Parrott v. United States

• Decision Date: 26 February 1960
• Docket Number: Civ. No. 902-57.
• Citation: 181 F. Supp. 425
• Court: U.S. District Court — Southern District of California
• Parties: Alvy PARROTT, a minor, by Joe Parrott, his guardian ad litem; Joe Parrott; Walter Dwight Anthony, a minor, by Jimmie Faye Anthony, his guardian ad litem; Carlos Pat Anthony, a minor, by Jimmie Faye Anthony, his guardian ad litem; and Jimmie Faye Anthony, Plaintiffs, v. UNITED STATES of America, Defendant.

181 F. Supp. 425

Alvy PARROTT, a minor, by Joe Parrott, his guardian ad litem; Joe Parrott; Walter Dwight Anthony, a minor, by Jimmie Faye Anthony, his guardian ad litem; Carlos Pat Anthony, a minor, by Jimmie Faye Anthony, his guardian ad litem; and Jimmie Faye Anthony, Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. No. 902-57.

United States District Court S. D. California, Central Division.

February 26, 1960.

King & Mussell, by Arthur Olson, San Bernardino, Cal., for plaintiffs.

Laughlin E. Waters, U. S. Atty. for Southern District of California, by Richard A. Lavine, Asst. U. S. Atty., Chief, Civil Division, and Clarke A. Knicely, Asst. U. S. Atty., Los Angeles, Cal., for defendant.

TOLIN, District Judge.

This action to recover damages under the Tort Claims Act¹ produced evidence of near-gross negligence on the part of Government personnel. Unless the application of some special defensive rule arises to defeat recovery, the plaintiffs should prevail. It is urged by the Government that two such rules completely negative the plaintiffs' case. The first of these is that "* * * A vendor of land is not subject to liability for bodily harm caused to his vendee or others while upon the land after the vendee has taken possession by any dangerous condition, whether natural or artificial, which existed at the time that the vendee took possession."² The second special rule claimed by the Government to defeat recovery is that the plaintiffs were trespassers and that, despite their considerable youth at the time of the event (8, 9 and 10 years of age), the attractive nuisance doctrine does not apply under the facts of this case.

The evidence has established that during World War II the United States Army, as a lessee, occupied certain land in Riverside County, using it as a small arms practice range. The property was released to its private owners in 1947 and the Government has been out of possession since that time. The accident occurred February 12, 1957. Neither the owner nor his successors have been sued. Except during its use by the military, the larger part of the leasehold, consisting of an unfenced peneplain,³ has been used principally for potato farming. The physical characteristics of the land are in evidence largely through a view had during the trial. Rising rather abruptly from the peneplain is a hill-like formation — largely a residue of boulders from which much of the soil has been eroded by rains.⁴ This part of the terrain itself is somewhat unusual and apt to invite entry by a young boy.

The only practical purpose for the hill which has been suggested by the evidence is the military one to which it was at one time put by the Government. The almost plain-like land which surrounds it is, however, splendidly adapted to raising field crops, and the area abounds with potato fields, one of which extends to the very base of the monadnock. Most of the fields in the area, including the one formerly a Government leasehold, are unfenced.⁵ During the Army's use of the land, military personnel were trained upon it in the use of rifle grenades by actually firing them at targets within the area. The only evidence that the property was cleared of unexploded grenades before being returned to civilian occupancy is a certificate⁶ to the effect that the area has been de-dudded. Ten years elapsed without untoward results following the time when the Government's military personnel made what the court now finds was an exceedingly negligent and cursory search of the portion of the land here involved prior to issuing their certificate. The certificate relates to the entire property. The actual search probably was only conducted on the peneplain. The court's finding of an exceedingly negligent search relates to that made upon the monadnock.

It is apparent from the entire context of the evidence and particularly emphasized by the physical characteristics of the property and a history lacking in explosions of live grenades during the intervening ten years, that the de-dudding party did well in removing unexploded grenades from the almost plainlike area which surrounds what appears to be a monadnock. It is equally apparent, however, that the attention given by the de-dudding party to the land readily adaptable to potato farming was not given to the monadnock, which has little potential for utility.

On the afternoon of February 12, 1957, the three minor plaintiffs were confronted with the recognition by their school of Lincoln's birthday. They had a free afternoon in one of the most fruitful Indian relic areas of California. The property in question is in Riverside County where two years previously an official study⁷ disclosed that there were still many Indians and eleven active Indian reservations. Of the counties of California, only neighboring San Diego had more Indian reservations at that time. Plaintiffs' presence not being required in school that afternoon, the boys went forth with the avowed purpose of seeking Indian relics. A primitive area like the monadnock in the potato field was a likely place to find such things as arrowheads. What they found, however, was a small rifle grenade not far up the incline and rather conspicuously at rest between rocks. (During the view which was had, the plaintiff who found the grenade indicated the exact spot at which he had located it.) 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-dud 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."⁸ The same afternoon that the boys were injured, Air Force personnel came a distance of some miles to the area in which the boys found the grenade, and the same day located at least three more which had every appearance of containing a similar explosive. An exhibit in the case⁹ is a picture of the finder holding five grenades which were found during that afternoon. It was uncertain in the testimony whether all five were still in condition to be exploded. Three were live grenades and two were in uncertain status, probably impotent. However, the rule of Warner v. Santa Catalina Island Co.,¹⁰ supra, would require removal of the two although probably impotent when they were found on this site. Similarly, even were the remaining three found to be actually harmless, they had the outward appearance of being live grenades, and in the opinion of experts were live. Any prudent searcher of the area coming upon them would have removed them. The court must conclude that the searchers just did not climb to the elevated area.

The rule above quoted, and upon which defendant relies, has been taken by the court from the Restatement although it is so well recognized that a search of the case law of any one of the States could be expected to develop a long list of cases in which it has been applied. Within its language it is not strictly applicable to this case because it has reference to the liability of the vendor of the land (here the defendant was a lessee of the property at the time the dangerous object was placed there and at the time the de-dudding operation was negligently carried out.) This, however, cannot be of substantial concern. It is a criticism of the wording of the rule rather than the statement of a valid limitation of the rule itself. It appears that the general rule of non-liability is intended to cover those situations where the party sought to be held responsible was at one time responsible for the condition but at the time of injury was no longer connected with the land.¹¹ The omission of this precise situation by the drafters of the rule is probably explained by the fact that it is a rare plaintiff who will sue the lessee when he also has a cause of action against the lessor. The objection to applying the rule here is much more fundamental. The rationale of non-liability has generally been applied to cases in which there was either a defect in the realty or in some fixture on the premises — conditions for which the owner of the property is responsible. For instance, Stone v. Heyman Bros.¹² was a case in which plaintiff fell through a skylight in a building which she had purchased from defendant. The skylight did not comply with a local ordinance requiring either re-enforcement of skylights or a protective barrier around them. Recovery was denied on the ground that it is the owner of a building who is responsible for defects in its condition and when one purchases property thus defective it is the purchaser's obligation to correct the situation. The Stone case, which established the rule in California, relied exclusively upon cases involving defective conditions of either the land itself or of fixtures.¹³ This indicates that the California court did not have a situation like the present one in mind when it adopted the rule of non-liability.¹⁴

California also applied section 352 of the Restatement in Copfer v. Golden.¹⁵ That case concerned four defendants, three of whom had deeded their joint interests in the real property to the fourth several months prior to the injury. The fourth defendant had been conducting a junk business on the land, and a child was injured in a fall from a trailer which was held to constitute an attractive nuisance. A judgment for the plaintiff was reversed as to the three vendors, it appearing that they had no interest in the junk business and had never used or owned any of the items on the land....