Sumner v. US, 3:90-0204.

• Decision Date: 29 April 1992
• Docket Number: No. 3:90-0204.,3:90-0204.
• Parties: David SUMNER v. UNITED STATES of America.
• Court: U.S. District Court — Middle District of Tennessee

794 F. Supp. 1358

David SUMNER v. UNITED STATES of America.

No. 3:90-0204.

United States District Court, M.D. Tennessee, Nashville Division.

April 29, 1992.

COPYRIGHT MATERIAL OMITTED

Dale M. Quillen, Irene R. Haude, James F. Neal, Thomas H. Dundon, Neal & Harwell, Nashville, Tenn., for plaintiff.

Harold Benton McDonough, Office of the U.S. Atty., Nashville, Tenn., for defendant.

MEMORANDUM

JOHN T. NIXON, Chief Judge.

Having held a trial without a jury in the above styled action, the Court makes the following findings of fact and conclusions of law.

I. FACTS

On April 28, 1989, the eighteen year old plaintiff, David Sumner, his older brother, Michael, and their friend, William "Junior" Miles, Jr., travelled in Miles' car into an area known as the rear area of the Fort Campbell army base. The rear area comprises 105,000 acres of undeveloped land that the army uses for various purposes. The young men entered the base via a gravel road named Big Rock Road. A sign at the boundary of the base on Big Rock Road indicates that persons who enter the base consent to search by doing so and that solicitation and distribution of literature on the base without prior authorization is prohibited. Shortly after passing the sign, the three friends turned west onto a paved road called Jordan Springs Road and then, almost immediately, turned north onto another gravel road that led to a field in which a tank stood. After viewing the tank, the companions retraced their route to Jordan Springs Road and headed east. After several miles, they turned north onto an unmarked dirt road that the Army refers to as Parkertown Road. At the end of the dirt road, they crossed a dry creek bed and continued onto one of several pathways a short way before parking the car. On foot, they set out through a field in the direction of several rusted out military vehicles that had been used for target practice. On the way, they passed a small sign, about two feet by two feet, that stood approximately 98 feet from their course off to the right. The sign, which was not legible from the young men's position, read "DANGER" at the top and in smaller lettering below read "Unexploded Duds, Keep Out! Trespassing On Or Removal Of Any Item From Range Is Prohibited. By Order Of CG." Some of the red coloring around the word "DANGER" was faded.

David Sumner followed Michael Sumner and Junior Miles as they headed across the field toward the vehicles. As they walked through the field, the remains of fired ammunition were visible on the ground. Just as they neared the vehicles, there was a loud explosion. When Junior Miles and Michael Sumner turned around, they saw that David Sumner had been severely injured. They picked him up, carried him to the car, and drove him to a nearby house. There, they telephoned the Sheriff's office and emergency medical personnel.

Junior Miles accompanied David Sumner to the hospital and Michael Sumner went with Sheriff's Deputy John Vinson to the accident cite. On the way, Michael Sumner reportedly told Deputy Vinson that the accident occurred at around 3:30 p.m. in what the Army called the "rear impact area." According to Deputy Vinson, Michael also said that before the explosion occurred he heard David say "Look what I found." At the accident site, Deputy Vinson and representatives from the Explosive Ordnance Detachment and Military Police at Fort Campbell who met him there determined that dud ordnance from a light anti-tank weapon caused the explosion which injured David Sumner.

Several days later, Sergeant Paul Hicks, the officer in charge of the rear area military police at Fort Campbell, interviewed Junior Miles. Miles indicated that, at the time of the accident, he knew that he was in a prohibited area where the Army had target practice. Based on this information, the Army subsequently prosecuted Miles and Michael Sumner under 18 U.S.C. § 1382 for unlawfully entering a military reservation for purposes prohibited by law. The Army chose not to prosecute David Sumner because it mistakenly believed that David Sumner was a minor at the time of the accident and the Army's policy was not to prosecute juveniles. Miles entered a plea of guilty to the charge. After holding trial, a United States Magistrate found Michael Sumner guilty as charged.

