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SHELL v. UNITED STATES

January 26, 1982

Peggy SHELL, for herself Individually and as Administratrix of the Estate of Bevo Mac Shell, Deceased, Tracy Shell, and Anthony Shell, both being Infants under the age of 14 years, by Peggy Shell, their Mother and Natural Guardian, and Shell's Bar and Restaurant Corp., Plaintiffs,
v.
UNITED STATES of America, Defendant; Frank J. VASSALLO, as Administrator of the Estate of Dominick Vassallo, Deceased, Plaintiff, v. UNITED STATES of America, Defendant. Lucille ALLEVA, as Administratrix of the Estate of Frank Romanelli, Deceased, Plaintiff, v. UNITED STATES of America, Defendant



The opinion of the court was delivered by: NEAHER

MEMORANDUM OF DECISION AND ORDER

Shell Action

 Plaintiff commenced this action pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., on her own behalf and that of her infant children to recover for the wrongful death of her husband and their father, and for loss of property, due to the alleged negligence of the Department of the Navy, an agency of the defendant. The corporate plaintiff also sues for destruction of its business and property. The action was fully tried before Judge Dooling of this Court but his subsequent death occurred before a decision was reached. The case was thereafter reassigned to the writer, who has reviewed the transcript of the trial and the exhibits in evidence and studied the briefs of the parties. This memorandum constitutes the Court's findings of fact and conclusions of law pursuant to Rule 52(b), F.R.Civ.P. *fn1"

 The tragic event which gave rise to plaintiff's claims occurred on the morning of February 4, 1976. At approximately 7:20 A.M. a substantial portion of a huge brick wall suddenly collapsed, causing extensive damage to adjacent buildings and the death of Bevo Mac Shell, plaintiff's husband and father of the infant plaintiffs. Mr. Shell was the owner and operator of a bar and restaurant located in the most heavily damaged building at 85 Hudson Avenue and sustained fatal injuries in its ensuing collapse.

 The wall in question was located on the perimeter of the former Naval Shipyard in Brooklyn, New York. As nearly as can be determined, it was erected between 1805 and 1830 and thus was about 150 years old at the time of its collapse. The wall ran between Hudson Avenue and Evans Street, a distance of some 400 feet. It was 20 to 25 feet in height, four feet wide at the base and tapered to a width of 16 inches at the top. The collapsed portion was a crescent-shaped segment of the top eight feet of the wall's midsection for a distance of approximately 145 feet, directly adjacent to the buildings for which plaintiffs have brought suit.

 Liability

 Defendant concedes that New York law governs this case, 28 U.S.C. § 1346(b), and that if plaintiffs may rely upon the doctrine of res ipsa loquitur, a prima facie case of negligence has been established, which requires the government to come forward with evidence sufficient to rebut the inference of negligence. George Foltis, Inc. v. City of New York, 287 N.Y. 108, 118, 38 N.E.2d 455 (1941). On the facts here, the res ipsa loquitur rule is clearly applicable since it is undisputed that the wall was entirely on government property and exclusively within the defendant's control. And defendant also concedes that it was charged with the duty of exercising reasonable care in the inspection of the wall in order to ascertain the existence of defects which might require repair.

 Defendant's evidence established that it performed its duty of inspection only on the side of the wall which faced the Naval Shipyard. Lt. Gilbert Dalit, the investigative officer assigned to report on the collapse of the wall, testified that four or five prior inspection tours he made on the side adjacent to the private property were limited to the first 30 feet at the Evans Street end and the last 15 feet at the Hudson Avenue end. Thus it appears that some 350 feet of the wall remained uninspected. Moreover, there was no record of any repairs to the wall or of any stress tests or other examination of the condition of bricks and mortar. Defendant's own expert, Milton Greenstein, former Director of the Engineering Section at the Naval Shipyard, stressed the importance of visual inspection and periodic repointing of brick structures and conceded that with extensive maintenance, the wall would not have fallen. Lt. Dalit's report indicates that maintenance work was performed only on the Navy side-a clear admission that similar maintenance probably would have been required on the other side.

 Walls do not, in common experience, fall down absent negligence on the part of those charged with maintaining them. On the evidence as a whole, I find that the defendant did not exercise reasonable care in the maintenance of the wall and was, therefore, negligent and liable to the respective plaintiffs for those injuries and/or damages that were a proximate result of the wall's collapse.

 Damages

 Shell Claims

 The Shell plaintiffs seeks monetary damages for the wrongful death of their decedent, Bevo Mac Shell, and for the value of his property destroyed in the collapse of the wall. Damages for wrongful death are limited by statute to the "fair and just compensation for the pecuniary injuries resulting from the decedent's death to persons for whose benefit the action is brought." N.Y. Estates, Powers and Trusts Law, § 5-4.3 (McKinney 1967).

 Decedent was about 30 years old at the time of his death on February 4, 1976. He married plaintiff Peggy Shell in 1965 and had two children, Tracy born in 1967 and Anthony born in 1968. At the time of his marriage, decedent was employed as a packer by McNally Brothers, Inc., a company engaged in moving household goods, and was considered a reliable employee. According to McNally records, decedent earned $ 8,774.56 in 1969, $ 10,131.49 in 1970 and $ 5,638.95 in 1971, prior to leaving to open his own bar and grill business at 85 Hudson Avenue in Brooklyn. Since all decedent's business records were destroyed in the collapse of his premises, Mrs. Shell was compelled to estimate decedent's contribution to the support of the family unit, to which she also contributed from her own employment at Maimonides Hospital Center since 1971. Decedent's contribution at the time of his death was calculated to be approximately $ 1,285.00 per month or a total of $ 15,420 per year.

 Before considering the question of a "fair and just compensation" to plaintiffs in these circumstances, brief comment is required concerning defendant's general contentions. The Court finds no merit in the claim that plaintiffs were receiving no pecuniary benefits from decedent and had no likelihood of receiving any in the future. The Court rejects defendant's suggestions that decedent had separated from his family and was not contributing to their support, finding them largely based upon surmise and hearsay not entitled to credence. All of the direct testimony regarding the family relationship between decedent and his wife and children completely contradicts such contentions and is accepted as more likely the fact than not. Moreover, the issue is not how little or how much time the decedent spent with his wife and children, but whether his death resulted in ...


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