Harden v. U.S.

• Decision Date: 15 October 1982
• Docket Number: No. 80-7425,80-7425
• Citation: 688 F.2d 1025
• Parties: Janet L. HARDEN and James M. Harden, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. . Unit B *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1025

688 F.2d 1025

Janet L. HARDEN and James M. Harden, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 80-7425.

United States Court of Appeals Fifth Circuit.

Unit B^*

Oct. 15, 1982.

Burnside & Wall, Thomas R. Burnside, Jr., James B. Wall, Augusta, Ga., for plaintiffs-appellants.

Wm. T. Moore, Jr., U.S. Atty., Kenneth C. Etheridge, Melissa S. Mundell, Asst. U.S. Attys., Savannah, Ga., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before GODBOLD, Chief Judge, JOHNSON and ANDERSON, Circuit Judges.

GODBOLD, Chief Judge:

This tort action, authorized by the Federal Tort Claims Act, 28 U.S.C.A. § 2674, was brought against the United States under Ga. Code § 105-1307 (1976) (current version at Ga. Code Ann. § 74-108), for wrongful death of Clay Harden, 15 year old son of plaintiffs Janet L. and James Harden. After a non-jury trial the district court found that the agent of the government was negligent, and that Clay Harden was negligent, and his negligence a proximate cause, to the extent of 25%. He entered judgment for plaintiffs for $67,586.91, plus interest at 7% from date of judgment. Plaintiffs appeal.

Following are the facts as found by the district court and as supported by the evidence. Clay and 12 or 15 other boys went to a campsite area on United States government property in rural Georgia to initiate Clay and other new members into a so-called fraternity. They paid a fee for the use of campsite 12. Clay and others drank beer they had brought, but Clay was not intoxicated.

The objects of the fraternity were hazing and "hell-raising." Part of the initiation rite was for the initiates to "streak," or run naked in public, on this occasion through other campsites. Those to be initiated stripped naked and were doused with eggs, flour, catsup, and other foods, plus dirt. Members shepherded them toward other occupied campsites. The group, proceeding at a walk and with much noise and shouted profanity, were disorganized, rowdy, and boisterous. Some of the initiates "streaked" through family campsites. Other campers, particularly women, were terrified. Two men heard the commotion, returned to their campsites, and found their wives crouching behind a camper in which they had locked their children for protection. Other campsites were similarly terrorized. At least one shot was fired from an unknown source.

Some person drove from a neighboring campsite and sought assistance from Paul Strang, a ranger who worked only during peak recreation periods. This person told Ranger Strang to go to the campsite area, that there was about to be "a head-knocking contest" down there. Strang went to the area indicated and found a group of campers-men, women and children-excited and agitated and some armed. They told him what had occurred.

The group of initiates had scattered after leaving this area. They shouted obscenities and terrorized campers at another site. The group then began to move in a disorderly but somewhat quieter manner back toward campsite 12. A shot was fired from a truck with an unknown occupant.

For the purpose of searching for the boys, Strang left the campsite area to which he had first gone. As he approached campsite 12 he heard the shot fired from the truck. Some girls had arrived on the scene, and he asked them if there was any trouble and was told there was not. As he drove slowly away along the road he saw, at his left front, two naked boys approaching him, and several other naked males emerging from the woods on his right. He put his flashlight beam on the boys and called to them to halt but received no response. Strang was excited and fearful. He did not know the age or the purpose of the naked boys. He thrust his gun out the window, holding it almost straight up, intending to fire a warning shot in the air. His truck stalled, his body lurched, his gun hand came in contact with the rear view mirror, and these events, combined with his nervousness, caused him to inadvertently discharge the pistol. The bullet struck Clay, one of the two boys on his left, and killed him.

I. Clay's negligence

The district court found the government had negligently maintained the truck that stalled and found Ranger Strang negligent. Harden v. U.S., 485 F.Supp. 380, 389-91 (S.D. Ga. 1980). These findings are not contested. It found Clay guilty of comparative negligence that proximately contributed to his death to the extent of 25 percent and reduced the gross damages accordingly. The findings of the district court on Clay's negligence were:

Wesley Clayton Harden also failed to exercise ordinary care or diligence. First, he did not heed the command of Ranger Paul Strang when Strang directed him to halt. At that time, Strang was in uniform in a marked vehicle, and had all of the visual appearances of a duly authorized law enforcement officer. Second, he willingly and actively participated in an indecent public exposure of himself, a disturbance of the peace, and a sequence of events which he knew, or should have known, would cause fear, excitement, and resentment among other persons lawfully within the Ridge Road Campsite Area. Third, Harden accompanied others whom he knew to be engaged in illegal and opprobrious activities. He knew that shots had been fired during their activities. He knew or should have known that exposure, offensive language, and the conduct of the group would cause fear, excitement, resentment, and possibly irrational defensive measures from other persons lawfully in the Ridge Road Campsite Area. Harden owed a duty to the public, and to other users of the campsite area, to refrain from illegal, criminal, opprobrious, or indecent behavior.

