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$1.3-Million Settlement Reached in Shell Death

April 19, 1988|JANE FRITSCH | Times Staff Writer

The parents of an 8-year-old boy who died in 1983 when an artillery shell exploded in a Tierrasanta canyon have reached a $1.3-million settlement with the city of San Diego and two developers, bringing to $6.3 million the total awarded to the families of the two boys killed in the incident.

The settlement, announced Monday by lawyers for the parents of Matthew Smith, brings to $2.5 million the amount paid by the city in the deaths of the Smith boy and Corey Alden Peake, also 8, as well as the injury to Corey's brother Carl, now 16.

The Peake family received $5 million in a previously announced settlement, which included a substantial amount for the death of the boys' father, who was suffering from cancer and died one month after the incident because of the strain of his son's death, lawyers said.

Warning to Parents

At an emotional press conference Monday, the parents of both boys and their lawyers warned that officials have done little to prevent such accidents from happening again. They said an estimated 80,000 unexploded rounds remain in the area, which has no warning signs or fences.

"The kids do play in the canyons," said Robin Smith, Matthew's father. "I hear them, I see them. I often go down and see what's going on, and I'm looking almost at the same place where Corey and Matt were killed. You do what you can, but in a very small way."

Matthew's mother, Suzanne Gillick Pew, said little has been done to educate parents in the area about the dangers of the shells.

'Bombs Still Exist'

"I don't know a mother in Tierrasanta who understands what it means to have unexploded ordnance," she said.

"Bombs still exist in the Tierrasanta area, and there is still more building going on," said Vincent Bartolotta, the Peakes' lawyer. "We want all of the entities--the federal government, the city government, the developers that are involved out there--to take every step possible not to have this tragedy occur again."

Christiana Companies, which developed the 2,600-acre community in the early 1970s over a World War II-era artillery range, will pay a total of $3.54 million--$700,000 to the Smith family and $2.84 million to the Peakes.

Ponderosa Homes and Kaiser/Aetna Joint Venture, which built the Smith house on a Christiana lot, will pay the Smiths $160,000. VTN Southwest, a civil engineering firm, contributed $100,000 to the Peake settlement.

A trial over liability in the Smith boy's death was to begin Monday in Superior Court, but was called off late Friday when Christiana agreed to the settlement, said Patrick R. Frega, the lawyer for the Smith family. Lawyers for the city and the home builder had agreed to their shares earlier.

Gene Gordon, chief deputy city attorney, said Monday that city officials have considered posting signs but rejected the idea after a study showed that signs about explosives might actually attract children.

"Kids might be inclined to go in and look for it," Gordon said. Representatives of the Fire Department visit schools to warn children about the explosives, he added.

Government Being Sued

"We had some knowledge, but we were assured by the federal government that it would not be a problem," said Daniel Bacalski, Christiana's lawyer. "The city told us what to build and where to build."

In a separate action, the city and Christiana are suing the federal government to recover the cost of the settlements.

"We think the fault lies with the original owners of the property who got it (shells) there, failed to clean it up, and made it available to the public," Bacalski said. "I adamantly believe this problem is a governmental problem, and they are not doing anything about it."

Were Playing 'Fort'

The Peake and Smith boys were among six children who found the 37- or 57-millimeter tank shell in December, 1983, while playing "fort" in a canyon near their homes.

They examined the shell, tossed it in the bushes, retrieved it for another look, and banged it on a rock. The shell exploded, instantly killing the two 8-year-olds and injuring Carl, then 12.

Joanne Peake said Monday that her son, Carl, is "doing very well" physically.

"He still has scars on his legs and shrapnel behind his knee and in his buttocks," she said. "Finally, after four years, I think (he's) doing extremely well. He seems to be happier than he's been. We seem to be closer than we've been."

Peake has remained in the Tierrasanta house with Carl and her two other children, Collette, 11, and Chad, 7.

"My children will never forget," said Peake, whose voice broke several times during the hourlong press session. "My youngest, who was only 2 1/2, is afraid--afraid of death. He's afraid that something could happen to him any minute. He just goes into hysteria when he gets a little cut."

Carl remembers "mostly running up the hill yelling," she said. "He remembers standing there crying and hearing loud noise. I don't know what he saw anymore. It's like he kind of blanked out certain things.

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