Hernandez v. United States

• Decision Date: 04 October 1969
• Docket Number: Civ. A. No. 1-240.
• Citation: 313 F. Supp. 349
• Parties: Jesse HERNANDEZ et al., v. UNITED STATES of America.
• Court: U.S. District Court — Northern District of Texas

313 F. Supp. 349

Jesse HERNANDEZ et al., v. UNITED STATES of America.

Civ. A. No. 1-240.

United States District Court, N. D. Texas, Abilene Division.

October 4, 1969.

Tom Webb, San Angelo, Tex., Malcolm Schulz, Abilene, Tex., W. James Kronzer, Houston, Tex., for plaintiffs.

Kenneth J. Mighell, Asst. U. S. Atty., Dallas, Tex., for the Government.

OPINION

BREWSTER, District Judge.

This action was brought under the Federal Tort Claims Act for damages for personal injuries to Jesse Hernandez, an adult, and Joe Rodriguez, a minor, and for the deaths of Salvador Hernandez, an adult, and of Jesse Rodriguez, a minor, resulting from an explosion on November 29, 1964 of a 37 millimeter warhead on a ranch in Taylor County, Texas, which had been a part of a United States Army artillery practice range during World War II.

The explosion happened on a ranch owned by Clyde Sears, located about twenty-eight miles southwest of Abilene, Texas. All injured parties were invitees on the ranch. Jesse and Salvador Hernandez, brothers, worked there as ranch hands. Joe and Jesse Rodriguez, their nephews, were visiting them at the time.

During World War II, the United States of America acquired about 23,000 acres of range land in the vicinity of Camp Barkley, an army training base. The Clyde Sears ranch was included in the land so acquired. The possession of it was obtained under a lease which stated that it was to be used as a "Training and Maneuver Area and Artillery and Firing Range and for such other purpose as may be deemed necessary by the United States of America." It was under the jurisdiction and control of the United States Army during the period from July 1, 1943, until it was returned to the owner on December 20, 1946, following the closing of Camp Barkley.

The plaintiffs are Jesse Hernandez suing for himself; David Rodriguez, father of Jesse and Joe Rodriguez, suing individually and as next friend for Joe and as temporary administrator of Jesse Rodriguez' estate; and Paula Hernandez, widow of Salvador Hernandez, suing individually and as temporary administratrix of Salvador's estate.

The plaintiffs claim that the defendant knew, or should have known, of the presence of a large number of unexploded ammunition or warheads left on the premises in question when they were released for civilian use; that it was charged with the duty of exercising the high degree of care that would have been used by a very cautious and prudent person under the same or similar circumstances to protect persons on the premises from injury from explosion of such warheads; and that the explosion in question and resulting tragedies were proximately caused by the negligence of the defendant in not using that degree of care in each of the following particulars:¹

1. In failing to inspect the area for dangerous instrumentalities such as the shell that exploded;

2. In failing to erect and maintain devices to warn the public of the potentially dangerous propensities of shells such as the one in question.

The defendant's claims are summarized in the following statement taken from its trial memorandum on file herein:

"The Government's defense in this case involves the following legal theories: (1) The duty of the United States to these plaintiffs has been fully performed; (2) the plaintiffs herein are guilty of contributory negligence; (3) the damages alleged herein were the result of the intervening actions of the plaintiffs and were not caused by the negligence of the United States of America, if any; (4) any potential liability of the United States of America ceased when the land was returned to the lessor on December 20, 1946."

There is little dispute about most of the facts² leading up to the explosion and about the injuries sustained by the four persons as a result thereof. The main argument is over the inferences and conclusions to be drawn from such facts and the law applicable to this case.

The section³ of land in the Clyde Sears Ranch on which the warhead in question was found was identified as Section E-502 on the plat of the Camp Barkley area admitted in evidence. While Section E-502 was not in the area where accurately fired artillery projectiles were supposed to hit, it was in the artillery range and close enough to the impact area that many artillery warheads missing their targets landed on it. Numerous unexploded artillery projectiles were found on Section E-502 and other lands in the immediate vicinity of the artillery impact area both before and after the Clyde Sears Ranch was returned to its owner for civilian use. They were still being found up to the time of the trial. Some of the duds were explosive and others were not. Mr. Clyde Sears' testimony described those found in the later years after the ranch was turned back as usually being "rusty as heck".

