The opinion of the court was delivered by: HERLANDS
HERLANDS, District Judge.
This case arises out of an accident on March 24, 1963 when Nicholas Cali, the plaintiff, then thirteen years old, fell from a structure on the obstacle or confidence course at Fort Dix, a United States Army installation located in New Jersey. He claims $50,000. damages. His mother, Mrs. Columba Cali, suing as co-plaintiff for medical expenses and loss of Nicholas' services, claims $50,000 damages.
Plaintiffs' claims are asserted under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 1402, 2401, and 2674. Counsel agree that New Jersey substantive law is applicable.
The formal pretrial order, filed February 9, 1966, stipulates that the following facts are "not in dispute":
"a. At all relevant times, the plaintiffs were residents of the Southern District of New York.
b. On or about March 24th, 1963, the plaintiff NICHOLAS CALI, then an infant aged 13 years, legally entered the premises of Fort Dix, New Jersey, a military facility of the defendant UNITED STATES, as a visitor.
c. On the afternoon of that day NICHOLAS CALI, accompanied by his parents; his older brother, then an Army Trainee; and his older sister, visited a regimental confidence course maintained by the defendant for the training of Army soldiers at Fort Dix.
d. The plaintiff, NICHOLAS CALI, climbed the 'Slide for Life', an obstacle on the course, by means of a ladder that was part of the obstacle. The 'Slide for Life' consists of a tower 19 or 20 feet high with a platform at the top; from the platform, sturdy rope slants downward on an angle to a point on the ground 46 feet from the base of the tower.
e. After reaching the platform, the plaintiff, NICHOLAS CALI, began to climb down the rope; during the descent, he fell to the ground.
f. The defendant refused to render medical assistance to the infant plaintiff, at the medical center on Fort Dix because of the child's civilian status.
g. That as a result of the fall herein, the infant plaintiff, NICHOLAS CALI, sustained a fracture of the right radius and ulna with the fracture extending through the radia epiphysis."
During the trial, it was stipulated that the sum of $612. represents the reasonable value of all medical and hospital expenses and services attributable to the accident (75).*
Virtually all of the other relevant facts are the subjects of conflicting testimony and inferences. The decision turns on questions of credibility.
Facts Established by Fair Preponderance of Credible Evidence
The accident occurred under the circumstances now to be described.
Fort Dix contained an area called the confidence or obstacle course. Its dimensions were about 200 yards from east to west, and about 75 yards from north to south (548-551). The north side was open (549) while the three other sides were adjacent to wooded areas, each of which contained picnic grounds (549). The main picnic ground was encompassed within the southern wooded area (671).
The obstacle course, which was not enclosed (645), was an off limits area to the general public (644) and to anyone else who was not a trainee actually using the course under supervision (648-649). A trainee received training on the obstacle course at least twice (546-547) during an eight-week cycle of basic training. He was instructed before being permitted to use any of the obstacles.
The course contained twenty-three different obstacles, each separately numbered and named by signs, designed to teach and test a soldier's confidence in negotiating the obstacles. The obstacles are constructed of timber, logs, platforms, ropes and barbed wire (548-549, 552). None of the obstacles is enclosed. Well-beaten paths and one established dirt road were on the course (551).
The particular obstacle involved in this case is one called Slide For Life. It was located in the furthermost northeast corner of the course (549, 550, 556, 668-669).
Slide For Life consisted of three vertical wooden ladders, each about twenty feet tall, leading to a platform. The rungs of the ladder were about two or two and one half feet apart (565). At one side of the elevated platform was a five or six foot structure to which sturdy ropes were attached. These ropes slanted downward at an angle to a point on the ground forty-six feet from the base of the ladders.
On the perimeter of the obstacle course were eight signs reading: "Off Limits To Unauthorized Personnel" (552, 553, 555, 556, 646). These signs measured eighteen inches from top to bottom, and twenty-four inches from side to side. The letters on the signs were two inches wide and were black on a white background (553, 557, 668). These signs were positioned into the ground by a single wooden stake (668).
In addition to these off limits signs there were signs identifying each obstacle. These identification signs were affixed into the ground by two stakes (553, 668). These signs named and numbered the respective obstacles near which they were placed (552, 554).
By virtue of its location at the extreme northeast portion of the course, two of the off limits signs on the perimeter of the course were within twenty feet of Slide For Life (555, 556, 646-647). The sign identifying that obstacle was within ten feet of it (554).
A regimental roving guard in a jeep patrolled the camp area, including the obstacle course. This patrolling was standard operating procedure in force on the day of the accident (640-644). The patrol had the duty, in accordance with instructions, to keep unauthorized personnel out of off limits areas (643, 659).
Francis L. Novack, the defendant's witness, gave credible and impressive testimony based on close personal knowledge over a long period of time concerning the structures and signs on the obstacle course, operating safety procedures, and the absence of children from the course, - all of which bear directly upon various critical issues of this case. His testimony is accepted as trustworthy in all respects.
