Akiona v. US
| Decision Date | 22 January 1990 |
| Docket Number | 87-0894-SPK.,Civ. No. 87-0882-SPK |
| Citation | 732 F. Supp. 1064 |
| Parties | Aaron K. AKIONA, Plaintiff, v. UNITED STATES of America, Secretary of Defense, and John Does 1-25, Defendants. Adam BAKER, Bonnie Baker, and Edward W. Moore, III, Plaintiffs, v. UNITED STATES of America, Secretary of Defense, John Does 1-10, Doe Corporations, Partnerships, and/or Other Entities 1-10, Defendants. |
| Court | U.S. District Court — District of Hawaii |
Eric A. Seitz, Joan M. Yamaguchi, Honolulu, Hawaii, Lowenthal, August, Graham
& Seitz, Wailuku, Hawaii, for plaintiff Aaron K. Akiona.
David L. Turk, Jan T. De Werd, Turk & Agena, Honolulu, Hawaii, for Adam and Bonnie Baker and Edward W. Moore, III.
Theodore G. Meeker, Asst. U.S. Atty., Daniel A. Bent, U.S. Atty., Honolulu, Hawaii, for defendants.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This matter came on for trial on January 8, 1990. Having considered all the evidence, memoranda and arguments of the parties, the court hereby makes the following findings of fact and conclusions of law.
Most of the salient facts in this case have been stipulated to by the parties. The plaintiffs bring their claims against the United States government under the Federal Tort Claims Act, and this court has jurisdiction pursuant to 28 U.S.C. § 1346(b). As the plaintiffs reside in the State of Hawaii and the claims arose in this state, venue is proper in this court pursuant to 28 U.S.C. § 1391(e).
Plaintiffs Aaron K. Akiona, Adam Baker, and Edward W. Moore, III were injured on June 1, 1985, at approximately 1:50 a.m., when a hand grenade was thrown in the parking lot of the Pirate Bully Hayes restaurant in Pearl City, Hawaii. It exploded among a group of people. Dennis Keliinui Kaululaau was arrested by Honolulu police and charged with attempted murder for the incident. Kaululaau was subsequently convicted at a state trial and is presently serving a lengthy prison sentence.
The only physical evidence remaining from the grenade was the handle or "spoon," which was recovered by the police. Although somewhat damaged by the explosion, the lot number imprinted on the spoon could be read and determined to be either HRV 1-50 6-66 or HRV 1-51 6-66. A specific determination between the two possible numbers could not be made due to the condition of the spoon. An investigation by the Bureau of Alcohol, Tobacco and Firearms (hereinafter "ATF") discovered that both lots of grenades had been manufactured by the Harvel Kilgore Corporation of Tennessee in 1966 for the United States government. Lot 1-50, which consisted of 30,000 grenades, was shipped to the Iowa Army Ammunition Plant in Burlington, Iowa. Lot 1-51, was shipped to varying locations. Of the total 24,707 grenades in this second lot, 700 were shipped to Okinawa, 12,557 were shipped to Missau, Germany, and 11,450 were shipped to Aliamanu, Hawaii. All of these shipments occurred between 1967 and 1969.
This is all that is known about the grenade that injured the plaintiffs. Further investigation by ATF and the military services failed to provide any additional information regarding the distribution or handling of the grenades in lots 1-50 or 1-51. The lack of information is not surprising given that the United States government has a regulatory policy authorizing the destruction of all records dealing with stored ammunition and explosives two years after the disposition of the ammunition or explosives. This policy is in force although there are, for our purposes, conflicting regulations requiring the investigation and reporting of lost, stolen, or missing arms and explosives.
Kaululaau, while testifying both at his criminal trial and during his deposition for this litigation, has maintained his innocence in the throwing of the grenade. Thus, he has not provided any information on how the grenade ended up in his possession. There is no evidence, however, to the effect that Kaululaau possessed or used the grenade on June 1, 1985, with the prior knowledge or consent of the United States.
Plaintiffs Akiona, Baker and Moore have suffered a great deal from the grenade explosion. Akiona and Baker in particular have endured serious, painful, and permanent injuries to their heads, arms, legs, and chests. They each underwent several surgeries and extended periods of hospitalization, and will continue to require medical treatment and care in the future. Up to this point, plaintiff Akiona has incurred medical expenses in the amount of $43,479.27. Plaintiff Baker has incurred medical expenses in the amount of $55,801.54. Plaintiff Moore has incurred medical expenses in the amount of $809.35. As a result of their grenade injuries, plaintiffs have suffered and will continue to suffer the loss of income and earnings.
