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SMITHFIELD FOODS INC et al v. UNITED STATES OF AMERICA

ATTENTION: It is possible that this information may no longer be current and therefore may be inaccurate. The index contains both open and closed cases and is not a complete list of cases in which an ACE Insurance Group company is involved. This information is provided to give interested persons an idea of the issues disputed in the indexed cases. For a full understanding of a case, one should read the rest of the court file, including the response. For the most up-to-date and complete information on a case, visit www.pacer.gov or contact the clerk of the relevant court.

Case Number: 
2:12-cv-02254 Search Pacer
ACE Group party(s): 
Opposing Party: 
Smithfield Foods Inc
Court Type: 
Federal
US District Court: 
Central District of California
Date Filed: 
Mar 16 2012

"COUNT ONE . NEGLIGENCE

27. Plaintiffs incorporate by reference Paragraphs 1-26 as if they were set forth herein.

28. Pursuant to Cal. Civ. Code §1714, as well as California common law [for example, see Parrott v United States (S.D. Cal. 1960) 181 F. Supp. P.2d 12] , the Navy owed a duty to the public at large (including Smithfield) to keep munitions and/or ordnance at the Twentynine Palms Base properly tracked, secured and stored, and to prevent any munitions/ordnance from finding its way into an uncontrolled and unsecured area, or into unauthorized hands.

29. As expressed in various regUlations,me-Navy was well aware of this aforementioned duty:
A. Twentynine Palms Combat Center Order ("CCO") :P3500AF provides that the Officer in Charge ("OIC") of the training range is responsible for the control, handling, and accountability of all
ammunition and explosives used in training exercises. The OIC shall ensure that all unexpended Class V munitions (which includes the Flare) are inventoried, verified and received for appropriate storage.
B. CCO P3500AF provides that safety is of the utmost importance in the use and handling of ammunition and explosives (which includes the Flare) and is the responsibility of each individual concerned. The primary responsibility is to prevent any conditions which may cause injury or death. All personnel involved in the use of ammunition and explosives will be thoroughly indoctrinated in safety precautions, procedures, and principles.
c. CCO P3500AF lists three major principles of safety relative to the use of ammunition and explosives (which includes the Flare) that will prevent accidents caused by the human element: (1) proper
supervision by qualified personnel; (2) proper training and instruction of individuals, crews, or other personnel who handle, transport, use or fire ammunition or explosives; and (3) proper and effective security.
D. CCO P3500AF requires all unit commanders to establish procedures which ensure recovery of all ordnance and salvageable ammunition components prior to departing from the firing site. removed from any military activity, nor shall it ever be abandoned, destroyed, fired indiscriminately, or otherwise disposed of in order to circumvent the inconvenience of returning it to a storage site.
F. Finally, CCO P3500AF provides that ammunition shall be expended for intended training purposes, only, and that burying or hiding Class V mumtlons for future use or other purposes IS expressly prohibited.

30. In order to fulfill the aforementioned duty, the Navy instituted a serious of mandatory (non-discretionary) procedures to be followed at the Twentynine Palms Base. These were designed to make sure that munitions/ordinance were accounted for and tracked as they left the armory (or other secured weapons storage facility), were distributed to Marines for use in training exercises in the field training grounds, and when any unused munitions were returned after training exercises were completed. These procedures included the following:
A. Twentynine Palms Combat Center Order ("CCO") 8000AD provides that all munitions (which includes the -Flare) used for field training "require either a staff noncommissioned officer (SNCO) or officer to sign for the munitions." The SNCO or officer who signs for the munitions must remain with those munitions until it is either: (1) expended or (2) they are turned back into the armory.
B. CCO 8000AD provides that any personnel withdrawing munitions must check in with the records department before actually withdrawing any munitions.
C. CCO 8000AD further states that munitions may be transported throughout the Base in vehicles that have been a completed vehicle inspection form and are driven by a driver certified to transport munitions, only.
D. CCO 8000AD provides that any munitions required for use prior to normal working hours, or on weekends may, with approval of the OIC, be loaded the previous day and staged at the armory. Under no circumstances will munitions be transported into, or staged in, the main camp area of Camp Wilson. Importantly, munitions to be pre-staged must be secured to "prevent pilferage." Vehicles holding pre-staged munitions will be chocked and a fire extinguisher must be placed in front of the vehicle to prevent unauthorized transport of the munitions.
E. Similarly, CCO 8000AD provides that any munitions returned when the armory is closed must be pre"staged and secured-to "prevent . pilferage." Again, the vehicle containing the pre-staged munitions must have the wheels chocked and a fire extinguisher must be placed in front
F. CCO 8000AD also provides that units utilizing Class V munitions must submit expenditure reports within 48 hours of completion of the exercise. Each report will include the quantity of munitions received, the quantity expended, and the quantity returned.
G. Upon information and belief, at Twentynine Palms Base CCO 8000AD was carried out as follows. Munitions/ordnance used for a training exercise were taken from a secured storage area (armory, munitions depot, etc.) and placed in a mobile artillery outpost (a Humvee). This outpost was manned by two artillery officers who distributed the munitions/ordnance as needed for the training exercise in question. The Gunnery Sergeant was responsible for checking out munitions/ordnance from the outpost and distributing them to the Marines involved in the training exercise. At the end of the exercise all unused munitions/ordnance were to be returned to the mobile artillery outpost.
H. Upon information and belief, in order to ensure that no unused munitions or ordnance left the training area at the conclusion of an exercise, all involved Marines were patted down before leaving the training area.
I. Furthermore, pursuant to CCO P3500AF, if (after the return of all unused munitions/ordnance) any Class V items (such as the Flare) should go missing, or are unaccounted for, a Missing, Lost, Stolen, or Recovered by an investigation into the whereabouts of the missing/unaccounted for munitions/ordnance.

31. With respect to the Flare at Twentynine Palms Base, the Navy violated the aforementioned mandatory policies and procedures, thereby breaching the duty of care referred to in <)[28 above. It ultimately failed to account for unused munitions/ordnance after the conclusion of a training exercise, permitting the Flare to find its way to an unsecured (as far as munitions/ordnance are concerned) area of the Base, where Mr. Popp found the flare and took it.

32. The Navy's aforementioned breach of duty was a proximate cause of the July 5, 2009 fire (and the damages set forth above). Had the Navy fulfilled its duty of care, Mr. Popp would not have come into possession of the Flare. Without the Flare, the fire would not have occurred.

33. Not only was the Navy's breach of duty a proximate cause of the July 5, 2009 fire, for the following reasons (among others) Mr. Popp taking the Flare off Twentynine Palms Base, his subsequent improper use of the Flare, and the resulting fire were foreseeable events:
A. In CCO P3500AF, the Navy recognized that the Flare, like any other Class V ordnance, is "designed to inflict casualties and destroy property and material. . . [and makes] no distinction between friend or foe."
B. Being concerned with the unauthorized use of munitions/ordinance by Marines and others, CCO P3500AF made it clear that ammunition or explosives will not be appropriated for personal use.
C. The Navy had experienced prior instances where Marines or other personnel had taken munitions/ordnance off a military base for personal use or gain. By way of example only, in August of 2006 a Marine sold six feet of sheet explosive, two 40mm flare grenades, two tear gas grenades, nine feet of detonation cord, and twenty-three non electronic blasting caps he had removed from the Precision Weapons Section of the Quantico, Virginia Marine Base. He was court martialed and sentenced to 57 months confinement."

The provided text is an excerpt from a document filed in this case. For a full understanding of the case, one should read the complete court file, including the response.

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