Bomb Bit That Hit House May Leave Feds Liable

     (CN) – The government cannot dismiss claims over a bomb fragment that crashed through the roof of a home, landed on a bed and caused the blanket to smolder, a federal judge ruled.
     Fredrick and Cheryl Angle live with two of their children, Brandon Gadow and Cassandra Gadow, about half a mile away from the Picatinny Arsenal, the headquarters of the U.S. Army Armament Research Development and Engineering Center (ARDEC), in Jefferson Township, N.J.
     While Cheryl and Brandon were downstairs in the kitchen at about 2 p.m. on April 11, 2008, they felt a strong explosion on the second floor that allegedly shook the entire house.
     An ARDEC investigation later revealed that an M107 11-mm artillery projectile fragment from the Gorge Test Area had crashed through the Angles’ roof, pierced Cassandra’s bedroom ceiling and landed on her bed, causing a blanket to smolder. The ARDEC report also noted that there were four other incidents where fragments exceeded the test area at military facilities.
     The family sued the government under the Federal Tort Claims Act in April 2012, asserting negligence, emotional distress and nuisance claims.
     They claimed that, on the day of the incident, the arsenal’s commanding officer, Brig. Gen. William Phillips, told them “this is our fault, we are taking this on the chin, and whatever it takes to make this right we will do.”
     Phillips allegedly returned days later, gave Cassandra military coins, invited Frederick and Cheryl to his home for a “spaghetti dinner,” had pre-embargo Cuban cigars and scotch with Frederick, and invited the family to the Pentagon.
     The family alleged that many scientists, weaponry engineers, and munitions experts and technicians, referred to in court documents as John Does 1-20, “had ample prior notice that their explosives testing posed a risk to others acted recklessly and hurt a family,” based on a bomb fragment that fell on the nearby Lake Denmark picnic area in 2006.
     Phillips “showered [the Angle family] with gifts in order to manipulate their emotions, deflect responsibility for John Does’ 1-20 reckless actions, and shield the U.S. Army from liability,” the complaint states.
     U.S. District Judge Jose Linares previously dismissed some claims, holding that the nuisance claim fell within the discretionary function exception to the Federal Tort Claims Act, which “immunizes from second-guessing ‘legislative and administrative decisions grounded in social, economic, and political policy,'” according to the 3rd Circuit’s 1997 decision, Gotha v. United States.
     The government moved to dismiss the second amended complaint on March 20, but the Newark court denied the motion and ordered discovery regarding jurisdiction.
     “Having reviewed the record before it, the court finds that in order to determine whether the discretionary function exception applies in this case, additional information as to the jurisdictional facts is necessary,” Linares wrote on June 18. “For example, based on the record before the court, it is unclear which provisions of the extensive regulations cited by the government, if any, govern the type of testing at issue here; how the testing at issue was conducted generally; whether that testing was done in conformity with the applicable regulations, if any; or whether the incident in question arose as a result of a deviation from any applicable regulations. Accordingly, the court will order discovery on the jurisdictional issue so it can properly determine whether the act giving rise to the alleged injury involved an ‘element of judgment or choice,’ and whether the challenged action or inaction is ‘of the kind that the discretionary function exception is designed to shield.'”
     The government may reassert its motion to dismiss at the end of discovery, the judgment states.

%d bloggers like this: