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CONLON v. UNITED STATES

March 26, 1997

DENISE CONLON, administrator ad prosequendum of the estate of JAMES CONLON, and DENISE CONLON, individually, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant. DIMITRIOS ZAZARAS, Plaintiff, v. UNITED STATES OF AMERICA and BEACON SCRAP IRON AND METAL CO., Defendants.



The opinion of the court was delivered by: PARELL

 PARELL, District Judge

 These matters are before the Court on the United States' motion for summary judgment and, alternatively, to dismiss plaintiffs' complaints for lack of subject matter jurisdiction. Also before the Court is Beacon Scrap Iron and Metal Company's ("Beacon") motion for summary judgment in case number 95-1564. The cases were ordered consolidated by Magistrate Judge Hughes only for the purpose of deciding the dispositive motions. For the reasons stated, the United States' motion for summary judgment is granted and Zazaras' claim is dismissed pursuant to 28 U.S.C. § 1367(c)(3).

 INTRODUCTION

 The issue presented is whether the United States can be held liable for damages from what appears to be an explosion of military ordnance. The Court holds that because plaintiffs have failed to provide any evidence that the explosive device came from any federal military installation, the United States is entitled to summary judgment. The Court also finds that plaintiffs' claims are barred under the Discretionary Function Exception, 28 U.S.C. § 2680(a).

 BACKGROUND

 At approximately 1:15 P.M. on November 8, 1992, there was an explosion on the premises of Beacon, a privately owned scrap metal business located at 215 Throckmorton Street, Freehold, New Jersey. James Conlon, an employee of Beacon, was operating a crane in Beacon's yard at the time and was killed by the blast. Denise Conlon, administrator ad prosequendum of James Conlon's estate, brought a wrongful death action against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. ("FTCA"). Her Complaint alleges that

 
employees of the Department of the Navy, the Department of the Army or the Department of the Air Force, agencies of the United States of America, acting within the scope of their office or employment, failed to properly safeguard, maintain, supervise or control hazardous military munitions.

 (Conlon Compl. P 5.)

 Dimitrios Zazaras lived in Beacon's neighborhood at the time of the explosion and alleges that he has sustained a hearing loss and other injuries as a result. Zazaras has brought an action against the United States under the FTCA, and has also named Beacon as a defendant. Zazaras alleges that: (1) Beacon negligently purchased and/or received explosives from the United States; and (2) the United States "negligently sold to, transferred to, delivered to and/or disposed of explosives," and/or "failed to inspect materials" allegedly delivered to Beacon, and/or failed to warn or provide proper instructions to Beacon's employees. (Zazaras Compl. PP 2, 3.)

 Beacon is in the business of buying scrap metal from trash haulers and others, and its scrap yard is open to the public. (Decl. of Irene Dowdy, Exs. US-1 at 2, Zazaras 1 at 14.) The explosion of November 12, 1992 was investigated by the Borough of Freehold Police Department and the Monmouth County Prosecutor's Office, with the assistance of the New Jersey State Police Bomb Squad (the "Bomb Squad"). The Bomb Squad collected debris from the site, and forwarded it to the FBI Laboratory (located in Washington, D.C.) for analysis. (Id., Exs. US-2, US-3 at 7-19.)

 The blast debris were examined by FBI Supervisory Special Agent Heckman, who was asked to determine whether the explosion could have been caused by a piece of military ordnance. (Id., Exs. US-2, US-4, US-5 at 25.) In his written report to the local law enforcement authorities, Heckman stated that "the explosion was caused by a very brisant *fn1" high explosive consistent with those used by the military." (Id., Ex. US-4 at 3.) At deposition, Heckman explained that because of the physical appearance of the debris (fragments displaying thinned, sharp edges indicating rapid stretching of the metal), he concluded that this had been a rapid chemical explosion, indicative of high explosive. (Id., Ex. US-5 at 36-37.) When questioned about his use of the phrase "consistent with those used by the military" in his written report, Heckman testified that he used that phrase because it answered the specific question he was asked to resolve, i.e., could this explosion have been caused by military ordnance. (Id., Ex. US-5 at 43-44.) He further testified that highly brisant explosives, however, are not exclusively military in origin; in fact, the same physical effects are produced by a number of commercial or industrial highly brisant explosives. (Id. at 44.) Heckman concluded that, based on the evidence presented for analysis, it was impossible to determine with scientific certainty whether the explosion at Beacon was either military or commercial in origin. (Id. at 37-38, 43-45.)

 Plaintiff's expert, William J. Cruice of Hazards Research Corporation, disagrees with this conclusion. After reviewing photographs of the site and the debris, Cruice states that "the only probable causative agent for the incident in question is a military warhead or similar military device." (Id., Conlon 1 at 5.) This conclusion is dictated, Cruice opines, because the "use of the indicated high explosives . . . outside military applications is practically non-existent." (Id.) Cruice also asserts that identification of the device as a military item is further indicated because "TNT [trinitrotoluene] is not extensively used and is essentially unavailable in the non-military market" and trace tetryl residues were tentatively detected at the blast site. (Id. at 3.)

 In response to Cruice's opinion, Heckman points out that: (1) no metal has been identified which originally encased the explosive material, thus "there is no forensic evidence whatsoever to indicate that a steel encased explosive device was responsible"; (2) while it is true that tetryl has not been used commercially in the United States for a number a years, TNT is used commercially in a variety of products produced by, inter alia, Austin Powder Company, Trojan Corporation and Sierra Chemical Company; and (3) other companies, such as Beta Chemicals, offer bulk high explosives commercially, including Comp A-5, Comp C-4, HMX, Octol and TNT, all of which are normally considered military explosives. (Id., Ex. US-6 at 3-4.) In addition, Heckman notes that the instrument that tentatively detected tetryl residues at the blast site (a Barringer ion mobility spectrometer) has proven to be unreliable. Moreover, Heckman asserts, even if the ion mobility spectrometer correctly characterized the blast residues, because no control swabs from the hands of the evidence collection personnel were submitted, a determination as to the source of the tetryl residues cannot be made. (Id. at 2.) Heckman concludes that

 
the FBI Laboratory is not stating or implying in any way that a commercial explosive was responsible for the explosion. In actuality, there is no forensic evidence upon which an opinion could be based, with any scientific certainty, as to whether a military or ...

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