Medlin v. United States, Civ. A. No. 4486

• Citation: 244 F. Supp. 403
• Decision Date: 09 August 1965
• Docket Number: 4967.,Civ. A. No. 4486
• Parties: Neal Ray MEDLIN by His Guardian ad Litem, Burley G. Medlin, Plaintiff, v. UNITED STATES of America, Defendant. Frances S. MEDLIN, Burley G. Medlin and Neal Ray Medlin by His Guardian ad Litem, Burley G. Medlin, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of South Carolina

244 F. Supp. 403

Neal Ray MEDLIN by His Guardian ad Litem, Burley G. Medlin, Plaintiff, v. UNITED STATES of America, Defendant.

Frances S. MEDLIN, Burley G. Medlin and Neal Ray Medlin by His Guardian ad Litem, Burley G. Medlin, Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. A. Nos. 4486, 4967.

United States District Court W. D. South Carolina, Greenville Division.

Heard June 9, 1965.

Decided August 9, 1965.

COPYRIGHT MATERIAL OMITTED

Benjamin A. Bolt and C. Ben Bowen, of Bolt & Bowen, Greenville, S. C., for plaintiffs.

John C. Williams, U. S. Atty., and Albert Q. Taylor, Jr., Asst. U. S. Atty., Greenville, S. C., for defendant.

HEMPHILL, District Judge.

Consolidated actions by the plaintiffs against defendant for damages under the Federal Tort Claims Act¹ for personal injuries to the plaintiff Neal Ray Medlin and for medical expenses and loss of wages and services by said plaintiff's parents, Burley G. Medlin and Frances S. Medlin, alleged to have been sustained by plaintiff Neal Ray Medlin as a result of an explosion of a pyrotechnic device, owned by agents of defendant, on September 27, 1963. Each of the plaintiffs allege that the damages sustained by them were caused by certain negligent acts of defendant's Army personnel acting within the scope of their duties as such employees of defendant. Heard by the Court without a jury.

Upon conclusion of plaintiffs' evidence, defendant moved for an involuntary dismissal on the ground that plaintiffs had shown no right to relief², which motion was taken under advisement by the Court; upon conclusion of defendant's presentation, defendant made timely motion for a directed verdict which is treated herein.

Some time prior to July 25, 1963, the Army, planning to engage in maneuvers in Laurens County, South Carolina, to be known as Swift Strike No. III, obtained permits from property owners to go across and over their lands during the period July 25, to August 25, 1963. Plaintiff Frances S. Medlin executed one of these permits, which is in evidence. The permit gave to the government the right, among other things, to construct camp sites. It provided that the government would have the right for a reasonable time after expiration of the permit to remove all property placed thereon, and that all materials used or placed on the property were to remain the property of the government. A camp site was located across the highway immediately in front of the Medlin home, approximately 150 yards away.

On September 27, 1963, Neal Ray Medlin, then 10 years and nine months of age, while playing near his home found, on property other than that of his parents, a M-110 gunflash simulator, a United States Army pyrotechnic device, left by Army personnel who had recently completed full scale maneuvers in the area. Neal Ray took the device to a cousin, Keith Davenport, about 18 years of age, who attempted to open it and being unsuccessful, threw it into the air and onto the paved roadway in which they were standing. Neal Ray then threw it into the air and it came apart upon impact, causing the contents to spill out onto the road. Keith then asked Neal Ray for matches, and when he answered that he had none, Neal Ray volunteered to obtain some at his home, some 350 feet away. Upon Neal Ray's return with matches, Keith lit a leaf and stuck it into the powder from the device with no results. Neal Ray then, with Keith looking on, inserted a burning leaf into the powder, kneeling about two feet from the substance. The powder then sparked, whereupon Keith attempted to pull Neal Ray away, and it ignited in a flash which burned Neal Ray about the face and body.

It is not disputed that the simulator was the property of the government and was left by the Army personnel when they abandoned the camp. Plaintiffs offered other objects used by the Army during the Swift Strike exercises, such as a belt of blank cartridges, boxes of blank cartridges, flares and explosives which had been left unguarded upon the premises with no warning sign.

Army personnel knew that children visited this camp site. Neal Ray testified that he visited with the soldiers during the maneuvers. He also testified that he had played in this area all of his life. There were no warning signs posted at or near the camp site warning children, or anyone, of the danger of the objects left there. Neal Ray Medlin had been directed by his father to turn over any ammunition or items found by him to his father. He had on occasion carried water to Army personnel and was acquainted with the guns and implements in their possession.