The accident site was in fact the south impact area at Fort Campbell, one of several impact areas in the rear area at Fort Campbell. Impact areas are parcels of land dedicated to target practice by the military. According to Army regulations, they are primary areas of danger, while areas around them, called ricochet areas, are secondary areas of danger. Since highly dangerous unexploded duds are present in impact areas, the Army generally does not permit its personnel to walk on impact areas. Dud ordnance from light anti-tank weapons is extremely volatile and may be detonated with minimum contact. Pursuant to Army Regulation 385-63 ¶ 2-8(f), the Army is responsible for demarcating an impact area as follows:

Besides the warning signals and signs used to prevent entry into the range during firing, the boundaries of all range areas adjacent to roadways and points of entry or along the outside limits of ricochet areas, sic will be posted with permanent signs. They will be placed at 200 meter intervals or less, or in a way that will insure that a person cannot enter the range without seeing at least one sign within a legible distance. The signs will emphasize the danger connected with the range area and the handling of unexploded ammunition. They will prohibit trespassing or the removal of items under penalties provided by law. Design, color, and size will conform to guidance in AR 385-30.

Army Reg. 385-63 ¶ 2-8(f) (emphasis added). Such warning signs would be the only way a civilian would know that he or she was entering an impact or ricochet area. In an effort to comply with these regulations, the Army erected aluminum signs at 200 meter intervals along the borders of the impact areas at Fort Campbell. This effort, however, did not comply with the Army regulations because it did not satisfy the requirement that "the boundaries of all range areas ... along the outside limits of ricochet areas, sic will be posted with permanent signs." Id. Other problems also arose in connection with the Army's efforts to comply with these regulations.

The aluminum signs were often stolen, apparently for their aluminum content. At trial, the Director of the Range Division at Fort Campbell, Paul Eaves, testified that as many as seventy-five warning signs were missing or not visible around impact areas at Fort Campbell at one time.¹ This detracted from the signs' "permanent" nature. At the time of the accident, for instance, the sign on the south impact area boundary that normally would have been located 200 meters to the left of the sign which David Sumner and his companions came nearest was missing. The sign that David Sumner and his companions came nearest itself was inside the boundary of the impact area, in violation of the regulations, instead of on the boundary of the impact area or the ricochet area. At the time of the accident, because the red coloring that outlined the white lettering of the word "DANGER" was faded, the word "DANGER" on the sign was almost illegible at any distance.² The signs used at Fort Campbell were two feet by two feet and had twenty-one words on them. Thus, even when not faded, the signs were not legible from one-hundred feet, no less from one-hundred meters as required by the regulations.³

In addition, another regulation compliance problem existed. Army Regulation 385-63 ¶ 2-10 provides:

c. The local news media will be used periodically to warn the nearby communities of the hazards in trespassing on range areas and in handling unexploded ammunition.

d. A program will be established to educate school children, both on and off the installation, on range hazards.

Army Reg. 385-63 ¶ 2-10 (emphasis added). The Fort Campbell Safety Manager responsible for compliance with these regulations was Cathy Pierce. Despite the regulation's clear language to the contrary, Cathy Pierce testified at trial that she considered her role to be limited to educating on-post military personnel. She stated that she lacked the expertise to educate others regarding the dangers of impact areas and unexploded duds. The Army at Fort Campbell neither used the local news media to educate the public about the hazards of unexploded duds in impact areas, nor did it establish a program to educate school children in the surrounding areas about such hazards.

Fort Campbell consists of two general areas, the cantonment area, where office and living quarters are located, and the rear area. The rear area has public roads that cross through it and is open to the general public for recreational purposes including biking, hunting, fishing, and hiking. Under applicable Army regulations, an individual who wishes to use the rear area for recreational purposes first must apply for a permit. The Rear Area Military Police Office issues such permits. Notably, however, the Army has given no notice to the public of the necessity of or the procedure for obtaining such permits. Similarly, other Army regulations that are unavailable to the public ostensibly prohibit civilians from travelling upon unpaved, ungravelled, dirt roads in the rear area like Parkertown Road. No signs exist at the various points of entry, however, to notify the public that use of and travel across the undeveloped land is restricted. The signs that do exist at the points of entry, such as the one that David Sumner and his friends passed on the day of the accident, omit the fact that use of and travel across the land is restricted.

Despite the Army regulations limiting access to the rear area, the Army was aware of the public's use of the area for recreation without permission. Sergeant Paul Hicks testified that the Army knew that members of the public...