Duvall v. United States

• Decision Date: 09 February 1970
• Docket Number: Civ. A. No. 602.
• Citation: 312 F. Supp. 625
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Christopher Shawn DUVALL, an infant by his father and next friend, Robert Wayland Duvall, and Robert Wayland Duvall, Plaintiffs, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, v. Radford TILLETT, Third-Party Defendant.

312 F. Supp. 625

Christopher Shawn DUVALL, an infant by his father and next friend, Robert Wayland Duvall, and Robert Wayland Duvall, Plaintiffs, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, v. Radford TILLETT, Third-Party Defendant.

Civ. A. No. 602.

United States District Court, E. D. North Carolina, Elizabeth City Division.

February 9, 1970.

John H. Hall, Jr., Hall & Hall, Elizabeth City, N. C., William E. O'Neill, Jr., Ashcraft & Gerel, Washington, D. C., for plaintiffs.

W. Arnold Smith, Asst. U. S. Atty., Raleigh, N. C., for defendant.

Gerald F. White, Aydlett & White, Elizabeth City, N. C., for third-party defendant.

OPINION AND ORDER

KELLAM, District Judge.

Pursuant to the provisions of the Federal Tort Claims Act, Title 28 § 1346(b), 2671, 2674, 2679, U.S.C.A., the infant plaintiff through his father and next friend instituted this action to recover from the United States damages for injuries sustained as the result of the explosion of a pyrotechnic Navy practice bomb. The parties stipulated that (a) the United States owns and exercises authority over the Naval Practice Bombing Range at Duck, North Carolina; (b) that all administrative procedures required by Title 28 § 2401(b) have been complied with; (c) all required notices have been given and reports made; and (d) that the injury complained of occurred February 19, 1967, at the residence of Radford Tillett, at Kitty Hawk, Dare County, North Carolina.

The Navy Practice Bombing Range (Range) at Duck, North Carolina, was acquired by the United States, in 1943, and was in active use for the training of Navy pilots until about 1965. Navy pilots from nearby bases flew over the Range and simulated bombing by the dropping of explosive pyrotechnic devices which emit smoke and flame upon detonation. The outer cast iron casing of the bomb does not ordinarily shatter from impact with the sandy target area. The Range is located on the sandy strip between the Currituck Sound on the west, and the Atlantic Ocean on the east, known as a part of the Outer Banks, much of which is made up of sand hills or dunes. While not now in active use by the government as a bombing range, the government still exercises authority and control over it. The area bounding the Range is sparsely settled, with the population to the north for some fifteen to twenty miles comprising only a few families. Except when bombing practice was actually being conducted, no effort was made to prevent any person from crossing or going upon the Range. The natives have always had what in reality is "free range" of the Outer Banks.¹ The strip between high and low water constituted their principal highway. One of the government witnesses, who had been stationed at the Range said tourists and others also regularly passed through the Range on the Sound Road (the road to the west of the ocean.)

The entire area, and particularly the Range, had always been known as a splendid place to find Indian relics. Frequent searches were conducted within the boundaries of the Range. Witnesses who often visited the Range said no effort was ever made to keep them from conducting searches for relics, except when bombing practices were in progress. Not only did the Navy know the Range was a splendid site for Indian relics, but testimony revealed that the Office of Naval Research, Department of the Navy, had sponsored an investigation of the area, including the Range, and the results of such research were published. In fact, in 1967 the local newspaper carried a story and picture of the father of the plaintiff, and referred to him as one who "hunts arrowheads as a hobby," and that he had located a "skeleton" while combing the sand dunes near the village of Duck. The story said the bones "may have been an Indian."

Some witnesses said that even while the Range was in active use, when actual bombing practice was not being conducted, they would ask and were granted permission by the Navy personnel to go upon the Range; that often they would pick up bombs; that Navy personnel would look at at the bombs and permit them to carry them away; that no one tried to stop them from picking up the bombs or carrying them away; that the small bombs, like the one here in question, were frequently found on the lawns and in the homes of the people who lived nearby and collected them as souvenirs. Realizing that persons were roaming the area of the Range in search of Indian relics, and for other purposes, and also realizing the danger which existed, the Navy undertook about 1966 to "decontaminate" the Range. Many of the bombs and other objects were collected and piled in an area of the Range. But it appears many bombs were left. Following the occurrence of the injury to plaintiff, signs were prepared warning of the danger existing on the Range. While some signs had been posted before the accident, they were small, had fallen into disrepair or been removed.

