Clark v. United States

• Decision Date: 29 December 1954
• Docket Number: No. 13866.,13866.
• Citation: 218 F.2d 446
• Parties: Solon B. CLARK, Jr., and Geraldine A. Clark, husband and wife, and Related Cases, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

218 F.2d 446 (1954)

Solon B. CLARK, Jr., and Geraldine A. Clark, husband and wife, and Related Cases, Appellants, v. UNITED STATES of America, Appellee.

No. 13866.

United States Court of Appeals, Ninth Circuit.

December 29, 1954.

Solon B. Clark, Jr., A. C. Allen, Samuel B. Lawrence, Raymond G. Brown, Gerald J. Meindl, Irving Rand, Portland, Or., for appellants.

Warren E. Burger, Asst. Atty. Gen., Massillon M. Heuser, John J. Finn, Attys., Dept. of Justice, Washington, D. C., C. E. Luckey, U. S. Atty., Eugene, Walker Lowry, Sp. Asst. to Atty. Gen., for appellee.

Before ORR and POPE, Circuit Judges, and WALSH, District Judge.

ORR, Circuit Judge.

In the year 1948 flood waters in great volume flowed down the Columbia River. This volume of water generated sufficient force to cause a break in an embankment protecting the town of Vanport, Oregon, a large housing project, with the result that the town was inundated and substantial property damage was sustained. In addition, fourteen lives are reputed to have been lost. Some of the residents suffering loss took the position that the United States, because of the carelessness and negligence of certain of its agents and agencies, was liable to them in damages. They brought suit to recover under the Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671 et seq., in the United States District Court for Oregon. That Court found that the United States was not liable. We are asked to reverse.

Appellants make several contentions, one being that the Corps of Engineers of the United States Army, hereafter Engineers, was negligent in failing to perform a duty owed the residents of Vanport; another, that the Housing Authority of Portland, an alleged agency of the United States, was negligent; and, also, liability of the United States because of negligence of certain railroads. The United States, some twenty days prior to the flood, had taken technical possession of railroads which owned and maintained the embankment which failed. Appellants claim that these railroads thus became agencies of the United States, and that because of their alleged negligence, the United States became liable to the Vanport residents. The Trial Court made extensive findings in these cases and wrote two opinions which appear at 13 F.R.D. 342, and at 109 F.Supp. 213. All phases of this case are fully developed in the excellent opinion of the Trial Court. A reference thereto for a full statement of the case enables us to shorten our statement of details and of the findings of the Trial Court.

Vanport is a large housing project built at the expense of the United States upon land acquired by it during World War II for the purpose of providing housing for employees of Kaiser shipyards located in or near Portland, Oregon. The project was leased by the United States to the Housing Authority of Portland, hereafter H.A.P., which continued to manage the property after the war and until it was destroyed by the flood.

The town is located on low land adjament to the Columbia River within Peninsula Drainage District No. 1, a municipal corporation organized under Oregon law for drainage and flood protection purposes. Drainage District No. 1 is surrounded by four embankments; on the north and south by embankments first constructed by the District and later rebuilt by the Engineers; on the east by an embankment which supports an Oregon State Highway known as Denver Avenue and separates the District from Drainage District No. 2; on the west by an embankment consisting of two railroad fills and a highway fill joined together to constitute a single structure. In late May, 1948, Vanport was surrounded by high water on three sides, the north, south and west. There was no water on the east side because Peninsula Drainage District No. 2 is protected by its own embankment system.

As high water approached District No. 1 in late May, 1948, flood preparation measures, in which numerous public and private agencies participated, were taken. Flood fighting materials and equipment and a labor supply were placed in readiness. The levees were systematically patrolled by both the Vanport precinct of the sheriff's office and H.A.P. The western embankment was also patrolled by maintenance crews of the Spokane, Portland and Seattle Railway Company, hereafter S. P. & S., whose main line was constructed on that embankment. In addition, informal inspection trips were made by representatives of H.A.P., the Drainage District, the Railroad Companies, and the Engineers. These inspections continued to the moment of eventual failure of the embankment. No defect was detected which indicated imminence of an embankment failure. Newspapers carried announcements that Vanport was safe. Telephone operators at H.A.P. relayed similar information to Vanport residents.

