Findings of Fact 148 C. Cls. plaintiff Edward Gordon continued to be psychiatrically unfit to carry on his usual occupation as a result of his neurotic reaction to the explosion and to his injuries. (b) Plaintiff Morton Gordon, at the time of the explosion, suffered numerous burns of varying degree, on left ear, nose, eyelids, chin, his entire face, and right hand, leaving many permanent scars. He also lost most of his hair in this explosion. He has been under the care of three different doctors for his burns, for the nervous condition, and for the nasal condition. At the time of the medical examination on behalf of the Department of Justice, 311⁄2 years after the explosion, Morton Gordon continued to experience a stinging sensation at the burn scars of the right hand and left ear. The scars on the palm of the right hand were adherent and only slightly moveable. His nose is moderately enlarged, and he suffers frequent nosebleeds as a result of the nose injuries. He also suffers a post-traumatic neurosis, or nervous condition, as a result of his experiences at the time of the explosion and his injuries, which still persisted in mild degree at the time of this examination, characterized by acute intolerance to noise, being easily frightened by loud or sudden noises, by restlessness, and by tension, with a tendency to poor memory because of tension and preoccupation. (c) Plaintiff John Dahill is a police officer in the New York City Police Department. Just prior to the explosion he had entered the Royal Flush Bar and Grill to investigate Sutter's suspicious conduct in running from the premises, and was caught in the explosion. He received a departmental citation from the Police Department in connection with his conduct at the time of the explosion. This plaintiff suffered numerous burns of varying degree on the upper portions of both arms, on the calves and lower portions of both legs, and a large third-degree burn on his right ankle and foot, leaving many permanent scars. There is very little normal skin remaining between the scars on his right calf. One scar, measuring 10 centimeters by 2 centimeters, commences on the medial aspect of the right ankle and extends over and around the achilles tendon of the right foot. This scar becomes irritated, burns and 311 Findings of Fact itches, and has caused the plaintiff to take sick leave 5 or 6 times yearly since he returned to active duty. Following the explosion, plaintiff Dahill was in the hospital for 2 days, was on sick leave for 6 months, and then was put on a light duty basis for an additional 6 months. (d) Plaintiff Esteban Melendez sustained numerous burns of varying degree on forehead, face, chin, neck, wrist and hand 1eaving many permanent scars. The largest permanent Scars are: a scar 1 inch by 1⁄2 inch next to left eyebrow, and a scar 2 inches by 1 inch on front of the neck. (e) Plaintiff Jean Garcia, an unmarried woman, received numerous burns of varying degree on left lower leg and ankle, the shin and calf of right leg and right ankle and foot, leaving numerous permanent scars. She received a skin graft on the front lower portion of her left leg, leaving a permanent brownish scar 3 x 4 centimeters in size, and causing a cluster of white scars on her left thigh, the donor site of the skin graft. (f) Plaintiff Marie Flynn, a married woman, received numerous burns of varying degree on forehead, nose, face, neck, shoulders, upper arms, right forearm, abdomen, lower legs and feet, leaving numerous permanent scars. The larger permanent scars are: a depressed scar 4 centimeters by 4 millimeters on the nose; a diamond-shaped scar on the right shoulder 8 by 2 centimeters, and a scar on the left foot 4 by 5 centimeters in size. The numerous scars on the face and neck are pigmented and quite noticeable because of color contrast. (g) Plaintiff Carmen Rodriquez at the time of the ex plosion received painful erythematous burns with rare blistering both ankles and lower legs, which were diagnosed as first degree burns. She was given first aid treatment at St. Luke's Hospital, and an appointment for a return later that day, but did not return. (h) Plaintiff, 62 Lenox Ave., Incorporated, suffered loss of personal property and damage to its premises as a result of the explosion and fire. The replacement value of the damaged items was approximately $1,200. 8. time Eugene Francis McDermott was 19 years of age at the of the explosion. He was a supply sergeant in the United States Marine Corps, attached to the Headquarters Findings of Fact 148 C. Cls. and Service Company, Third Battalion, Eighth Marines and was stationed at Camp LeJeune, North Carolina. At the time of the explosion he was on leave from Camp LeJeune, North Carolina. 9. Immediately after activating the fuse of the incendiary grenade, McDermott was pursued by a police officer. McDermott was shot and killed while resisting arrest and attempting to attack the officer with a knife. 10. Mark Sutter was 19 years of age at the time of the explosion. He was a private in the United States Army. At the time of the explosion he was on leave from Wolters Air Force Base, Texas, where he was stationed. 11. Sutter was arrested shortly after the explosion and pleaded guilty of arson in the third degree in the Court of General Sessions for the City of New York. He received a suspended sentence from the Court of General Sessions and was turned over to Army authorities. No disciplinary action was taken against Sutter by the Army and he received an honorable discharge in October 1955. 