## Facts

- On March 8, 1976, an explosion at a Celesco Industries facility in El Dorado, Arkansas, killed multiple employees, including Shirley J. Kelly and Eliza Walker.
- Several wrongful-death actions were brought against the United States under the Federal Tort Claims Act (FTCA) and were consolidated; the case was tried in phases, and this opinion addresses damages after liability had already been established.
- The damages phase was tried to the court (bench trial) beginning February 2, 1987; some plaintiffs announced a stipulation with the government as to the amount of damages, and the stipulation was submitted as a joint exhibit.
- The remaining claims required the court to determine Arkansas wrongful-death damages for statutory beneficiaries (including mental anguish) and, where supported, survival-type damages for the decedent’s own injuries (including conscious pain and suffering).
- Shirley Kelly survived about 32 hours after the explosion with third-degree burns over roughly 95% of her body; her face was unrecognizable.
- Shirley and her husband, Willie D. Kelly, had a loving relationship. After her death, Willie never remarried, could not remain in Shirley’s hospital room for more than about 20 minutes, had severe emptiness on holidays, barely slept, and lost about 30 pounds.
- Shirley’s minor daughters did not remember the explosion. After Shirley’s death, her mother, Ruby Jones, and sister, Dorothy Jones, took on parental responsibilities for Shirley’s four children for about 11 years.
- Ruby Jones lived near Shirley, visited often, and babysat. Ruby also could not stay in Shirley’s hospital room, was hospitalized after the death, and lost about 18 pounds.
- Dorothy Jones (Shirley’s sister) had worked at Celesco but quit because of the memory of Shirley’s painful death.
- Terry Jones (Shirley’s brother) visited Shirley frequently and spoke with her daily before the explosion; Shirley’s injuries disturbed him so much that he would not return to the hospital, and he quit his job at Celesco.
- Eliza Walker died instantly and also suffered third-degree burns over roughly 95% of her body.
- Eliza’s daughter, Gertie B. Mitchell, identified Eliza’s remains by a unique gold tooth; Eliza and Gertie had an extremely close relationship, with frequent visits and child-care help.
- Eliza and her brother, John Nolan, visited at least monthly throughout their adult lives. John did not see Eliza’s body, but was told her remains had been collected in a basket; he suffered many sleepless nights and required medical treatment after Eliza’s death.

## Issues

1. In an FTCA action for deaths occurring in Arkansas, what categories of damages may be awarded under Arkansas wrongful-death and survival law, including mental-anguish damages for statutory beneficiaries and damages for a decedent’s conscious pain and suffering?
2. What proof is sufficient to show compensable mental anguish for particular beneficiaries, and how should the court determine individual amounts based on the beneficiaries’ relationships with the decedent and the demonstrated effects of the loss?

## Decision

- The court conducted a consolidated, damages-only bench trial and made findings of fact and conclusions of law under Federal Rule of Civil Procedure 52.
- The court accepted the parties’ stipulation as to damages for certain plaintiffs and ordered judgment for those plaintiffs in the stipulated amounts.
- For claims not resolved by stipulation, the court applied Arkansas wrongful-death and survival law to award damages that included:
  - Mental-anguish damages for statutory beneficiaries, determined separately for each beneficiary based on the proof of the relationship and the severity and duration of suffering; and
  - Survival-type damages for the decedent’s own injuries where the evidence showed conscious survival and severe suffering (including Shirley Kelly’s approximately 32 hours of catastrophic burns before death).
- The court entered specific money judgments against the United States for each plaintiff/estate consistent with these determinations.

## Legal Principles

- Under the FTCA, the United States’ liability and the measure of damages are determined by the substantive law of the state where the tort occurred; here, Arkansas law governed the available elements of wrongful-death and survival recovery.
- Arkansas wrongful-death law permits statutory beneficiaries to recover damages for mental anguish caused by the death, in addition to recoverable economic losses.
- Mental-anguish awards depend on the evidence as to the closeness of the relationship and the demonstrated impact of the death, including objective effects such as inability to sleep, weight loss, hospitalization or medical care, and major changes in work or family life.
- Wrongful-death damages are assessed for beneficiaries individually rather than as a single undifferentiated family loss.
- Arkansas survival law allows recovery by the estate for the decedent’s own damages occurring before death, including conscious pain and suffering when the proof shows awareness and suffering for some period before death.

## Conclusion

Lowe v. United States is an FTCA damages decision arising from the 1976 Celesco plant explosion in Arkansas in which the court, after a bench trial on damages and enforcement of stipulated awards for some plaintiffs, applied Arkansas wrongful-death and survival law to award individualized damages for beneficiaries’ mental anguish and, where supported by evidence such as Shirley Kelly’s 32-hour survival with catastrophic burns, the decedent’s conscious pain and suffering, along with related economic losses.


Lowe v. United States, 662 F. Supp. 1089 (1987)