BRELAND, BY AND THROUGH BRELAND v. US
| Decision Date | 15 October 1990 |
| Docket Number | H86-0039(G),H86-0056(G) and H86-0167(G).,Civ.A. No. H85-0320(G) |
| Citation | 791 F. Supp. 1128 |
| Parties | Valerie Loucrecia BRELAND, By and Through Beverly B. BRELAND, Guardian and Next Friend, Plaintiff, v. UNITED STATES of America, Defendant. Beverly B. BRELAND, Individually and as Administratrix of the Estate of Charles Adam Breland, Plaintiff, v. UNITED STATES of America, Defendant. Linda K. HENDERSON, Individually and as Administratrix of the Estate of Charles Nicholas Henderson, Plaintiff, v. UNITED STATES of America, Defendant. Addie PARKER, Representative of the Statutory Beneficiaries of Jesse P. Parker, III, Deceased, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Southern District of Mississippi |
Ben F. Galloway, Albert Necaise, Gulfport, Miss., Bryan, Nelson, Randolph, Land and Weathers, Jon Mark Weathers, Paul R. Lambert, John W. Lee, Hattiesburg, Miss., Eddy Parson, Wiggins, Miss., for plaintiffs.
Stephen R. Graben, Asst. U.S. Atty., Biloxi, Miss., for defendant.
BENCH OPINION
This cause came on for trial before the Court without a jury on June 18, 1990. The Court, having fully considered the testimonial and documentary evidence presented by both parties at trial, the arguments of counsel, and the applicable law, and being otherwise fully advised in the premises, makes the following findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure:
Findings of Fact
Beverly B. Breland is the mother and natural Guardian of Valerie Loucrecia Breland, a minor. Beverly B. Breland is the duly appointed Administratrix of the Estate of Charles Adam Breland and is the only authorized representative of the wrongful death beneficiaries of Charles Adam Breland, deceased. Linda Kay Henderson is the Administratrix of the Estate of Charles Nicholas Henderson, deceased, and is the authorized representative of the wrongful death beneficiaries of Charles Nicholas Henderson, deceased. Addie Parker is the representative of the statutory death beneficiaries of Jesse P. Parker, III, deceased. The plaintiffs bring this action against the United States under the provisions of the Federal Tort Claims Act FTCA, 28 U.S.C. §§ 1346(b), 2671-80.
On or about October 23, 1985, a Complaint was filed on behalf of Valerie Loucrecia Breland against the United States of America seeking monetary damages for personal injuries sustained by the minor on March 22, 1984. Separate Complaints were subsequently filed by the wrongful death beneficiaries of Charles Adam Breland (deceased), Charles Nicholas Henderson (deceased), and Jesse P. Parker, III (deceased), seeking all damages allowable under the wrongful death statute of the State of Mississippi which resulted from the deaths of the three minors on March 22, 1984. The four separate actions were consolidated for discovery and trial purposes by the Court's Order dated August 28, 1986.
This litigation concerns the explosion which occurred on March 22, 1984, at the home of Robert and Beverly Breland. On that day, Charles Adam Breland, age 7, Charles Nicholas Henderson, age 4, and Jesse P. Parker, III, age 9, were killed and Valerie Breland, age 10, was injured when a 66 mm LAW Rocket or a portion thereof exploded at the residence of Robert and Beverly Breland. The explosion occurred at approximately 4:45 p.m. while one or more of the minor children were playing with the rocket or a portion of the rocket in the area of the carport of the Breland residence.
An unfired LAW rocket consists of a fiberglass launch tube, rocket motor, and warhead. The LAW rocket is manufactured exclusively for the military and is issued to soldiers in an assembled tube. Once fired, the launch tube is returned while the rocket motor propels the warhead down-range where the warhead is supposed to explode on impact. Occasionally, the warhead does not explode and remains alive (unexploded) where it has landed. An unexploded warhead which has already been fired is known as a "dud." Even where the warhead explodes, the rocket motor remains partially intact. This rocket motor is located inside a brass tube and is not capable of exploding.