This Court has jurisdiction of the subject matter and the parties.³

The United States is not liable in the absence of fault for injuries resulting from an "ultra hazardous activity" or an "inherently dangerous condition." Dalehite v. United States, 346 U.S. 15, 44-45, 73 S.Ct. 956, 97 L.Ed. 1427 (1953); Voytas v. United States, 256 F.2d 786 (7 Cir. 1958); United States v. Inmon, 205 F.2d 681 (5 Cir. 1953); Porter v. United States, 128 F. Supp. 590, 593 (E.D.S.C.1955) aff'd 228 F.2d 389 (4 Cir. 1955). Nor is the mere ownership of explosives sufficient, regardless of the dangerous nature.

But, aside from the inevitable conclusion that these were dangerous devices, as shown by the incident here, the record reveals these instructions were given to the soldiers on the maneuvers:

"3. Individual Instructions.⁴ a. Pyrotechnic Devices. Each soldier should be particularly careful not to discard or leave behind any blank ammunition, artillery simulators or other pyrotechnic or explosive devices. These devices are extremely dangerous, especially to children, and could cause death or serious bodily injury."

Also in the instructions to Commanders, No. 2, Subsection g:

"Area Police. Commanders of all echelons will insure that all areas used by their units are properly policed, that blank ammunition, artillery simulators or other pyrotechnic or explosive devices are not discarded or left behind, and that foxholes, trenches, latrines, and garbage pits within the area are properly filled and marked."

This Court concludes that there is sufficient evidence of failure of Army personnel to properly police, or clean up, the area, upon completion of maneuvers. If such action were not proper, expected, or required, maneuver areas would be constant, conscious, arenas of danger and injury. Neither the law, nor custom, expects or condones such a policy.

This Court reviews similar cases.

In Parrott v. United States, 181 F. Supp. 425 (S.D.Calif.1960) the district court decided that upon lands once leased by the Government, it could be considered a "possessor" of land for purpose of attractive nuisance doctrine, and that it would be liable for injuries caused by explosives left upon its former leasehold. The property was released by the Government to its private owners in 1947 and the Government had been out of possession since that time. The accident and injury to the Parrott child and others occurred on February 12, 1957.

"The boys took the grenade home, and, after some futile attempts to take it apart, plaintiff Alvy Parrott threw it upon the pavement. It immediately exploded, inflicting various injuries, all serious, upon the three boys. Plaintiffs base their case upon the assertion that Army personnel failed to properly police or de-dub the firing range prior to its return to civilian use. The court finds that this is true. `The risk incident to dealing with * * * explosive * * * matters * * * requires a great deal of care to be exercised. In other words, the standard of care required of the reasonable person when dealing with such dangerous articles is so great that a slight deviation therefrom will constitute negligence.'"

181 F.Supp. at 427.

This Court, sitting as a trier of fact, is mindful of its responsibility. In United States v. Stoppelman, 266 F.2d 13, at page 18 (8th Cir. 1959), in affirming an award against the United States for injuries sustained by a minor, who after Marine Corps maneuvers picked up unexploded live blank cartridges left on the ground and which were exploded by the firing of a BB pellet from an air rifle by plaintiff and others, the Court stated:

"Certainly the negligence of defendant in leaving these dangerous explosives exposed and accessible to children and those of immature judgment with knowledge that they were so exposed constituted a substantial factor in bringing about plaintiff's injuries."

Stewart v. United States, 186 F.2d 627 (7th Cir. 1951), was an action to recover for damages to two minors against the United States under the provisions of the Tort Claims Act. The damages resulted from injuries sustained by boys from the explosion of a hand smoke grenade which had been a part of a stock of grenades maintained by the Army at Fort Sheridan, Illinois. Three high school boys entered the military reservation where there was a large sign posted on the roadway leading to the magazine area which read, "Danger Military Explosives. This Road Closed to Public Traffic." Another sign on the gate of the magazine enclosure read, "Keep out. No Smoking, No Matches, No Lighters Permitted in This Area." The three boys climbed the fence, obtained these grenades and one was left near the home of the injured boys. The Court held the government was liable and at page 633 said:

"Turning to the instant situation, could the government reasonably have foreseen or anticipated that boys might enter the Magazine Area and remove grenades? A negative answer to this question requires a disclaimer of all knowledge of the proclivities possessed by the ordinary boy for discovery, exploration and the satisfaction of a curiosity oftentimes easily aroused. What could be more alluring or fascinating to a boy or group of boys, whether of tender or more mature age, than a pile of boxes in plain sight, labeled `Fireworks'? Presented with a situation of such appealing nature they did what might reasonably be

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