United States v. White

• Decision Date: 18 February 1954
• Docket Number: No. 13226.,13226.
• Citation: 211 F.2d 79
• Parties: UNITED STATES v. WHITE.
• Court: U.S. Court of Appeals — Ninth Circuit

211 F.2d 79 (1954)

UNITED STATES v. WHITE.

No. 13226.

United States Court of Appeals Ninth Circuit.

February 18, 1954.

Lloyd H. Burke, U. S. Atty., Fred Woelflen, Asst. U. S. Atty., San Francisco, Cal., for appellant.

M. S. Huberman, Leonard J. Bloom, San Francisco, Cal., for appellee.

Before HEALY, ORR, and POPE, Circuit Judges.

HEALY, Circuit Judge.

This is a suit by appellee (hereafter White) under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671 et seq., to recover damages for personal injuries accidentally sustained on the Camp Beale Army base located near Marysville, California. On a trial to the court findings were made and judgment awarded in White's favor.

At and prior to the time of the accident (November 22, 1946) White was an employee of Mars Metal Company. Pursuant to invitation from the War Department, Mars had entered into a contract with the government for the purchase of non-ferrous scrap metal located on the Camp Beale firing ranges at a specified price. White sustained his injuries while collecting scrap metal as an employee of Mars pursuant to this contract.

The court found on the basis of sufficient evidence that prior to White's entry on the strafing range, where the accident occurred, the government knew there was a strong possibility that unexploded shells or duds existed on that range and that the presence thereof posed a condition of extreme danger to any person entering thereon. A month prior to the accident Captain Jones, the Post Range Officer in charge, had conducted a survey of the Camp Beale firing ranges, and on the basis of his survey had recommended that dedudding operations be undertaken.¹ This recommendation was rejected, apparently by higher authorities, because of the expense involved. The strafing range at the time of the accident was grass-covered and visual inspection alone could not detect the presence of hidden duds. Although electrical and other scientific detecting devices were known and available, for reasons of economy, as already said, they were not employed.

The government failed to warn White of the known danger he was likely to encounter, nor was he told of the findings made by Captain Jones' survey nor informed of the fact that recommended electrical or other detecting devices had not been used. Furthermore, so the court found, Sergeant Hodges, the person in charge of the strafing range under the Post Range Officer, told White prior to his entry that the strafing range was in a safe condition except for a certain marked dud — an unexploded 75mm. artillery shell — which he pointed out to White. He informed White that the range had not been used for some time and showed him a solid iron 37mm. nonexplosive anti-tank projectile, advising him that he was likely to find many such on the range. Hodges knew that Army personnel were assisting White, but gave him no warning other than to admonish him to instruct the personnel to stay away from the marked dud above referred to. White himself had no special training in firing range decontamination operations nor in detonation technique.

In preparing to perform the contract White engaged several off-duty enlisted men to aid in removing the scrap. On the day of the accident he and these helpers were engaged in collecting cartridges from the strafing range. One of the helpers, a Private Lang, in the course of the work picked up what appeared to be one of the iron 37mm. antitank projectiles which Sergeant Hodges had previously remarked to White were non-explosive and present in large numbers. Lang, who was close to White, asked the latter if this was the sort of item in which he was interested. White, being interested only in non-ferrous metal, replied in the negative, and almost simultaneously Lang pitched or handed the projectile to White who dropped the same, the object being in his hands but a fraction of a second. He had no time to grasp or inspect it. The projectile exploded upon hitting the ground, causing the injuries which are the basis of the suit, and also injuring Lang. The missile was apparently a 37 millimeter anti-personnel projectile with an explosive warhead, similar in appearance to the harmless 37mm. anti-tank projectile shown to White by Sergeant Hodges.

Concededly, White was at the time of the injury a business invitee on the premises of the government. Under the applicable (California) law the United States was obligated to provide him with a reasonably safe place to perform the contract, among the obligations being the duty to inspect the strafing range for latent or hidden dangers and to remove the same, or to warn White thereof. These duties were to be discharged with a degree of care commensurate with the danger involved. Freeman v. Nickerson, 77 Cal.App.2d 40, 174 P.2d 688; Hinds v. Wheadon, 19 Cal.2d 458, 121 P.2d 724; Rudd v. Byrnes, 156 Cal. 636, 640, 105 P. 957, 26 L.R.A.,N.S., 134. Not only was the United States found remiss in these particulars, but through its responsible agent it affirmatively represented to White that the strafing range was safe.

By way of avoidance of the consequence of its asserted negligence the government advances several arguments,...