dissenting.
Although there are facts in this case which make, it hard to conclude that the United States should not be held accountable for the plaintiffs’ injuries, I think that a dispassionate analysis of the applicable legal principles leads to that conclusion. I, therefore, dissent.
At the outset, it is necessary to recognize that the United States was under no duty to employees of Thiokol initially to include in the Thiokol-Army Contract a hazardous classification of the trip flare illuminants. Nonetheless, there would be authority under such cases as Seagraves v. ABCO Mfg. Co., supra, and Capital Auto Co. v. Shinall, supra, for holding the United States liable for failing to communicate the change in classification to Thiokol once the classification system was incorporated into the contract, were it not for the fact that the express terms of this contract established the DOD illuminant classification as a minimal safety requirement only and precluded Thiokol from relying thereon in discharging its safety responsibilities.
Here, the federal district court refused to give effect to these express terms of the contract. The federal district court ruled: “The Government cannot deal Thiokol’s employees out by making a rule that their safety was the sole responsibility of the contractor.” 503 FSupp. at p. 289.1 must disagree with this conclusion, because the law of this state as applied to the particular facts of this case does make the safety of Thiokol’s employees the sole responsibility of Thiokol. In other cases, Code Ann. § 105-502 (2) would render the employer of an independent contractor liable for the contractor’s negligence where the work to be done constitutes an ultrahazardous activity. However, as noted in the majority opinion, this strict liability for ultrahazardous activity is unavailable under the Federal Tort Claims Act.
It is also difficult for me to conceive how the failure of the United States to inform Thiokol of the change of illuminant classification can be considered the proximate cause of the explosion, since the evidence establishes that the Thiokol executives already knew that *28the illuminants were improperly classified as Class 2 fire hazards only. Thus, it can be seen that the real omission for which the United States is being held liable is its failure to have exercised whatever contractual power it had to have Thiokol abate the negligent acts committed by it in its performance of the Thiokol-Army Contract. In my opinion, this imposition of liability is unsustainable in view of the well-established rule that the employer of an independent contractor is not liable for the contractor’s negligence. There are exceptions to this rule, but, as the majority recognizes, the federal district court has found that here the evidence is insufficient to bring the United States within any of those exceptions. I respectfully dissent.