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Fort Drum reviews site of fire that killed five soldiers, led to Feres Doctrine

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FORT DRUM — Cultural resources officials on post continue to research the site of a fire 65 years ago today that killed five soldiers to determine whether it could be eligible for placement in the National Register of Historic places.

“The site is still quite intact,” said E.W. Duane Quates, archaeologist for the Fort Drum Cultural Resources Program. “Things were where they should be.”

But the barracks fire in the early morning of Dec. 10, 1947, at Pine Camp, predecessor to the modern post, is more than a piece of history. It spawned a series of lawsuits producing what is known as the Feres Doctrine: that interpretation of the Federal Tort Claims Act limits service members and their family members from collecting damages in civil suits against the federal government for injuries and deaths connected to their service, even in cases of malpractice or negligence by other service members.

Mr. Quates said that during digs done earlier in the year, he and his team found the building’s footprint as it was in 1947, and are analyzing the items they found at the site.

In an office area, a typewriter was found, and pieces of a porcelain urinal were found in a latrine. Other items found include a stove, debris from the fire, framing lumber and a rubber-soled tennis shoe, along with uniform items such as a collar pin, zipper and buttons.

Mr. Quates said he hoped that his team’s work could be finished this winter, but it could be pushed back into the summer. He said he and his staff also are considering placing a marker at the site of the fire, on the southern side of the post.

The five soldiers who died during or as a result of the fire — Capt. Robert Dodge, Capt. Francis Turner, 1st Lt. Rudolph Feres, 1st Lt. Wallace Swilley and 1st Lt. Robert Manly — were on post for Exercise Snowdrop, a test of cold weather readiness. Four other soldiers also were injured in the blaze.

Four wrongful death suits from family members of soldiers killed in the fire were quickly dismissed by area courts. However, the lawsuit of Lt. Feres’s wife, Bernice, which claimed the two-story barracks was unsafe and the fire watch was inadequate, was appealed multiple times before it was combined with a pair of military medical malpractice suits, United States v. Griggs and Jefferson v. United States, at the Supreme Court.

On Dec. 4, 1950, the court ruled in Feres vs. United States that the government was not liable for the deaths, even in the cases of negligence, creating the legal precendent that stands to this day.

“This sort of set a standard,” said Elizabeth L. Hillman, a professor of law at the University of California Hastings College of the Law, San Francisco. “It remains the centerpiece for the way the courts view these kinds of claims.”

While supporters of the doctrine argue that the policy prevents lawsuits between service members that could hurt morale, and prevents second-guessing of decisions made by commanders in action in civilian courts, Ms. Hillman said the policy has drawn complaints that service members don’t have the same rights as civilians in instances of negligence and removed the incentive for the military to improve safety.

In the past few years, the Supreme Court has declined to hear cases where the doctrine has been applied, such as Witt v. United States, in which Air Force Staff Sgt. Dean Witt was left in a vegetative state and later died after a failed appendectomy at a military hospital; and Purcell v. United States, following the suicide of sailor Christopher Purcell while in Navy custody.

Retired Army Col. Richard D. Rosen, a professor at the Texas Tech School of Law and director of its Center of Military Law, said the most likely way to change the policy would be through an act of Congress. He said a change to allow lawsuits for malpractice could lead the military to face millions of dollars in liabilities, but that total could be limited with caps on damages that could be awarded.

However, he noted that currently there is little momentum to make such a change.

“Congress, you have to assume, is aware of this policy, and they’ve never changed it,” he said.

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