Taylor v. United States

• Citation: 213 F. Supp. 545
• Decision Date: 24 January 1963
• Docket Number: Civ. A. No. 2489.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Henry James TAYLOR, an infant, who sues by and through his mother and next friend, Gertrude Marie Taylor, Plaintiff, v. UNITED STATES of America, Defendant.

213 F. Supp. 545

Henry James TAYLOR, an infant, who sues by and through his mother and next friend, Gertrude Marie Taylor, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. No. 2489.

United States District Court E. D. Virginia, Alexandria Division.

January 24, 1963.

Elmer B. Gower, Cumberland, Md., for plaintiff.

MacDougal Rice, Asst. U. S. Atty., Alexandria, Va., for defendant.

LEWIS, District Judge.

Henry James Taylor, an infant, through his mother and next friend, seeks damages from the United States for severe personal injuries sustained as a result of his coming in contact with an allegedly unprotected high-voltage transformer near his home at Fort Belvoir, Virginia.

Suit was brought in this court under Chapter 171, Title 28, United States Code, pursuant to an act of the Congress of the United States, approved September 21, 1961, for the relief of Henry James Taylor.¹

The evidence disclosed that Henry, an infant of seven and one-half years at the time of the accident, was living with his mother at Fort Belvoir, Virginia. His father, Sergeant Major John D. Taylor, was then on duty in Camp Tugo, Greenland. The Taylor home (one of a group assigned to non-commissioned officers) was located adjacent to a wooded area.

In late 1955 or early 1956, the Government contracted with the Walter Truland Corp. to build a transformer station at Fort Belvoir, Virginia, as an adjunct of the DeWitt General Hospital. The station was erected in accordance with plans and specifications, and was turned over to the appropriate officials of Fort Belvoir, April 20, 1956. It was maintained and operated thereafter as a part of the Fort Belvoir physical plant.

The transformer is located on a hill immediately behind (from 150 to 300 feet) DeWitt General Hospital, then being built at Fort Belvoir, Virginia. The site, after being cleared and leveled by flattening out the back of the hill, consisted of natural bank gravel. Upon completion, "the enclosed area" was covered with washed gravel ranging from one to three inches in size. The framework supporting the electrical equipment, including the adjacent shed or building, was installed and erected on a pad, all of which was enclosed by an industrial-type fence. This fence was constructed of steel pipe posts set in concrete at regular intervals and a framework of pipe connecting these posts near their tops, with horizontal bracing pipes about two-thirds the height of the fence at the corners and adjacent to the gate, and covered from the outside with a seven-foot woven wire mesh of a two-inch by two-inch diamond-shaped design. Three spaced strands of barbed wire were stretched on projections of wire above the steel pipe posts. These projections extended outwardly at approximately a forty-five degree angle and upwardly approximately one foot, except that at the gateposts the projections extended vertically above the posts. The total height of the mesh fence with the three strands of barbed wire was approximately eight feet. The fence appeared to be a substantial distance (12 to 20 feet) from the high-voltage equipment. The entrance to the transformer station was through double gates made of the same material and height as the fence. These gates were kept locked at all times.²

Henry had been to the "site" on at least two previous occasions. He said he went there because he was curious. He either walked or rode his bike. He had been down there with his parents, both of whom had told him to stay away from the area.

The first time, Henry got inside by climbing over the fence. On the date of the accident, he got in by crawling through a hole he found under the fence. To get under safely, he had to remove some "rocks."

Henry did not state how large the hole was, except to say that he could crawl under the fence after removing some of the rocks. Edward George Schessler, the workman who rescued Henry, observed the hole immediately after the accident. He stated "I don't recall actually just how big it was," "I probably could have crawled underneath it myself." E. R. Leister, Sr., another employee who arrived on the scene shortly after Schessler did, when asked "Was there anything unusual about that fence?" he replied, "Only this one low spot there where it had settled in some way, due to rain or something else. There was a little hole under the fence." When asked "How big or how deep was that hole?" he said, "* * * I didn't measure it, but it wasn't big enough, I don't think, for a grown person to crawl under, but it was large enough for a child to crawl under." Henry's father, Sergeant Major Taylor, expressed the opinion that the hole was the result of erosion.

Roy Ethridge, a playmate of Henry, said he had gotten into the transformer site on a previous occasion by crawling through a hole under the fence.

There was no evidence as to how long this hole had been under the fence or that the Government had any knowledge of its existence, or how much of it was created by the boys in "removing rocks" during the two or three occasions they used the hole as a means of entrance.

After gaining entrance to the station, Henry climbed up among the breakers. His burnt clothing was found on top (20 feet) of one of them. He was injured when he got into the high-tension line at the transformer banks, and was removed from these breakers in a badly burned condition from the hips up, requiring extensive plastic surgery in an endeavor to remove the marked amount of contractures in the region of the scapulae and neck. He has been hospitalized approximately 200 days, and will require about 14 additional operations during the next 8 or 10 years in order to be cured (as completely as possible) of the injuries sustained.

The plaintiff seeks recovery from the United States on the ground of negligence. He says the cause of the accident was the failure of the Government to provide a proper barrier around the DeWitt Hospital transformer.

To support a recovery the plaintiff must prove actionable negligence against the Government. This he has not done.

A distributor of electricity must exercise a high degree of care commensurate with the danger involved, to prevent injury to others. See Trimyer v. Norfolk Tallow Company, 192 Va. 776, 66 S.E.2d 441, and cases cited therein.

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