City, Developers Deny Fault as Time Bomb Ticks : $6.3-Million Settlement Doesn’t Defuse Live Artillery Rounds Still in Tierrasanta Canyon Where Children Play

Sometimes when the weather is good and school is out, Robin Smith can hear the children playing in the canyon just beyond his home in Tierrasanta.

“Often I go down and see what’s going on, and I’m looking almost at the same place where Corey and Matt were killed,” Smith said. “It’s just a natural place for kids to be. I do what I can to get them out of there. I feel compelled to get them out of the canyon.”

It was more than four years ago that Smith’s son, Matthew, and his friend, Corey Peake, both 8 years old, were killed by the explosion of an artillery shell they found in the canyon.

Lawsuits over the deaths have now been resolved and the city of San Diego has agreed to its biggest liability payment ever--$2.5 million to be split between the families of the boys. The share paid by private developers brought the total settlement to $6.3 million.

Despite the huge settlement, the parents say they are dissatisfied. Although none wanted to go through the ordeal of a trial, they are disappointed that the voluminous evidence their lawyers collected over four years will not come out in court.

The files contain hundreds of internal documents and dozens of depositions indicating that, over several decades, the federal government, the city and developers permitted a huge housing development to be built atop an artillery range where thousands of rounds of unexploded shells lie buried just below the surface.

Why no officials intervened to derail development plans during the decades between the end of World War II and the early 1970s, when construction began, remains unclear. Many of those involved have died, lawyers for the parents and the city say, and the memories of others have faded.

Officials Had Information

But the documents and testimony would have shown clearly that officials had a number of warnings about the danger and did little about it. The evidence also suggests why the city and the developers were willing to settle the case for so much money.

Sharon Cole remembers precisely the day 15 years ago when the children brought an artillery shell into her house on Carioca Court in Tierrasanta.

“When I came home from work, it was sitting on the table,” Cole recalled in an interview and depositions. “It looked like a bomb to me. It must have been two feet, maybe more. It looked huge . . . I was petrified.”

Cole called the Fire Department that day and took the children outside. They watched as a bomb-disposal team arrived, carefully removed the object from her house, placed it in a box and secured it in a special truck.

The firemen told her the shell had the explosive force of “a couple of sticks of dynamite” and was “very much alive.” It could be set off, they said, if it were simply dropped hard. “I had visions of the whole house blowing up,” Cole said. After that, Cole told her son and her teen-age brothers to stay out of the canyons where they had found the shell. She learned that their development had been built over an old artillery range and began calling and writing every official she could think of.

In a letter to the mayor’s office, Cole explained what she had learned about the area--that the land had been used extensively as a practice range and that “troops held war games here prior to the campaign in North Africa during World War II.” Heavy rains, like the ones they had recently had, caused bombs to percolate to the surface, she wrote.

“In short, we need a mine sweep in this area,” she concluded.

“Needless to say, if a child were to find one, then pick it up and pound it against a hard surface, it could be fatal.” That letter was dated March 22, 1973.

Sharon Cole remembers another day, 10 years later, when she was watching the television news. “I was absolutely devastated,” Cole said, “because what I had predicted had come true.”

In the fall of 1983, Matt Smith and Corey Peake were 8 years old; Corey’s brother Carl was 12. With a group of six or seven friends, they liked to play in the canyons and along the pathways that cut through the Tierrasanta community. The area just below the quiet cul-de-sac where Matt lived was almost irresistible for the band of friends, who had met while playing on soccer teams.

“We would go exploring and make wooden forts,” one of the boys recalled in a deposition recently. “We’d ride bikes, and we’d make up different kinds of games that we’d play.”

On the day of the accident, Dec. 10, 1983, “We went down to the canyon to look for a good place to build a fort,” the boy, now 12, recalled.

After deciding on a good spot, the boys began to clear away brush. “That’s when I found the bomb,” the boy said. “I found it near the base of one of the trees . . . . I showed the guys and they started passing it around.”