Mr. Novack served at Fort Dix as a major for three years beginning in 1954 (545-546, 558). In that capacity, he visited the obstacle course many times (546, 547, 558). From 1958 to 1960, he served as the safety director at Camp Kilmer (545, 558, 626). From May 1960 to April 1967 (when he became the safety director at Fort Dix), he served as safety inspector at Fort Dix (545, 626, 637). He was specially trained for that position by virtue of extensive studies as well as experience (544, 628-630).
His testimony establishes the fact that, during the period from May 1960 to April 1967 when he was safety inspector at Fort Dix, his duties required him to conduct safety surveys and inspections of all facilities and activities at Fort Dix, including the obstacle course (551, 552) and to see to it that the off limits signs were properly posted (547-548, 626, 630, 639); that proper measures for the safety of the children of camp visitors were taken (631-632); that he inspected the off limits signs on the obstacle course (548, 551); and that the signs previously described by him were on the course at all times (552, 660, 675, 676).
Mr. Novack's testimony is persuasive of the facts that he never saw any children on the obstacle course at any time, including Sundays, during the years that he was at Fort Dix (649-650); that his attention was never called to the use of any equipment on the obstacle course by children (653); and that the accident to Nicholas was the first one to children on the obstacle course that has ever been called to his attention (656).
While he cannot recall Sunday, March 24, 1963 as a specific day on which he looked at the obstacle course, he testified truthfully that in March, 1963 he worked five days a week and occasionally on weekends (633); and that he visited the course "many times on weekends" (634, 635). Sometimes on Sundays he would drive by the obstacle course; and on none of those occasions did he ever see any children in the area of the course (635-636). While "at some of the points" a roadway for cars was located from 300 to 1000 yards away from the course (636), he was able to testify that he remembered: "quite well, there were no children on the obstacle course" (636).
Through Mr. Novack, the defendant introduced ten photographs (Defendant's Exhibits C-1 to C-10) taken about a year after the accident, which however are fair and accurate representations of the conditions, including the off limits and identification signs, in existence on the course on the day of the accident (561-565, 633, 674-676).
This opinion has thus far described the physical and structural features of the obstacle course and how it was customarily maintained and used prior to and on March 24, 1963. Now to be detailed are the particular circumstances leading to the accident.
On Sunday, March 24, 1963, Anthony Cali, Nicholas' older brother, was stationed at Fort Dix for basic training. On that day, Anthony was visited by his family consisting of his parents, Mr. & Mrs. Jack Cali, his sister Dorothy and his brother, Nicholas.
Nicholas, whose thirteenth birthday was four days before the day of the visit, was a junior high school student. His school grades showed him to be of average intelligence (316-317). He apparently was physically well developed (Plaintiffs' Exhibit 8).
The Cali family called for Anthony at the orderly room; picked him up in the family car; drove to a parking lot; unpacked foodstuffs and eating utensils; and proceeded by foot across fields to wooded picnic grounds where they and two friends of Anthony had lunch.
After the family and the two friends of Anthony finished lunch, Anthony told the group that he wanted to show them around on an inspection tour, specifically mentioning the obstacle course. All of them were interested. Anthony guided them onto the obstacle course. They had to walk quite a distance from the picnic area until they reached the course. The obstacles themselves had not been visible from the picnic grounds.
The family and the two friends walked as a group through the course, Anthony acting as their guide. Nicholas was about eight feet ahead of the group but at all times within their sight and the call of their voice.
Nicholas climbed up the middle ladder of Slide For Life. None of the adults warned or directed Nicholas not to do that nor did they tell him to come down.
(Nicholas had previously climbed ropes in his gym class at Mark Twain Junior High School. When he had climbed ropes in school, mats were placed under the ropes to prevent injury in case of a fall.)
Nicholas reached the top of Slide For Life, went onto the platform, and started to decend by means of the slanting rope. He lost his grasp after sliding down a few feet because he had not wrapped his feet around the rope. He fell to the ground and fractured his right wrist.
The plaintiffs' case as presented in court was designed to skirt the actual facts just summarized, by contriving a story that would dovetail into the controlling New Jersey law of negligence.
The obstacle course was off limits to unauthorized personnel. Anthony acted improperly when he took his family onto the obstacle course for a sightseeing tour. More serious is Anthony's and his parents' dereliction in permitting Nicholas to play on various obstacles, i.e., the log path and the swinging rope, and then to climb Slide For Life, - all in their immediate presence.
In the pretrial order the plaintiffs admitted that Nicholas " accompanied by his parents; his older brother, then an Army trainee; and his older sister, visited a regimental confidence course * * * at Fort Dix". However, the plaintiffs realized that an admission that Nicholas had climbed Slide For Life in the presence of his parents and the other members of his family would be fatal to the plaintiffs' case. In order to escape the devastating implications of the truth, the story was concocted that there were no off limits signs on or about the obstacle course; that Nicholas ran away from the family just as they were about to enter the obstacle course; that whatever Nicholas thereafter did on the course was out of the family's sight and hearing; and that, until the accident happened (according to Mr. & Mrs. Cali) or until a few moments before it happened (according to Anthony), they did not know where Nicholas was or what he was doing.
Whatever sham facts supported their story were spuriously recalled by the Calis while details revelatory of the truth were ...