Williams v. United States

• Decision Date: 29 June 1967
• Docket Number: No. 23228.,23228.
• Parties: Allen WILLIAMS b/n/f Louise J. Smyre, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

379 F.2d 719 (1967)

Allen WILLIAMS b/n/f Louise J. Smyre, Appellant, v. UNITED STATES of America, Appellee.

No. 23228.

United States Court of Appeals Fifth Circuit.

June 29, 1967.

Vincent P. McCauley, Columbus, Ga., for appellant.

Sampson M. Culpepper, Asst. U. S. Atty., Floyd M. Buford, U. S. Atty., for appellee.

Before TUTTLE, Chief Judge, and BROWN and GODBOLD, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

We deal once again with this case. As before, it comes to us after a denial of any recovery against the Government in an FTCA suit to recover for serious injuries sustained by a young 13-year-old boy when a highly dangerous piece of army ordnance exploded in his hands. Last time we reversed the finding of no negligence on the part of the Government but remanded the case for determination of the question of contributory-comparative negligence since there had been no need for, and no decision on, this question by the trial Court in its first disposition. Williams v. United States, 5 Cir., 1965, 352 F.2d 477.

As our prior opinion discusses the facts in great detail, they need be summarized only briefly here to put our problem in perspective.

The accident occurred at the home of Allen Williams (the injured boy) a few miles from Fort Benning, Georgia. In the course of training operations, various types of ordnance are issued to platoon or section leaders for distribution to the men for use by them in military exercises. Among the items so issued were explosive devices described as "M-80s" which are similar in appearance to large "firecrackers." These are small, red, paper cylinders filled with powder and a fuse with the marking "M-80 Firecracker" on the cylinder. Their function is that of a "simulator" for the sound of hand and rifle grenades, mortar shells, land mines, and other exploding weapons to give realism to combat field exercises. Although it looks much like an ordinary firecracker, the M-80 is more powerful and is designed to explode three to seven seconds after the fuse is lit.

Following one of these training exercises, Sergeant Smith, a section leader in Company B, inadvertently carried a few of the M-80s to his home, situated only a few miles from Fort Benning. Under the existing established policy of Fort Benning, Sergeant Smith, on discovering the simulators on his person, should have returned them immediately to the Base. This he did not do. Rather, he did what he thought was the second-best thing. He put the M-80s away in what he considered to be a safe place with the intention of returning them the next day. Unfortunately for Allen Williams, this, as is often the case when a lesser desirable course is chosen, was not sufficient. For safekeeping, Sergeant Smith put the M-80s in a cigar box and deposited the box in a dresser drawer. Sergeant Smith forgot about them and never returned them to the Base. They remained in the box unnoticed until Allen Williams happened on to them that fateful day and was handed one by Mrs. Smith.

Allen, then a young 13-year-old boy, had been asked to baby-sit for Mrs. Smith. He agreed and went to her home to secure some diapers. As Mrs. Smith was taking the diapers from out of the chest of drawers, Allen noticed the cigar box and asked Mrs. Smith what was in it. She opened it and handed him one of the M-80s. They then returned with the young baby to Allen's home where he was to do his baby-sitting. Later that afternoon Allen lit the fuse. It detonated the M-80 causing severe injuries to both of his hands.

On the trial of the FTCA suit, the District Court, sitting of course without a jury as that Act requires, denied recovery. We reversed, 352 F.2d 477, finding the Government vicariously liable for the actions of Sergeant Smith in line of duty in taking the M-80s to his home, failing to return them to the Base upon discovery, and leaving them in a drawer. We expressly held that considering the nature of this highly explosive device, Sergeant Smith breached the Georgia duty of care required in the handling of a "dangerous instrumentality" since "Smith knew the simulators were dangerous." We likewise rejected out of hand the trial Court's denial of liability on the alternative ground that the injury was due to the intervening act of Mrs. Smith in giving the M-80 to Allen. In view of our earlier holding of the imputable negligence of Sergeant Smith, we declared that the action of Mrs. Smith, whether deemed to be negligence or not, was immaterial since "it was foreseeable in law that Mrs. Smith would fail to recognize the simulators' dangerous potential". 352 F.2d 477, 481. These holdings, we recognized, would call for allowance of damages. But since the issue of contributory-comparative negligence had been unessential to the trial Court's disposition, this led us to further hold that in "* * * the circumstances, we have concluded to remand the case to the district court, the trier of fact, for a finding on the issue of contributory negligence. * * *." 352 F.2d 477, 482.

