, Mr. Sidney M. Schwarz appraised each of the plaintiffs' property at its fair value assuming it had no observable defects, ...

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