The closing of Camp Barkley took place soon after the end of World War II. For several years after such closing the Army, through the news media and personal contact with the ranchers, urged that any artillery duds found on the land formerly making up Camp Barkley be flagged and not touched, and that notice of such finds be given the Army at Fort Hood, a little over 150 miles from Camp Barkley. A demolition squad from Fort Hood answered such calls and either exploded or removed the duds. While the squad put many of such projectiles in their Jeep and hauled them away, they usually tried to explode 37 millimeter shells where they were found, without handling them, on account of their sensitivity. Fort Hood was still in operation at the time of the explosion in question, and its demolition squad continued to render safe any known ordnance on the lands formerly making up Camp Barkley. However, the intensity of its efforts to keep persons on such lands aware of the possible presence of unexploded projectiles and the danger from handling them decreased rapidly after three years or so following the return of the Camp Barkley lands to their owners.

No portion of the Clyde Sears Ranch, or any other part of Camp Barkley as far as the evidence shows, was declared to be wasteland when the Camp was liquidated. All of it was placed in a surplus category and returned to civilian use. In regard to lands of that type, War Department Circular No. 195, dated June 20, 1945, which was in full force and effect at all times material in this case provided:

"* * * Large areas of land have been acquired or leased by the United States for use as maneuver areas, target ranges, bombing ranges, and gunnery ranges. A great portion of such lands will eventually be placed in a surplus category by the War Department and released for civilian use. Any unexploded ammunition or duds which remain on these lands will render them unfit for civilian use unless the areas are neutralized to remove any possible danger to persons, animals or personal property. It is the obligation of the War Department in the interest of the United States to restore such areas by locating and removing or neutralizing, so far as practicable, all explosives which remain thereon."

Prior to the time the Clyde Sears Ranch was released for civilian use, and at all times thereafter up to the occasion in question, the defendant had actual knowledge of the fact that many unspent, explosive artillery projectiles landed on Section E-502 and other lands similarly situated in Camp Barkley. It had constructive knowledge at all times after the land was returned to civilian use that in reasonable probability warheads such as the one here involved still remained on Section E-502 and other such land. The inspection made by it to locate and remove the unexploded duds was wholly inadequate, whether its conduct is measured by the degree of care that an ordinarily prudent person similarly situated would have used under the circumstances, or by the standard of care that a very cautious and prudent person would have exercised.

The defendant's effort to inspect and remove unspent artillery projectiles from the Camp Barkley land to be released for civilian use occurred in the period between June, 1945 and July, 1946. It was not a continuous effort, but the total time of all the work was about two months spread over approximately a year. About 32,605 man hours were devoted to policing the entire 23,000 acre artillery range during the effort. The plan was to spread men out fifteen to twenty feet apart and have them walk the land, tract by tract, in one direction. They were then lined up so as to walk across the tract at right angles to the line of the first trek. German prisoners of war, with enlisted men as supervisors, were used for walkers in the first stages of the inspection and clearance program. For reasons that would be obvious to almost anyone, that plan proved to be unsatisfactory. The prisoners displayed no interest in finding projectiles, and they were replaced by employed civilian laborers after ten days or two weeks. The artillery impact area composed only a small portion of the total land to be policed; but about sixty to sixty-five percent of the time and effort used in such project was devoted to it.⁴ Except for the copy of Captain Pope's report hereinafter mentioned, the defendant did not produce the records showing what was done, as was demanded by the plaintiffs. It said that such records could not be found and had probably been destroyed.⁵ The only witness who had had any personal connection with the preparation of the land in the artillery range for return to civilian use was Captain⁶ Benjamin W. Pope, who was in charge of the project. His best recollection was that his orders were "to go out and what we call police up the range and destroy the unexploded shells that we found, and to remove all car bodies and pieces of shrapnel that we might pick up." His memory as to what was done was hazy, and he was allowed to refresh his memory from a copy of a report he made.⁷ Even then, he could not reliably say whether Section E-502 and other...