On remand, the trial Court found that Allen "* * * did not exercise the degree of care imposed upon him by Georgia law and * * * was, therefore, negligent * * * and * * his negligence contributed to his injury and * * * was equal to any negligence attributable to the Government * * *." Consequently, the Court concluded, "No recovery is authorized under the Georgia rule of comparative negligence." In the order-opinion, the Judge elaborated somewhat upon the factors leading to that conclusion.¹

On this appeal from the adverse judgment, Allen attacks this contributory negligence holding on two grounds: (1) The issue is not properly in the case and (2) the finding is clearly erroneous. We regard the first as inconsequential because, no matter how little stressed prior to our first remand, the issue of contributory-comparative negligence was raised by the pleadings and evidence, Wells v. Steinek, 1934, 49 Ga.App. 482, 176 S.E. 42; Bently v. Ayers, 1960, 102 Ga.App. 733, 117 S.E.2d 633. And our remand recognized as much. As to the second, the Government, in a somewhat like manner, urging that the question whether a child under fourteen is capable of negligence "except in plain and unmistakable cases is a question for determination by the jury", Rogers v. McKinley, 1954, 48 Ga.App. 262, 172 S.E. 662, 665, so it is for the fact finder, ordinarily a jury, alone to decide the issue of comparative negligence,² this Court cannot disrupt the findings of the trial Court. On this, affirmance would be called for without more. But this does not foreclose inquiry or the travail of decision, for even though the findings come here with the buckler and shield of F.R.Civ.P. 52(a),³ we must determine whether they pass muster under the clearly erroneous concept.⁴ We find they do not.

We start, as we must, with the Georgia standard of conduct demanded of a plaintiff, both generally⁵ and that of a young child.⁶ The first is the source of the Georgia contributory-comparative negligence concept under which a negligent plaintiff may recover unless his negligence is equal to (or greater than) that of the defendant, although damages will be reduced in proportion to the amount of negligence attributable to the plaintiff.⁷

The decisive factor as we analyze the case is not the general mental alertness of this young boy, his capacity to perform chores, to serve as a diaper-changing⁸ babysitter for compensation, his general knowledge or, for that matter, his general awareness that there were such things as firecrackers (see note 1, supra). Rather, it is whether this record supports in any degree the implied conclusion that Allen either knew or could be charged as a matter of law with knowledge of the extraordinary dangers of this piece of military high explosive.

We start from the proposition that the Georgia Code (see note 6, supra) speaks in terms of the particular youthful plaintiff in the particularized circumstances of the occasion giving rise to the claim. Ragan v. Goddard, 1931, 43 Ga.App. 599, 159 S.E. 743; Braswell v. Smith, 1921, 27 Ga.App. 430, 110 S.E. 415. The child, unlike his adult counterpart, does not undergo the metamorphosis into the fictionalized character of the ordinary prudent youth. The Georgia cases, bearing this out, emphasize that for a child to be negligent, he must be shown to have an appreciation of the risk involved. For this a general showing that the child was aware of the factual situation is not sufficient. It must be shown that the child was aware of and appreciated the danger of the situation.⁹ Thus, in Laseter v. Clark, 1936, 54 Ga.App. 669, 189 S.E. 265, the Court emphasized that the lack of driving experience of a 16-year-old boy tended to show that he would not appreciate the risk involved in an otherwise admittedly dangerous situation. In Beck v. Wade, 1959, 100 Ga.App. 79, 110 S.E. 2d 43, the Court specifically pointed out that "there is a difference between mere knowledge of a defect and a full appreciation of the risk involved." Closer home is Allen v. Gornto, 1959, 100 Ga. App. 744, 112 S.E.2d 368, where, against the attack that the petition on its face showed that the plaintiff was guilty of contributory negligence, the Court emphasized the requirement that there be an awareness of potential hazards, not just mere knowledge of the operation being undertaken. Recognizing that the "* * * act of the plaintiff in exploding the powder when contained in a glass bottle might be very rash," the Court readily found factors making such conduct excusable. These included the fact that the plaintiff "* * * was an immature youth fifteen years of age, was inexperienced in the use and handling of fireworks * * * and other explosives * * * and did not understand and know the suddenness with which such fireworks might explode * * *." Further, it went on, the "use of the bottle as a container for the powder might not have been perilous had the fuse...