Denney v. United States

• Decision Date: 22 November 1950
• Docket Number: No. 4071.,4071.
• Parties: DENNEY v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

185 F.2d 108 (1950)

DENNEY v. UNITED STATES.

No. 4071.

United States Court of Appeals Tenth Circuit.

November 1, 1950.

Rehearing Denied November 22, 1950.

Martin A. Threet and Joseph R. McNeany, Albuquerque, N. M., for appellant.

Albert H. Clancy, Asst. U. S. Atty., Santa Fe, N. M. (Everett M. Grantham, U. S. Atty., Albuquerque, N. M. was with him on the brief), for appellee.

Before BRATTON, HUXMAN and MURRAH, Circuit Judges.

MURRAH, Circuit Judge.

Appellant, as administrator of the estate of William Myre Denney, brought this action under the Federal Tort Claims Act, 28 U.S.C.A. 931 (now Section 1346), seeking damages for the wrongful death of his decedent, who was killed by an unexploded artillery shell, left upon a target range of the United States in Dona Ana County, New Mexico. The basis of liability is an alleged public nuisance; and negligence in the operation of an ultrahazardous activity. As the trier of the facts, the trial court found that although the "shells or duds" were "a dangerous instrumentality when handled by any person not familiar with their mechanism," the defendant was not negligent in leaving them in the vicinity of the target, nor was its negligence the cause of the death of the deceased"; that death "was caused solely by his acts or that of his companion in handling the unexploded shells or duds." Judgment was entered for the defendant.

There were no eyewitnesses to the fatal accident, but the facts leading up to decedent's death, as developed by the testimony of his companions, are not in dispute. The decedent, at the time of his death, was seventeen years of age, a junior in high school and above average in intelligence. For some years prior to his death, the United States Army had maintained and operated a target range in an isolated and desolate area approximately sixteen miles from Las Cruces, New Mexico. On the date of his death, decedent and five other boys about his age, entered upon the range in search of a cave. The area was enclosed by a fence, but there were no posted signs and the boys did not know that they were upon the range until they began to see "block houses" and shells upon the ground. At one point they stopped, picked up one of the shells and loaded it in their truck. When they reached a fork in the road, which they believed led to the cave, the decedent and a boy by the name of Warren, left their companions and went to investigate a "white object" about a quarter of a mile away.

The other boys located and explored the cave. When they came out of the cave about forty minutes later they saw what appeared to be "dust" in the vicinity of the "white object," and shortly thereafter heard an explosion. Upon investigation, they found the body of the Warren boy near the "white object" (an automobile covered with a white canvas and used as a target), but could not at that time find the deceased. Later small pieces of his body were found. They stated that the area around the target was scattered with shells; they did not know whether they were exploded or unexploded; they could not remember seeing any depression from the explosion, but stated there was a small smoldering fire with a shell in the middle of it.

The only other testimony before the court was that of Major Montgomery, an expert Ordnance Officer of the United States Army. He was of the opinion, from the evidence and physical facts, that if the decedent and his companion were killed by a "dud" it would have been a 90 millimeter. He stated there was an Ordnance regulation requiring that all unexploded shells found upon the range be reported to the demolition crew; that many times the 90 millimeter shells were partially buried in the ground and that in removing them from the range, ordnance men used a pick and shovel; that they were not "easy to activate" — that you have to "definitely do something to make them explode," such as "unscrewing the fuse," or by a "major disturbance." Upon inquiry by the court, the Major stated that for the body to be completely disintegrated as it was, he would estimate that decedent was "sitting straddle" the shell, which is the ordinary position when attempting to lift them out of the ground.

Appellant contends that the unexploded shells or duds on the target range constituted a public nuisance, and therefore the rule of strict or absolute liability should have been applied. Although the term "nuisance" defies universal definition, in legal contemplation it may fairly be said to be the unreasonable, unwarranted, or unlawful use of property, which causes injury, damages, hurt, inconvenience, annoyance or discomfort to one in the legitimate enjoyment of his reasonable right of person or property. 39 Amer.Jur. Nuisances, Sec. 2; 46 C.J. Nuisances, 645-6; Maier v. Publicker Commercial Alcohol Co., D.C., 62 F.Supp. 161, Id., 3 Cir., 154 F.2d 1020. Nuisances are classified as nuisances per se and nuisances in fact. A nuisance per se is generally defined as an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or...