12. Patrick J. Shanahan was 19 years of age at the time of the explosion. He was a seaman in the United States Navy. At the time of the explosion he was on leave from the Naval Technical Training Center, Jacksonville, Florida, where he was stationed. 13. Shanahan was arrested shortly after the explosion and pleaded guilty to arson in the third degree in the Court of General Sessions for the City of New York. He received a suspended sentence from the Court of General Sessions and was turned over to Naval authorities. Shanahan was court-martialed for overstaying the period of his leave during the time he was confined by New York police. He received a suspended three-month sentence from the Navy Court Martial and forfeited 3 months' pay. He was discharged as "undesirable" in September 1953. 14. McDermott, Sutter and Shanahan had been drinking heavily throughout the evening prior to the explosion. At the time they exploded the grenades they were thoroughly intoxicated. 15. The action of McDermott, Sutter and Shanahan in exploding the grenades was motivated by their feeling of 31 Findings of Fact intolerance of and dislike for Puerto Ricans of Spanish origin, and by their desire to cause trouble and frighten persons in a Puerto Rican neighborhood. 16. The two grenades involved in the explosion were (1) a white phosphorous incendiary grenade, and (2) a hand illuminating grenade. These grenades are of the type of official military ordnance, and had been manufactured specifically for use by the Armed Services. 17. These grenades are sometimes referred to as pyrotechnics and are used for illumination and as incendiaries. While they are capable of causing severe burns and starting fires, particularly in a small, crowded, enclosed space, they are not the ammunition adapted for use against personnel. For the latter use a fragmentation grenade is used. 18. The two grenades involved in the explosion at the Royal Flush Bar and Grill had been in the possession of Eugene Francis McDermott. Since he is dead, the question of how and where these grenades came into his possession depends largely upon circumstantial evidence. sions 19. McDermott's commanding officer at the time the explooccurred, and for some months prior thereto at Camp LeJeune was Col. Erik William Ritzau, and he was a witness in the case. Live ammunition at Camp LeJeune was stored in magazines in charge of the Ordnance Branch lo5 to 10 miles from Camp LeJeune. Colonel Ritzau could not recall the use of grenades, either fragmentation or pyrotechnic, at Camp LeJeune, nor the issuance of same to his battalion, though he admitted the possibility that Some pyrotechnics might have been so issued. cated However, he stated that his battalion went on maneuvers during the fall of 1952 to the Island of Vieques, Puerto Rico, and during such maneuvers the troops engaged in fragmentation grenade practice, and in maneuvers where the pyrotechnic grenades were employed. The fragmentation gre nade Practice was closely supervised, and the men were taken in small relays to pits from which the grenades were thrown, and in which the men would crouch to avoid injury from flying fragments. The grenades were issued one at a time and then exploded, and a careful check was kept to prevent the removal of any. In the troop maneuvers frag Findings of Fact 148 C. Cls. mentation grenades were not used, but incendiaries and phosphorous illuminating grenades were used to simulate battle conditions. It would seem a strong probability that McDermott, in the course of such maneuvers, in some manner obtained the two grenades in question and carried them back to Camp LeJeune with him, undetected, and took them with him when he went on leave. McDermott was the supply sergeant of the Headquarters and Service Company of the battalion, and any such pyrotechnic grenades issued for the use of his company on maneuvers were probably distributed through him. 20. The removal of such explosives from Camp LeJeune, North Carolina, was specifically prohibited by Marine Corps Regulations. 21. As shown above, H.R. 2458 referred to the court, recited allowances to the respective plaintiffs as follows: "the sum of $50,000 to Edward Gordon; the sum of $10,000 to Morton Gordon; the sum of $7,500 to John J. Dahill; the sum of $10,000 to Esteban Melendez; the sum of $10,000 to Jean Garcia; the sum of $10,000 to Marie Flynn; the sum of $1,500 to Carmen Rodriquez." As far as the testimony in this case is concerned, any damages sustained by plaintiffs are unliquidated damages and susceptible of determination only by a jury verdict. There is no proof from which it is possible to put a dollar value on such damages. From the nature of plaintiff's injuries, as above recited, it would seem that a substantial proportion of the sums listed for each plaintiff would have to be regarded as punitive or exemplary damages rather than compensatory. If plaintiffs are deemed entitled legally or morally to a recovery limited to compensatory damages, it would appear that not over 50 percent of the amount recited in each case should be allowed. 22. The sum of $1,200 proposed by H.R. 2458 to be paid to plaintiff 62 Lenox Ave., Incorporated, is fair and reasonable compensation for its property damage, and is found to be the damages sustained by this plaintiff. |