The plaintiffs filed their claims in a timely manner and have exhausted their administrative remedies as required by the Federal Tort Claims Act.
The plaintiffs seek compensation under the theory that the grenade came to be in Kaululaau's possession through the negligence of the United States. Although the plaintiffs cannot prove negligence directly due to the lack of information available on the grenade, they argue that the doctrine of res ipsa loquitur should apply to this case. The application of this doctrine "relieves the plaintiffs from showing any particular acts of negligence and places on the defendant the burden of explaining that the accident did not occur from want of care on its part." Guanzon v. Kalamau, 48 Haw. 330, 332, 402 P.2d 289, 291 (1965). In response, the government presents two arguments. First, that the res ipsa loquitur doctrine should not apply because there exist numerous explanations, other than the government's negligence, as to how the grenade came into Kaululaau's possession. Second, the government argues that even if negligence were found, liability would not attach because Kaululaau's criminal act was not foreseeable and thus the government had no duty to the plaintiffs, and further, any government negligence was not a proximate cause of the plaintiffs' injuries.
Addressing the government's first argument, the court finds that the application of res ipsa loquitur is appropriate for this case. The doctrine is applicable "whenever a thing that produced an injury is shown to have been under the control and management of the defendant and the occurrence is such as in the ordinary course of events does not happen if due care has been exercised." Cozine v. Hawaiian Catamaran, Ltd., 49 Haw. 77, 82, 412 P.2d 669, 675 (1966). Moreover, the requisite "control and management" need only be established at the time of the negligence, not at the time of the injury. Guanzon v. Kalamau, 48 Haw. 330, 402 P.2d 289 (1965); Jenkins v. Whittaker Corp., 785 F.2d 720, cert. denied 479 U.S. 918, 107 S.Ct. 324, 93 L.Ed.2d 296 (9th Cir.1986).
In the instant action, there is no question that the grenade which caused plaintiffs' injuries was initially in the possession, control and management of the United States government. The sparse evidence available on the grenade establishes that it was manufactured for and shipped to the United States government. Furthermore, decisions by the state's highest court have established that the inability to negate all other possible explanations besides the defendant's negligence does not prevent a plaintiff from benefitting under the res ipsa loquitur doctrine.
In Cozine v. Hawaiian Catamaran, Ltd., 49 Haw. 77, 412 P.2d 669 (1966), the Supreme Court of Hawaii considered the res ipsa loquitur doctrine and rejected an argument similar to the one brought by the government in the present action. The defendant in Cozine contended that the issue of negligence should not have gone to the jury because the accident therein could have been caused in ways other than the defendant's negligence. In reply, the court stated:
The rule of res ipsa loquitur ... means that `the facts of the occurrence warrant the inference of negligence, not that they compel such an inference' (citations omitted).... There was enough evidence in the present case to take the case to the jury. Perhaps less would have sufficed. Defendant's insistence that a full explanation of the accident be produced in order for the case to reach the jury, if acceded to would negate the doctrine of res ipsa loquitur altogether. (emphasis added) Id. at 85, 412 P.2d at 677.
In the instant action, the government identifies several possible scenarios for how the grenade got into Kaululaau's possession without involving the actionable negligence of the United States. These include: theft from a properly secured facility involving no negligence on the part of the United States; negligence on the part of the United States in a foreign country leading to possession by a third party who shipped the grenade back to the United States; theft or negligent loss by an ally to whom the grenade was legally transferred. It is the government's contention that since the plaintiffs cannot eliminate these and other reasonable explanations, the inference of negligence would be inappropriate here.
Clearly, given the ruling in Cozine, the government's argument cannot stand. Further, the Hawaii Supreme Court's subsequent decision in Winter v. Scherman, 57 Haw. 279, 554 P.2d 1137 (1976), indicates that speculative hypotheses such as those proposed by the government need not be given great weight and need not prevent a finding of negligence, especially when these other possibilities also lack evidentiary support.
In Winter, both the driver and passenger of a van were killed when the van collided with a utility pole. The father of the passenger brought an action against the estate of the driver. There was no other car involved in the accident, no witnesses and no evidence of defects in the van or the highway. The defendant estate argued, however, that the inference of driver negligence could not be made,...
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Akiona v. U.S.
...had been negligent in failing to keep the grenade out of unauthorized hands and awarded damages to the plaintiffs. Akiona v. United States, 732 F.Supp. 1064 (D.Haw.1990). The district court reached its decision by applying res ipsa loquitur to infer that the injuries would not have happened......