In January, 1967, Radford Tillett drove his son Craig, who was then about ten years of age, and the infant plaintiff, his nephew, to Duck to search for Indian relics. They stopped some distance from the Range and roamed the sand dunes. He said they did not see any signs or other markings to mark the Range, although he knew it covered some part of the area. All agree it was not fenced. During their search he observed numerous of the "8 inch smoke bombs" on the sand dunes. He knew what they were, had seen the Navy planes drop them, and had seen them on people's lawns, gardens, in homes and other places, and knew they came from the Range. During the search the boys picked up several of the bombs. He agreed they might take one apiece, as he had "no reason to believe they were dangerous."

On February 19, 1967, the infant plaintiff, Christopher (Chris) was visiting the home of his cousin, Craig Tillett. While Craig and Chris were playing with the old bombs, one of them exploded and injured plaintiff. While playing with the bombs, Chris noticed a "shiny piece" of metal in one of the bombs. He tried to get the bomb apart to see what was in it. He did not know what was inside. While holding the bomb in his hand, he struck it against the concrete, causing it to explode in his hand. The blast caused severe and permanent injuries to plaintiff's left hand. Prior to the accident, plaintiff was left-handed.

The injury involved the severance of the index, middle and fourth fingers of plaintiff's left hand, damage to the muscular structure of the fifth (little finger), damage to the center of the hand, the palm and back of the hand. Skin grafts were made on the back of the hand, and other areas, from the skin of the abdomen. He was hospitalized from the date of the accident until March 4, 1967, and then confined to his home for some period of time, with his left hand and arm immobile and strapped to his abdomen while the skin graft became effective. He was again hospitalized from April 5th through 7th, 1967, and returned to the hospital again for surgery in June, 1968. The attending physician's evaluation of permanent injury sustained to the left hand was a range from seventy-five to ninety per cent of the loss of its use; that while what remains of the hand has grown normally since the surgical procedures, he could not say this normal growth will continue; that later, the boy may have trouble with the fifth (little) finger. There is a large scar on the abdomen from the skin graft, which may require future surgery. Plaintiff has become more nervous and has an emotional problem.

Congress has provided that in cases of this nature, the liability of the United States for tort claims shall be "in the same manner and to the same extent as a private individual under like circumstances." Title 28 § 2674 U.S.C.A. United States District Courts "have exclusive jurisdiction of civil actions on claims against the United States, for money damages * * * for * * * injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances when the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act of omission occurred." Title 28 § 1346(b). Venue is laid in Title 28 § 1402(b).

The accident occurred in North Carolina. Pursuant to the statute, the law of North Carolina will be applied in determining liability. Title 28 §§ 1346 (b), 2674. Murray v. United States, 329 F.2d 270 (4th Cir. 1964); United States v. Price, 288 F.2d 448 (4th Cir. 1961).

In Williamson v. Clay, 243 N.C. 337, 90 S.E.2d 727, at 731, the Supreme Court of North Carolina said, "The law imposes upon every person who enters upon an active course of conduct the positive duty to exercise ordinary care to protect others from harm, and calls a violation of that duty negligence." And in Modern Electric Company v. Dennis, 255 N.C. 64, 120 S.E.2d 533, 539, the Court said, "Actionable negligence is based upon the breach of a duty on the part of one person to exercise due care to protect another against injury, by failing to perform, or in the manner of performing, such duty, as a proximate result of which the latter sustains an injury. Due care being the care an ordinary prudent man would exercise under similar circumstances, and when charged with a like duty." Griffin v. Blankenship, 248 N.C. 81, 102 S.E.2d 451; Barnes v. Caulbourne, 240 N.C. 721, 83 S.E.2d 898.

What constitutes due care or proper care in one case may be gross negligence in another. The care to be exercised must be commensurate with the known danger, or commensurate with the dangerous character of the article. The "degree of care required of persons having the possession and control of dangerous explosives, is of the highest. The utmost caution must be used in their care and custody, to the end that harm may not come to others upon coming in contact with them. The degree of care must be...