On the day of the explosion, Beverly Breland traveled to school to pick up her children, Valerie and Adam, and her sister's child, Jesse Parker, III. On the way home, they stopped at the Parker's house in McHenry which is located adjacent to Parker's Scrapyard. Beverly and Valerie entered the house for twenty to thirty minutes while Jesse and Adam remained outside. Then, Beverly, Valerie, Adam and Jesse entered the Breland automobile and traveled the estimated four miles to the Breland home. At approximately 4:20 P.M., Robert Breland, father of Valerie and Adam Breland and husband of Beverly Breland arrived from work. A few minutes later Linda Henderson, sister of Beverly Breland, and Nicholas Henderson, her son, arrived at the Breland residence. All the children came inside for a little while and then went back outside to the carport to play. At approximately 4:45, the explosion occurred. All of the adults ran outside where they first saw Valerie Breland underneath a sheet of plywood and sitting on a go-cart. They immediately removed her to the lawn because the go-cart and carport were on fire. They discovered Adam and Jesse Parker, III, lying motionless on the ground. After ascertaining that these two were dead, Robert Breland picked up Nicholas Henderson and handed him to Linda. Linda tried to comfort Nicholas and Valerie. Various neighbors began to arrive and one of them drove Valerie and Nicholas to the Stone County Hospital. Nicholas and Valerie were later transferred to Forrest General Hospital in Hattiesburg where Nicholas died. Valerie suffered shrapnel wounds all over her body, the loss of a small portion of her foot, and loss of the lens on one of her eyes.
Since the Breland residence is in Stone County, Mississippi, the Stone County Sheriff's Department was informed of the explosion. Sheriff Eldon Ladner travelled to the Breland residence where he and his deputies conducted an extensive investigation. By the time he had arrived, photographs had been made of the entire scene. His investigation recovered two LAW rocket motors and numerous fragments of metal. He found one of the rocket motors (Exh. P-29) a few feet from the carport and the other one a few feet farther away. Sheriff Ladner did not know if either of the rocket motors were involved in the explosion.
Colonel Lee Russell, Director of State Personnel for the Mississippi Military Department, was requested to conduct an investigation for the Army's civilian claims facility. While conducting his investigation, Colonel Russell examined the two LAW rocket motors that were recovered from the Breland residence. He found a "nose cone" among the items recovered from the Breland residence but was not sure what weapon it was from. Russell also examined a two-inch threaded piece of metal that was given to him by Robert Breland. Russell did not ascertain exactly what exploded. He also could not determine if either LAW rocket motor was attached to the explosive. He thought that there must have been a third law rocket piece which exploded. Russell was informed by the Explosive Ordnance Detachment (EOD) at Camp Shelby that it had recovered three more LAW rocket motors at the Parkers' Scrapyard.
Robert Breland revealed that on the Saturday preceding the explosion, Adam had found two brass tubes with fins (which he identified as resembling the two LAW rocket motors recovered from the Breland residence) at the Parker Scrapyard. Robert Breland said that he asked Jesse Parker, Jr., if Adam could have the items and he said that he could. Jesse Parker, Jr., denies this. Robert thought the items were safe because they were hollow. The Brelands took the items to their residence and Adam kept them on the carport where he played with them. Robert denies that these two items had a "warhead" attached to them.
One of the rocket motors recovered from the Breland residence had an identifiable lot number. Russell discovered that LAW rocket motors with this lot number were assembled into LAW rockets which were shipped to military bases all around the country, including Camp Shelby. Although he testified that it was possible and 60% probable that it came from Camp Shelby, Russell could not trace this LAW rocket motor to Camp Shelby. He also did not find out when the rocket was taken from Camp Shelby (if it was taken from Camp Shelby). Russell did not find how the explosive got to the Breland residence. Further, all of the plaintiffs denied any firsthand knowledge of how the children came to be in possession of the rocket, who brought the rocket to that location, when it was brought there and from where it came. Although Robert and Beverly Breland surmise that one of the children picked up the rocket at the Parker Scrapyard in McHenry, Mississippi earlier that day and brought it to the Breland residence, neither of them are personally aware of the circumstances by which the rocket arrived at their home. Jesse Parker, Jr., and Addie Parker, owners of Parker Scrapyard, denied any knowledge of how the rocket came into the possession of the minor children on the occasion of the explosion. Similarly, Linda Henderson denied any knowledge of the circumstances by which the rocket came into the possession of the minor children at the Breland residence on March 22, 1984. All plaintiffs contend however that the rocket which exploded on March 22, 1984, came from Camp Shelby, Mississippi, a National Guard training site located approximately thirty (30) miles from the Breland residence. The plaintiffs deny any knowledge of the circumstances which led to the rocket being removed from Camp Shelby, how the rocket was removed, who removed it, when it was removed, from where it was removed, why it was removed and to where it was taken.
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Conlon v. U.S., Civil Action No. 94-3140 MLP.
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