Ortiz v. United States

885 F. Supp. 363, 1995 U.S. Dist. LEXIS 6808, 1995 WL 298927
CourtDistrict Court, D. Puerto Rico
DecidedMay 9, 1995
DocketCiv. No. 91-2216CCC
StatusPublished
Cited by1 cases

This text of 885 F. Supp. 363 (Ortiz v. United States) is published on Counsel Stack Legal Research, covering District Court, D. Puerto Rico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ortiz v. United States, 885 F. Supp. 363, 1995 U.S. Dist. LEXIS 6808, 1995 WL 298927 (prd 1995).

Opinion

ORDER

CEREZO, Chief Judge.

This action, filed pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., arises from injuries suffered by Eduardo Ortiz on August 23, 1987 when a military ordnance device handed to him by one of his sons exploded in his hand. The accident occurred in restricted waters off the north coast of Pifieros Island, adjacent to and part of the restricted area of the Roosevelt Roads Navy Base at Ceiba, Puerto Rico. The plaintiffs had arrived there in their pleasure boat, accompanied by three other families who had their own boats.

A bench trial was held on April 21-23, 1993. The defendant submitted its post-trial brief on September 26, 1994; plaintiffs’ brief followed on October 25, 1994.1

The uncontroverted facts of the incident are as follows:

Pifieros Island, approximately one-half square mile in size, is used for military training exercises. Retired Master Chief Thomas Keith, formerly attached to Naval Special Warfare Unit (Navy SEALS), prior to his retirement in late 1992 after 31 years of service, had himself conducted some 50 to 60 classes there dealing with unconventional warfare tactics and techniques, and the use of explosives and devices. An expert on the military training sessions conducted on the Island, he stated that the sessions would take place, primarily at night, for a week at a time between six to nine times a year. When the session ended, the entire class would make sweeps through the areas they had been using to pick up expended ordnance or any ordnance inadvertently left behind. He explained that training sessions are held on the Island, and not elsewhere on the base, specifically because it is an unpopulated Island. The ordnance, explosives, and explosive devices cannot be used in populated areas.

On the day of the accident, the OrtizMéndez family anchored their boat about 40 feet from the shore of the Island. After eating lunch, Eduardo Ortiz, two of his sons Arturo and Javier, ages 13 and 17 years old respectively, and his friend Luis Quiñones were in the water. The younger boy found an olive green-colored object, shaped like a soda pop can with a tape and hook-like part attached and approached his father with the object. Believing that the object might be dangerous, Ortiz moved to meet his son and took it away from him. Shortly thereafter, it exploded in his left hand, seriously maiming and burning the hand and causing burns on his chest.

Ortiz was taken to Marina Puerto Chico in Edgardo Colón’s vessel. Javier Ortiz-Méndez accompanied them. From there they went to Fajardo Hospital where Ortiz was [365]*365given a tetanus shot, antibiotics and an injection for pain. His hand was bandaged and he was then referred for treatment to the Medical Center in Río Piedras. He was hospitalized and treated there for a month.

Although Ortiz testified that he did not see any warning signs in the area of Pifieros where he and his friends were anchored, he stated that he did see various patrol boats in the area on that day, and on prior occasions, but the boats were far away and no one shouted or signaled to them to leave the area. His son Arturo, however, did testify that they were not allowed on the Island, from which we infer that plaintiffs did have general knowledge of the possible dangers there. Moreover, Edgardo Colón, one of his friends who accompanied them on his own boat, testified that Pineros was a restricted area because of military exercises and that they could not go ashore.

The object described by the plaintiffs was identified by Thomas Keith as a hand grenade simulator. He described the simulator as containing a low explosive, causing less risk of injury than the high explosive grenade. The simulator contains photo-flash powder and is ignited by a fusing system that includes a string pull with a toggle on it. Keith testified that the cylindrical simulator is made of cardboard material and at each end there is a wax fitting that is pressed into the cardboard itself making it airtight. The trainees ordinarily sprayed painted them green or black to conceal the white color; others would simply wrap olive green tape around the device to conceal the color at night. The tape could be used to substitute for the safety clip to secure the string so that the string is not pulled by accident. The simulator ignites in four to six seconds, depending on how tightly the powder is packed.

The witness distinguished this device from other types of simulators. He described the injuries he has seen caused by grenade simulators, first and second degree burns, but stated that he had never seen an injury in which the person was holding the device in his hand when it exploded.

Keith stated categorically that if either the black powder used for the fuse, or the photo-flash powder itself gets wet, or even damp, it will not detonate. He further stated that if the device fell in the water it would simply float ashore because there is an air pocket well sealed into the device. He also indicated that it would take weeks for the simulator to become so saturated that it would actually sink, and once it sank the device would not work because neither of the substances would burn. He concluded that it was found on land because it functioned in Ortiz’s hand and it would have had to be dry to do so.

Plaintiffs presented no evidence to controvert the government’s evidence regarding ignition of the powders or the material out of which the cylinder was made. Although Arturo Ortiz-Méndez testified that he found the object in a pile of things on the bottom under the water, we give no credibility to that statement, and find that the cylinder was picked up floating near the shore or on the Island.

Ortiz and his son Javier denied speaking to any officers at the hospital. Having evaluated the demeanor and credibility of the witness, however, we give credit to the testimony of Pedro Roldán, a police officer with the Fajardo maritime unit, who stated that he went to the Fajardo District Hospital where he spoke with both Ortiz and Javier who told him that his father had removed a tape from the object immediately before it exploded.

With regard to the presence of signs warning about the danger of explosives in the area and the patrolling of the adjacent waters by the maritime police and Navy, we find that the presence or absence of signs is not significant in light of the testimony from both parties that pleasure boats were allowed to anchor off the shore of the Island. Moreover, this was supported by the government’s own witnesses. Keith further testified that the signs which he first placed in 1977 were erected only on the beaches accessible to civilian boats. Pleasure boats would usually anchor on the western and northern part of the Island because it was more attractive and they could pull very close to the shore.

Keith testified that civilians are not allowed on this Island; it is designated as restricted because it has unexploded devices. He acknowledged, however, that he himself [366]*366has encountered civilians on Piñeros several times — mostly fisherman setting traps at night or coming ashore to have lunch. They would be advised that they had to leave and if they refused, he would call the base to have a patrol boat sent over there.

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885 F. Supp. 363, 1995 U.S. Dist. LEXIS 6808, 1995 WL 298927, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ortiz-v-united-states-prd-1995.