485 F.Supp. at 388. (Footnotes omitted).

The trial court did not err in finding Clay guilty of negligence that proximately contributed to his injury. Strang told the boys to halt. Clay's companion saw the ranger insignia on the side of the truck. The "streaking" at the family campsite had ended, but the boys had not yet reached the campsite they had rented. The conduct of the group had been such that it was likely to, if not intended to, cause alarm among others in the area. The group had precipitated an uproar at campsites in two or three areas sufficient to cause someone to seek ranger assistance. In the uproar two shots were fired. Women, fearful of safety, locked their children in a camper and hid behind it. When Strang arrived people were agitated and some armed. After the boys left the first campsite area they terrorized one or two more campsites. When the encounter came with the ranger, Clay was walking the road, still naked, with other initiates. The district court could properly find that Clay was negligent. The contention that as a matter of law Clay could not be found negligent is patently untenable. Whether the dangerous situation-that Clay had helped to create-had terminated was a question for the finder of fact. Certainly it had not as a matter of law come to an end.

The district court was not plainly erroneous in finding that Clay's negligence was a proximate cause of his death. The intervening act of the ranger in shooting the gun did not break the chain of causation as a matter of law. See William v. Grier, 196 Ga. 327, 26 S.E.2d 698, 699 (1943) (intervening act of a third person does not break causal connection if act could have been reasonably anticipated); Medi-Clean Services, Inc. v. Hill, 144 Ga.App. 389, 241 S.E.2d 290, 293 (1977); Seago Mechanical Contracting Co., Inc. v. Mobile Homes, 128 Ga.App. 261, 196 S.E.2d 346, 349 (1973). As the trial court pointed out, Clay had helped to create the situation of danger that existed. He put himself in a position in which he could anticipate that others would react in some manner such as to cause him injury. The precise form of reaction and injury is not determinative. Medi-Clean Service, Inc. v. Hill, supra 241 S.E.2d at 293. Lewis v. Harry White Ford, Inc., 129 Ga.App. 318, 199 S.E.2d 599, 602 (1973). Clay could anticipate reaction. He exposed himself to the risk of it, and it occurred. For proximate cause purposes it matters not that the reaction was a gun carelessly fired by a ranger rather than a billy club carelessly swung, or a rock or other object carelessly thrown by an aroused parent, a vehicle fleeing the scene driven by a frightened parent, or some other of the general types of reactive acts that might reasonably be anticipated. E.g., Mullis v. Chaika, 118 Ga.App. 11, 162 S.E.2d 448, 451-52 (1968).

Citing Johnston v. Pittard, 62 Ga.App. 550, 8 S.E.2d 717 (1940), the plaintiffs argue that Clay's actions were, as a matter of law, "purely incidental" to his injury. Johnston, however, is easily distinguished from this case. There the plaintiff was the unwitting victim of a practical joke and, unlike here, could not reasonably anticipate that his actions would provoke an injury-causing response. The plaintiff approached a house in the country with a group of friends after they had persuaded him that "wild women" were there. In fact the house was occupied by an angered and frightened farmer who fired shots, causing the plaintiff to run, fall, and suffer injury. In contrast, Clay was not victimized by deception. He instead had reason to expect that his actions would arouse anger, fear, reaction by others, and possibly injury of some kind.

Additionally, the doctrine of last clear chance does not, as the plaintiffs contend, absolve Clay of any comparative negligence. Under Georgia law, last clear chance applies only if the defendant actually knows of the plaintiff's perilous position. It is insufficient to show merely that the defendant should have known of the plaintiff's peril. Southland Butane Gas Co. v. Blackwell, 211 Ga. 665, 670, 88 S.E.2d 6, 10 (1955); Conner v. Mangum, 132 Ga.App. 100, 207 S.E.2d 604, 609 (1974). Although Strang should have known that his handling of his weapon and...