Hamilton v. United States, Civ. No. 109-73-A.

• Decision Date: 16 January 1974
• Docket Number: Civ. No. 109-73-A.
• Citation: 371 F. Supp. 230
• Parties: Linda K. HAMILTON, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

371 F. Supp. 230

Linda K. HAMILTON, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. No. 109-73-A.

United States District Court, E. D. Virginia, Alexandria Division.

January 16, 1974.

A. Andrew Giangreco, Giangreco, Seay & Manuel, Alexandria, Va., for plaintiff.

J. Frederick Sinclair, Asst. U. S. Atty., Alexandria, Va., and George M. Fleming, Trial Atty., Civil Division, U. S. Dept. of Justice, Washington, D. C., for defendant.

JUERGENS,^* Senior District Judge.

MEMORANDUM AND JUDGMENT

Jurisdiction is based on the Federal Tort Claims Act, 28 U.S.C. Sections 1346(b) and 2671 et seq., whereby plaintiff seeks recovery for damages allegedly resulting from the negligence of the defendant United States. The incident occurred at the second overlook at the George Washington Memorial Parkway in Arlington, Virginia. Under the provisions of the Federal Tort Claims Act, the plaintiff may recover under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. Thus, whether the United States is liable to the plaintiff in this case must be determined in the same manner and to the same extent as a private individual under the same circumstances would be liable under the law of the State of Virginia, since the cause of action out of which this case arises occurred in the State of Virginia.

The evidence established that the plaintiff, Linda K. Hamilton, does not remember any of the events which occurred on July 25, 1970, the date upon which the incident out of which this cause arises occurred. Nor does she remember any of the events leading up to the accident or any of the events that occurred subsequent to the accident. The parties agreed that the only actual witness to the events leading up to and the occurrence itself was Terrance Neil Hamilton, plaintiff's husband.

On the morning of July 25, 1970, plaintiff and her husband went for a sightseeing drive and in the course of their drive from Alexandria, N.W., traveled along the George Washington Memorial Parkway to the second overlook past the Key Bridge. The stated purpose of the trip, as supported by the evidence, was to go sight-seeing. It was established that on or about 10:45 a. m. on the day of the accident, at the second overlook on the George Washington Memorial Parkway, Arlington County, Virginia, plaintiff and her husband, together with their dog "Mandy," were sight-seeing, having arrived at the second overlook at approximately 10:15 a. m. The weather was a typical summer day for the area; it was hot and dry; there was no rain. The weather was clear; there were no clouds nor fog in the area. The temperature was in the low to mid 80's; visibility was unlimited.

The second overlook on the George Washington Memorial Parkway is on a United States Reservation owned by the National Capital Park Service, United States Department of the Interior, and is maintained by the George Washington Memorial Parkway. The overlook consists of a parking area which is approximately 200-feet in length with a 6-foot sidewalk abutting the parking area. On the outer edge of the sidewalk there is an 18-inch high stone retaining wall abutting the sidewalk on the Potomac River side.

On the day in question, plaintiff and her husband drove to the overlook, parking their car in the parking area. They got out of their car, taking their dog "Mandy," which was described as a rather small dog and still a puppy. The testimony was that the Hamiltons together with their dog, after parking their car and getting out, went over and sat on the retaining wall for a while, and noting a grassy area below the retaining wall, walked down over the grassy area and came to a path which led along a chain link fence overgrown with honeysuckle. The fence was approximately 5-feet high. In traveling along the pathway adjacent to the honeysuckle, they came to a point where there was an opening in the honeysuckle, where the chain link fence had apparently been cut; they then proceeded through the opening in the chain link fence. Mr. Hamilton stated there was ample room for them to walk through; that Mrs. Hamilton walked through first and he followed; that they proceeded down the pathway which had a decline from 50 to 60 degrees; that after traveling along the path a short distance, approximately 15 to 20 yards, the path came to an end and forked—one portion forked off at about a 90 degree angle to the right and was level. During their course down the path, their dog followed along. At the fork the Hamiltons turned to the right and proceeded 12 to 20 feet to where the path abruptly ended and Mr. Hamilton testified they stopped, since there was heavy overgrowth in front of them and no apparent path leading anywhere. They then decided to turn around and return. As they started to turn around, Mr. Hamilton went to pick up the dog, but it ran between his legs and into the heavy overgrowth. The evidence established that the only sounds from the dog immediately after it went out of sight into the underbrush was some crashing or thrashing around in the underbrush and shortly thereafter the dog began yapping. Upon cross-examination, Mr. Hamilton's testimony in his deposition was brought out. According to the deposition testimony (which Mr. Hamilton admitted), he stated when they reached the end of the path to the right, they decided to turn around, seeing that it was too steep; that he turned to pick up Mandy (the dog), and as she ran between his legs, she was peering over the edge, and as he turned to grab her, she fell through apparently some bushes and overgrowth below. The Hamiltons then returned to the area where the trail forked. After a brief discussion, Mrs. Hamilton stated she would make the descent to retrieve the dog because of her agility and that she had good toes for gripping. She then sat down on the ground at the fork in the path, took off her shoes, sat down on her butt, and began to scoot down to the area where they believed the dog to be. They could still hear the dog yelping below them. She scooted down approximately 5 feet when she started to slide on the dirt and loose rock. As she slid through the underbrush, she disappeared. Mr. Hamilton then called to her and, receiving no response, became worried and proceeded down the same area his wife had gone to attempt to rescue her. He began to slide and saw a straight drop (which it was later learned was 75 to 100 feet sheer drop cliff). He managed to pull himself back up to the fork and ran back to the Parkway, where he summoned a motorist who obtained help. While waiting for the help to return, a second motorist stopped, and the motorist, a man, who was apparently familiar with the area, was able to lead Mr. Hamilton by a different route down to the area where Mrs. Hamilton had fallen.

Mr. Leroy Artis, maintenance supervisor for the National Capital Parks and, as such, agent of the defendant, stated he was familiar with the second overlook site and stated the grass along the Parkway was cut every 8 to 10 days and that he went to the overlook more often than that because he was on the Parkway each day; he stopped at the overlook every 2 or 3 days to check the area; he had a 3-man sanitation crew who collected the trash daily at the overlook site and checked the area to see what, if anything, needed to be done; and his men who were in charge of picking up the trash checked around to see if there was any repair needed and would have noticed if there was a break in the fence. He stated that he had not received a report of any break in the fence, nor had he himself ever observed one. The evidence did not establish that the defendant, or any of its agents, had prior knowledge of the fence having been cut or the opening having been made therein prior to the incident out of which this case arises. Plaintiff's husband testified he did not see any chain link...