When the shell was handed to Matt, he examined it for a while, then threw it in the bushes “and said we should just leave it alone,” the boy said. A few minutes later, Corey retrieved the shell and he and Matt began to look at it again, the boy said. The others wandered off to look for branches to use as camouflage. “The last time I saw them, they were just looking at it,” he said.

About two minutes later the explosion occurred. Matt and Corey lay bleeding in the fort and Carl collapsed in a pool of blood after running up the hill.

Matt, whose parents were divorced, was staying with his father that day in the house his parents had bought when they first moved to Tierrasanta. His mother had since remarried and lived a few miles away.

“He wanted to come home and play and go . . . pick up a puppy I had bought for him for Christmas,” said Robin Smith, chief of urology at Sharp Memorial Hospital.

Smith remembers attending his son’s soccer game that morning. Later, he went to the hospital for a few hours while Matt played with his friends.

“I told Matt I’d be home in a couple of hours and we’d go down and pick up his puppy,” Smith said. “I was driving home, and I heard on the radio that a terrible accident had happened on Via Temprano. Three children were involved and two were dead. I knew it was my street. I can’t remember anything about it except that, when I got to the top of hill there was pandemonium. I got out of my car and everybody recognized it was me. They said don’t go down there, and I didn’t--and I’m glad I didn’t . . . I can’t tell you what happened for days after that.”

Matt’s mother, Suzanne Gillick-Pew, has vivid memories of that day: “I had been to a Christmas cookie exchange the night before, and you know what Matt wanted for breakfast that day? He wanted cookies.

“We fought and fought, and I said, ‘You can have cookies when you come home after the game, how do you like that?’ He really was a good little guy. His needs were simple.”

Breaking the News

Later that day, Gillick-Pew got a phone call while she was in the shower. There had been an accident in the canyon, she was told. “I really thought he’d been hit by a car maybe, or fell out of a tree,” she said. “When I arrived, Matt was already in a body bag. I asked to see him and they wouldn’t let me . . . . I was told the boys had found a bomb.”

Joanne Peake was hanging Christmas lights outside the house when the call came. She remembers running to catch the phone because her husband, Cap, was sleeping. He was recovering from chemotherapy and she did not want the phone to disturb him.

“They said, ‘Joanne, there’s been an accident. Get here immediately.” Both Carl and Corey had asked permission to ride their bikes on the trails in the canyon, and she had given it.

When she got out of her car at the scene, she recalled, “I heard a little girl say something about ‘He’s dead.’ I guess I knew then. Someone took my face in their hands and said, ‘Your oldest son Carl will be fine.’ I don’t remember much after that . . . . I had no idea in my wildest dreams what had happened.”

A U.S. government memorandum dated Feb. 19, 1964, notes that a number of Army officers attended a meeting that day to discuss reports of unexploded ammunition turning up in the old Camp Elliott area of San Diego that had been used as an artillery range during World War II.

A lieutenant suggested that the area be burned before a ground search was made because of heavy brush throughout the area. He offered the assistance of Army bomb-disposal personnel.

The effects of adverse publicity also were discussed, the memorandum notes. The officers determined that publicity about the leftover bombs could hurt a planned sale of the land by the General Services Administration. Nevertheless, says the memo’s unknown author, “the public should not be kept completely in the dark.”

Issued Joint Press Release

The following day, the Navy and the city put out press releases saying that “highly explosive live shells” had been found in the Camp Elliott area.

A surface sweep of the area would be conducted, they said, but it was a “highly dangerous situation” and people going into the area “may be subjecting themselves to possible injury or even death.”

Similar correspondence passed back and forth between the desks of military, GSA and city officials for a number of years in the 1960s. One memo notes that, because of the explosive hazards, “caution must be taken when heavy equipment is used and excavation work is being done.”

