City Sues Federal Government Over Fatal Blast : Tierrasanta: San Diego seeks reimbursement for $2.49 million paid in the death of two boys.

The city of San Diego has filed a lawsuit asking the federal government to reimburse it for $2.49 million paid to settle two suits brought against the city by the families of two boys killed in the 1983 explosion of a military shell in a Tierrasanta canyon.

But the immediate fate of the suit, filed late last week, hinges on the outcome of a hearing next month in a second San Diego federal court case, a suit that also involves the December 1983 deaths of the two boys, Corey Alden Peake and Matthew Smith, attorneys said Monday.

In that case, the developer of the 2,600-acre Tierrasanta community, Christiana Community Builders, is also asking the federal government to pay it back for the money it and its insurance companies paid--a total of $4.1 million--to the families of the two boys, said Christiana’s attorney, Dan Bacalski.

The government, claiming immunity under federal law, has asked that the Christiana case be dismissed, a request U.S. District Judge J. Lawrence Irving will take up at a Nov. 13 hearing, Bacalski said. If the Christiana case survives, the city’s case almost certainly will be joined with it, he said.

“It’s an all-or-nothing case,” Bacalski said Monday of the Nov. 13 hearing. “Either the federal government is entitled to immunity or we are entitled to be reimbursed. I think it would be a terrible result if the federal government should be immune for acts like this.”

The two 8-year-olds 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 Corey’s brother, Carl, then 12.

Tierrasanta, a community of condominiums and single-family homes, was built in the 1970s in an area that had been an artillery range for the 43-square-mile Marine Corps Camp Elliott during World War II. Later, the land was transferred to the Navy and eventually was bought by Christiana, which deeded 800 of the 2,600 acres to the city as open space.

In the uproar that followed the deaths of the boys, a Navy ordnance team swept the area and found more than 100 rounds of ammunition, most of it live. Although military ordnance teams swept the area in the 1960s and again in 1973, the canyons remain peppered with shells.

Attorneys for the families initially filed suit in both federal and state court, seeking damages from Christiana, the city and the federal government.

Irving at first dismissed the federal suit, saying the government was immune. He eventually reinstated it, after Christina asked him to reconsider, but by then the state court case was proceeding.

Last year, the builder and the city settled those state court cases with the families. Now both want the federal government to pay them back, contending it did not adequately warn of the danger from the shells, attorneys said.

While the federal government no longer owned the land when the boys were killed, “the former owner of the property just can’t walk away from it,” said Gene Gordon, chief deputy city attorney.

Although the city’s suit seeks full reimbursement, the city would be “amenable” to settlement talks, Gordon said.

Michael E. Quinton, the assistant U.S. attorney handling the Christiana case, said he could not comment on the city’s suit because he had not seen it yet. As for Christiana’s suit, “we’ll know (Nov. 13) whether the judge agrees with our position,” he said.

Signs warning of the shells, meanwhile, finally have been posted in Tierrasanta, Bacalski said. Last year, after the state court suits were settled, the builder put them up and the city agreed to share the cost, he said.