TINDALL BY TINDALL v. US, Civ. A. No. GC 87-5-D-O.

• Decision Date: 17 July 1989
• Docket Number: Civ. A. No. GC 87-5-D-O.
• Citation: 717 F. Supp. 446
• Parties: Jim W. TINDALL, Jr., a Minor by His Father and Next Friend, Jim W. TINDALL, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Northern District of Mississippi

717 F. Supp. 446

Jim W. TINDALL, Jr., a Minor by His Father and Next Friend, Jim W. TINDALL, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. No. GC 87-5-D-O.

United States District Court, N.D. Mississippi, Greenville Division.

July 17, 1989.

W.S. Stuckey, Jr. and Arnold F. Gwin, Greenwood, Miss., for plaintiff.

Daniel R. Unumb and Veronica P. Longstreth, U.S. Dept. of Justice, Washington, D.C., for defendant.

MEMORANDUM OPINION

DAVIDSON, District Judge.

This action, claiming damages resulting from the detonation of an explosive device, comes before the court on the defendant's motion to dismiss or for summary judgment. Defendant questions this court's jurisdiction to hear the instant action, Federal Rule of Civil Procedure 12(b)(1); the claim is brought pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671 et seq., and defendant's claim fails to come within the FTCA's limited exception to sovereign immunity. Defendant also moves for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) or alternatively for summary judgment pursuant to Federal Rule of Civil Procedure 56. Plaintiff concedes the following: (1) the FTCA applies only to negligence actions, and does not waive immunity from actions for strict liability and tort; (2) a federal statute or regulation cannot furnish a cause of action under the FTCA, but that the duty owed by the federal agency must be one which it shares with "private citizens" and must be imposed by applicable state law; and (3) the law of the State of Mississippi governs this action.

On the question of subject matter jurisdiction, the only issue before the court is whether a private person — acting as has the Bureau of Alcohol, Tobacco and Firearms in the situation at issue herein — "would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b). More narrowly, defendant argues solely that Mississippi law imposes no duty on the Bureau of Alcohol, Tobacco and Firearms, with regards to the device at issue, toward the plaintiff. "The existence of a legal duty is a question of law, but the breach of that duty — negligence — is a question of fact." Garza v. United States, 809 F.2d 1170 (5th Cir.1987) (citations omitted). If, indeed, defendant owed no duty to the plaintiff herein, plaintiff's claim of negligence would fail, and this court would be constrained to dismiss the instant action for failure of subject matter jurisdiction, as the claim would then be outside the scope of the FTCA's exception to sovereign immunity.

The United States Bureau of Alcohol, Tobacco and Firearms (ATF) confiscated a quantity of "M-80" and "M-100" explosives. ATF transferred a portion of these explosives to the Stuttgart, Arkansas office of the United States Fish and Wildlife Service. That office delivered 1500 M-100's to the Mississippi Game and Fish Commission, which apparently distributed the explosives among the area managers and game wardens. Mr. Kerr, an area manager in the employ in the State of Mississippi Department of Wildlife Conservation, received a small number of M-80's from his supervisor and stored them in a metal shed behind his home. During the month of July 1984, Mr. Kerr's nephew, Bill Gardner, Jr., visited his uncle and took several of the devices from his uncle's shed without his uncle's knowledge or permission. Bill gave one of the M-80's to his younger brother, Michael. Some time in early August 1984, Michael gave the M-80 to his friend, Jim Tindall, Jr., the plaintiff herein, who was 14 years old at the time. Jim kept the firework at his home. On the evening of August 16, 1984, Jim began to play with the device. He was showing the device to another friend, Michelle Atkinson, and was pretending to light it with a Bic cigarette lighter. The plaintiff unintentionally lit the fuse, unsuccessfully tried to snuff it out with his fingers, and then ran through the house in an effort to throw the device outside. The M-80 exploded in his hands before he got outside.

It is notable that the explosive device was in the possession of an official of the State of Mississippi when it was taken by a member of the general public; no duty on the part of a federal agency to properly store or handle the explosives is at issue in the instant cause, nor the other duties placed on one in possession of such material. See Shemper v. Cleveland, 51 So.2d 770 (Miss.), amended 212 Miss. 113, 54 So.2d 215 (1951) (duty to handle and manage explosives non-negligently); Hercules Powder Co. v. Williamson, 145 Miss. 172, 110 So. 244 (1926); McTighe v. Johnson, 114 Miss. 862, 75 So. 600 (1917). Any claims under this theory, therefore, fall outside the exceptions of the FTCA and are thus barred by sovereign immunity.

Plaintiff's complaint further alleges that the Bureau of Alcohol, Tobacco and Firearms negligently distributed the explosives; ATF distributed the explosives to the United States Fish...