Nevertheless, the government went ahead with its plans to sell the land, and, in a complex land swap in the late 1960s, it ended up in the hands of Christiana Cos., which began to develop it into single-family homes.

At about the same time, the city was developing a master plan for the area. All the planning commissioners who are still alive said in depositions recently that no mention of ordnance was ever made at a planning commission hearing, according to Gene Gordon, deputy city attorney. “All of them testified that they were unaware of the existence of ordnance in the areas being planned for residential development.”

Part of the master plan they developed for the new community called for developers to donate to the city large sections of land as open space.

But in December, 1973, when it came time for the city to accept the deed for Christiana’s share of open space, city officials knew there was a problem. A woman named Sharon Cole had stirred up quite a controversy earlier in the year after her son and other children had brought home live rounds. After that, the Army had conducted a visual search of the area, but had not checked beneath the surface.

Letter to Mayor

An Army colonel named Gentry had sent a letter to then-Mayor Pete Wilson earlier that month saying, “I must emphasize once again that ours was a visual search and recommend that due caution still be taken in the area, as earth movement (either by heavy equipment or natural erosion,) may possibly bring further ordnance to the surface.”

And the federal government had put a lengthy “hold harmless” clause in the deed, which pointed out that the ground contained “unexploded and dangerous bombs, shells, rockets, mines and other charges,” either on the surface or below it.

So the city attorney’s office was asked for an opinion on whether the city could be held liable for accidents caused by the shells. In a letter sent to the mayor and city council on Dec. 27, 1973, the office concluded that there was “some risk” to people who might use the open space, but that the risk might not be substantial enough to make the city liable under the law. That same day, the city accepted the deed to the land.

By that time, Christiana, which had paid $5 million for the land, already had built hundreds of homes in the area and had plans for many more. The company was aware of the ordnance problem and had warned its heavy equipment operators to be careful while grading lots, the records show.

Christiana also was among those warned by Sharon Cole. Christiana never passed along that warning to homeowners or prospective buyers and didn’t mention the problem in its sales brochures. Christiana’s lawyer, Daniel Bacalski, said company executives believed the problem had been taken care of.

Martin Fenton, the president of Christiana, has said in a deposition that he knew little about the ordnance problem.

Knew Shells Were Found

Boone Gross, the firm’s second-ranking official, said in a deposition last December that he knew in the 1970s that children had found shells, but did not direct anyone in his firm to warn residents or buyers.

“Why didn’t you stop development and stop the sales of homes until you knew whether or not there was any more ordnance in that area?” a lawyer asked Gross.

“Why should we stop it?” Gross responded. “If it was going to be dangerous, the military would have said something to us or the city of San Diego would have said something to us, bring it to a screeching halt.”

Asked whether he thinks he should have become more personally involved in the elimination of the ordnance back in 1973, Gross responded: “Hindsight is a wonderful thing. Yes, it would have been nice if those children hadn’t been killed.”

Christiana’s share of the $6.3-million settlement was $3.54 million, the largest of all the defendants. Much of that amount will be paid by Christiana’s insurance company. Ponderosa Homes, which built the Smith house on a Christiana lot, will pay $160,000 and a civil engineering firm will contribute $100,000.

Christiana and the city will try to recover the money from the federal government, lawyers for both said.

Christiana decided to settle with the families to avoid the costs of a trial and to avoid facing a jury, Bacalski said.

“I think that a private developer is not a popular figure,” Bacalski said. “People tend to blame the developer for all sorts of things . . . . But it’s clear to me that the area should not have been turned into a residential subdivision without proper decontamination by the federal government.”

In the opinion of DeWitt (Red) Moody, the Tierrasanta community remains “grossly contaminated with explosive ordnance.” Moody, 61, spent 31 years in the Navy, five of them as commanding officer of the Explosive Ordnance Disposal School at Indian Head, Md., the only such school in any of the military services. During his career, he has hunted missing nuclear bombs off the coast of Spain and was called upon to help retrieve the wreckage of the space shuttle Challenger.

