Foster v. United States, Civ. A. No. 3895.
| Citation | 183 F. Supp. 524 |
| Decision Date | 29 June 1959 |
| Docket Number | Civ. A. No. 3895. |
| Parties | Josephine FOSTER, Plaintiff, v. UNITED STATES of America, a sovereign power, First Doe, Second Doe, Third Doe and Fourth Doe, Defendants. |
| Court | U.S. District Court — District of New Mexico |
A. T. Montoya, Albuquerque, N. M., and Edwin L. Felter, Santa Fe, N. M., for plaintiff.
James A. Borland, U. S. Atty., Joseph C. Ryan, Asst. Dist. Atty., Albuquerque, N. M., for defendants.
This is an action brought by Josephine Foster against the United States, seeking recovery for the death of her two children, Mary Julia Toribio, age seven, and Crisencio Toribio, age four. Recovery is sought under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671 et seq. It is alleged generally that plaintiff resides on the east side of a canal or irrigation ditch which runs through the small Indian Pueblo of Cochiti. This canal was constructed in the year 1932 by the Middle Rio Grande Conservancy District. Under a contract between the Conservancy District and the United States, acting through the Department of Interior, Bureau of Reclamation, certain construction and maintenance of the canal was undertaken by the Bureau of Reclamation. A bridge across the canal was constructed at sometime, the date is not certain. There were no guard rails or other protection on the sides of the bridge. Sometime before June 17, 1957, again the date is uncertain, a fence had been erected along a side, or the sides, of the canal. This fence, or fences, had been allowed to fall into a state of disrepair, but when the fence became in such state is not disclosed by the evidence, and on the date in question there was no safeguard or protection to keep children or others away from the canal and the waters therein.
From the evidence and the pleadings it appears that on the morning of June 17, 1957, at about the hour of nine o'clock, the two children left their mother's home to go to the west side of the canal, where an aunt lived and whom they frequently visited for the purpose of playing with another child, presumably of their own age.
When the children first began going to the aunt's their mother went with them to show them the way. After they had learned the way she permitted them to go by themselves, and this they did very often. The mother thought it was safe for them to go unaccompanied by anyone. After having taught the children the way to the aunt's home the mother apparently took no steps whatever to assure the safety of the children. It seems evident and I think it can be reasonably inferred from the evidence that she did not even observe the children on any of their many trips to the aunt's home, to see them across the canal in safety. On the day when the children were drowned the evidence does not even disclose when they were first missed, and there is nothing in the testimony to show what happened after the children left their home on the east side of the canal to go to the aunt's residence on the west side of the canal. The body of the little boy was recovered from the canal the same day. The body of the girl, Mary Julia, was not found until the following day.
A ditch rider testified the two children, Mary Julia Toribio and Crisencio Toribio, had been observed playing along the ditch two or three days before the tragedy. At that time the ditch rider warned them not to play in the vicinity of the ditch. This warning to children of four and seven years of age is not too significant. The rider testified that at the beginning of the irrigation season the Governor of the Pueblo was notified that the water had or would be turned into the ditch. He was so notified for the purpose of informing the parents of the children. Whether the Governor ever gave such notice to the parents of the children is not disclosed by the evidence. There were no signs or warnings of any kind, on June 17, 1957, at the bridge or where the fence had been at sometime in the past.
The mother testified the two children had been drowned in the irrigation ditch, to which testimony no objection was made. This testimony coupled with the place where the bodies were recovered establishes the fact that they were drowned in the canal. How the children got into the water is not shown. There is no evidence whatever that they fell from the bridge or slipped, stumbled or fell at some place or point where the fence or fences apparently had been at some prior time. The exact place where they entered the ditch is not shown. Their bodies were found at some distance from the bridge but the exact distance is not disclosed. The mother testified she had never seen the places where the bodies of the children were recovered. Otherwise the evidence discloses the bodies may have been discovered some distance from the bridge, or may have been found in close proximity to the bridge. The evidence is wholly lacking in this regard. There is no evidence of hidden danger nor of pitfall. There was testimony that three children had been drowned in the irrigation ditch. Again, even here, we are confronted with uncertainty. It was not shown how or in what manner the three children were drowned, nor where, except they were drowned in the irrigation ditch. Apparently twins had been drowned at the same place. Details as to the drowning of the third child, or even of the three, are lacking.
Upon these facts as stated, which include practically all the evidence, and in consideration of the law and all presumptions, the Court is asked to return a judgment against the United States in the sum of $40,000.
Recovery by the plaintiff is sought on two theories. In the first count plaintiff charges the defendant with maintaining an attractive nuisance. In the second count the plaintiff alleges the defendant was negligent in not having guard rails along the bridge and in not keeping a fence in proper state of repair.
The Government asserts several defenses in its answer. It denies any negligence on the part of irrigation and reclamation officials or employees. Among other defenses the defendant contends that if any negligence is shown the plaintiff's own contributory negligence bars recovery by her. It also defends upon the ground that the facts bring the case within the exception contained in the Tort Claims Act, which exempts the Government from liability where discretion of officials or employees is involved. Other defenses pleaded will not be discussed.
Liability under the attractive nuisance doctrine does not appear to exist in cases such as the present proceeding. The New Mexico...
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...acts or omissions of the Government, through its agents as a landowner. We are mindful that in Smith we followed Foster v. United States, 183 F.Supp. 524 (D.N.M.1959), aff'd per curiam, 280 F.2d 431 (10th Cir.1960); United States v. White, 211 F.2d 79 (9th Cir.1954); Bulloch v. United State......
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