Foster v. United States

• Decision Date: 19 February 1963
• Docket Number: Civ. A. No. 952.
• Citation: 214 F. Supp. 181
• Parties: Anna Mae FOSTER, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of Mississippi

214 F. Supp. 181

Anna Mae FOSTER, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. No. 952.

United States District Court S. D. Mississippi, W. D.

February 19, 1963.

Ramsey, Ramsey & Bodron, Vicksburg, Miss., for plaintiff.

Robert E. Hauberg, U. S. Atty., Jackson, Miss., and Edwin R. Holmes, Jr., Asst. U. S. Atty., Jackson, Miss., for defendant.

COX, Chief Judge.

The plaintiff sued the United States under the Tort Claims Act for negligence in the destruction of her property by a fire which occurred at the Waterways Experiment Station of the government near Vicksburg, Mississippi. On July 28, 1958, the plaintiff entered into a five year lease of a space and a long list of government-owned fixtures, equipment and appliances in a cafeteria which the plaintiff operated in said facility until it burned about 3:00 A.M., October 3, 1960. The lease expressly covenanted against any duty of the lessor to maintain the leased premises or to make any repairs thereto, and against damages sustained by lessee's property, but provided that the lessee should exercise due diligence in the protection of the demised premises against damage or destruction by fire and other causes. The lessee even covenanted to indemnify the lessor against such claims. Paragraph 4, paragraph 5, paragraph 8 and paragraph 9 of the lease containing covenants pertinent here are inserted in the footnote.¹

The plaintiff claims that she purchased furniture, fixtures, equipment and supplies which were destroyed in this building by fire and which had a value in excess of ten thousand dollars. The case was tried before the Court solely on a report of a government committee which investigated this fire to determine its origin and cause, a deposition and on stipulation of counsel agreeing that plaintiff's damages were ten thousand dollars. This report, significantly, decided very little and is replete with hearsay statements and conclusions of witnesses having little probative value.

The tenant locked the doors of the leased premises for the weekend at the close of business on Friday, July 31. The government maintained constant watchman service over the entire facility including the cafeteria, and its guard kept a key to the leased premises. The lessor entered the leased premises and performed the necessary janitorial services therein and waxed the floors of the cafeteria on Saturday, August 1. Some one reported a strong smell of natural gas in the building on Saturday morning (August 1) but the repairman found no leaks therein. Later, Saturday afternoon the lessee entered the leased premises to remove something from the refrigerator and she likewise smelled gas and reported it to the lessor but the maintenance man found no leaks. The repairman primarily relied on the flame test to detect the gas leak which he said was reliable. Within thirty minutes prior to this fire, the watchman had made his rounds in the hall of this building and detected no smoke and looked through the glass door into the cafeteria and saw nothing wrong. The leased premises were lighted by fluorescent ceiling fixtures mounted within an inch and a quarter of the ceiling and they burned all night pursuant to the lessor's requirements. The watchman from another point on the reservation observed smoke coming out of the cafeteria and the floor above it and immediately reported the fire. The Vicksburg Fire Department responded to a call for help, but the combined efforts of the equipment at the station and of the municipality were unable to prevent a complete destruction of the leased premises and its contents. The witnesses before the committee substantially testified that the fire originated in the ceiling of the cafeteria. There was no eyewitness to the actual start of the fire, and nobody testified as to exactly where in the cafeteria the fire started, or what started it.

The floor of the cafeteria was concrete, its side walls were made of masonry and the ceiling was celotex which is as combustile as wood. The main concession had five fluorescent fixtures with four lights 48" long and twelve fluorescent fixtures with two lights 48" long in the ceiling of the cafeteria. Early in 1960, one of these fixtures (not located or described in this record) had a ballast or starter to explode and burst into flames during business hours and burned a section of this ceiling before it was extinguished. The lessor voluntarily and gratuitously repaired this damage by replacing the fixture with one just like it, and replaced it on a celotex ceiling to match the rest of the ceiling; and installed it without any protection between the ballast and the ceiling, and suspended the fixture only one and a quarter inches from the ceiling just as the fixture was originally installed. Such installation does not meet the minimum requirements of the National Fire Protection Association which regards such an installation as unsafe, unless the ballast were insulated from the combustible ceiling material, or unless the suspended fixture were suspended not less than one and a half inches from the ceiling. A fluorescent light has such a low voltage requirement that an ignited ballast will not trip the automatic switch in the event of such malfunction and the automatic switch controlling the electrical system in this building was not tripped on this occasion during this fire. There is no evidence to show that this unsafe repair on this occasion had any causal connection with the second fire. It is argued that such evidence sufficiently establishes the defendant's responsibility for this fire as a matter of inescapable reasonable inference from the circumstances shown.

Liability vel non must turn in this case upon whether or not the defendant has breached or violated any duty to the lessee under its lease, or by making such repairs in a substandard manner after the first fire. If there had been a short circuit in the electrical system, it would have tripped the automatic switch and disconnected the current from the building, but that did not happen. One of these fluorescent fixtures in this building simply malfunctioned and was probably assisted by an accumulation of natural gas near the ceiling of the building as a...