Now he runs his own consulting business and has taken a look at the Tierrasanta situation at the request of lawyers for the developer. In a deposition last November, Moody told lawyers involved in the Tierrasanta lawsuits that it could cost as much as $5,000 an acre to properly decontaminate the 1,839 acres of open space in the community.

If the job is to be done properly, he said, all the brush in the canyons must be burned and the land must be swept with metal detectors. It may also be necessary to excavate some of the land, he said. But, in the end, he added, you can never be sure you found everything.

Another Sweep Possible

A study completed last year for the Army Corps of Engineers estimates that 69,000 pieces of ordnance remain in the open space of Tierrasanta. Some are harmless fragments or duds, but an unknown number undoubtedly are live shells like the one that killed the Smith and Peake boys.

Next fall, five years after the deaths, the most thorough sweep to date may begin. The Pentagon is considering a Corps of Engineers proposal to spend $8.1 million on a decontamination program in which some brush would be burned and metal detectors would be used to search for shells hidden several feet below the surface.

They are likely to find a variety of projectiles, including small-caliber shells, armor-piercing rounds shot from anti-tank weapons and high-explosive rounds fired from 155-millimeter howitzers.

Development continues in Tierrasanta, but under revised city guidelines grading of lots may not begin until the land has been thoroughly searched and cleared.

The Lusk Co. has begun excavating 380 acres on the north end of Tierrasanta for development of a 1,700-unit residential community called Tierrasanta Norte.

John Brand, the project manager, said the firm has hired a private contractor to clear ordnance using both a visual sweep and metal detectors. He said the process is expensive, but declined to say what the total cost will be.

When people buy the new homes, he said, they will be given a brochure explaining the history of the land and the possibility that some ordnance remains.

Robin Smith said that, after four years, his anger has softened: “I don’t need to see anybody dripping blood and crucified. I accept the fact that I lost my son. But I’m afraid not enough people know about what’s going on.

“I definitely wanted to get this out in the open so that this wouldn’t happen to someone else’s child.”

No One Accepts Responsibility

Matt’s mother, Gillick-Pew, agrees that not much has changed. “That’s the real sad part. That’s what really disappoints me now,” she said.

“Every major participant in this lawsuit has claimed that it’s a terrible thing, but it’s ‘not my responsibility, it’s their responsibility, or it’s their responsibility. Well, it’s not anybody’s responsibility as far as they’re all concerned,” she said.

“I’m going to try to put this part of my life behind me and carry on with what my priorities are.” She focuses now on a bookstore she runs with her husband and on her teen-age daughter, Kristen, Matt’s older sister.

Joanne Peake said she, too, is getting her life back in order. Her husband died shortly after the exploding shell killed Corey and injured Carl. “There is a part of me that would have loved to go to trial, to see this through,” she said. “I was 34 when I became a widow and I’m 39 now. You can only take so much. All of these little boys who were involved would have been forced to remember.”

Carl, now a junior in high school, has recovered physically, she said, but carries a heavy emotional burden and finds it difficult to talk about what happened.

One day, he said, “Mom, I should have told them not to touch that thing,” she recalled.

“We have told him several times there was no way he could have known. It was not his fault.”

Excerpts From 1973 Letter Warning Mayor on Bombs

These are excerpts from a letter written to the mayor’s office by Sharon Cole, a Tierrasanta resident, 10 years before the accident:

“The recent heavy rains . . . have caused considerable erosion and several small bombs have been uncovered in the canyons adjacent to this development.”

“My sixth-grader brought a rusty old bomb home with detonator intact.”

“We were informed . . . it had an explosive force equal to approximately eight sticks of dynamite.”

” . . . A person riding a trail bike could ride over one and cause it to explode.”

” . . . If a child were to find one, then pick it up and pound it against a hard surface, it could be fatal.”

“The boy next door had uncovered a bomb . . . . He brought it home and put it on the kitchen table!”