On Saturday afternoon, May 29th, the Red Cross Disaster Committee called a meeting which was attended by various Red Cross officials and by the special representative of the Oregon Governor, County officials and a representative of H.A.P. No representative of the Engineers attended this meeting. The evacuation of Vanport as a precautionary measure was discussed. It was agreed that evacuation was unnecessary at that time. It was decided, however, to prepare a circular to be given to the residents of Vanport. The circular was prepared by an employee of H.A.P. and distributed to the residents early Sunday morning. It read as follows:

"To the Residents of Vanport

"Read this carefully and keep it in case you need to refer to it.

"The flood situation has not changed since the prediction made last Thursday that the highest water would come next Tuesday, that the dikes were high enough and strong enough to withstand the crest, and that barring unforeseen developments Vanport is safe.

"However, the Housing Authority is taking every possible precaution to protect the personal safety of every Vanport resident in the event of emergency. The plan outlined is as follows:

"1. In the event it becomes necessary to evacuate Vanport, the Housing Authority will give the warning at the earliest possible moment, upon the advice of the U. S. Army Engineers. Warning will be by siren and air horn blown continuously.

"2. Sound trucks will give instructions on what to do. Those instructions briefly are as follows:

"A. Don\'t get panicky! You have plenty of time. Take such valuables as money, papers, jewelry. Wear serviceable clothing, and pack essential personal belongings and a change of clothing in a small bag. Do not try to take too much. Turn off lights, stoves, close windows, lock the door.

"B. If you have a car observe traffic regulations. Carry as many people as you can.

"C. If you haven\'t a car go toward Denver Avenue, or the Railroad Embankment, whichever is closest. Portland Traction buses will operate in the project or on Denver Avenue, depending on conditions, to take persons to places of emergency shelter. Upon arrival at shelter, the Red Cross will assume responsibility for registration and for emergency food, shelter, and clothing. The county health department will provide emergency medical care. Cases of sickness, old age, or disability where special assistance will be necessary in case of evacuation should be reported now to the Sheriff\'s Office. Such cases, if they can conveniently do so, are encouraged to leave Vanport now for the next few days.

"Also, persons who for any reason are leaving Vanport to be away for several days are urged to register at the Sheriff\'s Office before leaving. This will help to answer inquiries from anxious friends and relatives who do not know where you are.

"Remember:

"Dikes Are Safe At Present

"You Will Be Warned If Necessary

"You Will Have Time To Leave

"Don\'t Get Excited!"

On Sunday morning, May 30th, an S. P. & S. section foreman discovered some settling of the track. Trains were ordered to proceed slowly, but it was not considered necessary then or at any time before the break to halt traffic. Railroad employees and others were on the western embankment both Sunday morning and afternoon.

What happened on Sunday afternoon is recounted in the District Court's Finding of Fact No. 6, as follows:

"6. At approximately four thirty on Sunday afternoon, May 30, 1948, and when the flood water in the Columbia River stood at an elevation of 30.8 feet, m. s. l., the western embankment at Peninsula Drainage District No. 1 suddenly failed. The failure resulted from a break in the embankment rather than overtopping. The failure was so rapid and unexpected that railroad employees who were inspecting the embankment were precipitated into the water. Within an hour the whole Vanport area was flooded. The houses in Vanport were damaged beyond repair and personal property belonging to the Vanport residents, including property of the plaintiffs, was destroyed by water damage as a direct result of the break. Fourteen lives are reputed to have been lost but about 16,000 people were evacuated safely."

As heretofore pointed out, appellants seek to hold the United States accountable for the alleged negligence of three groups:

1. The Railroads, at the time under Government seizure, with negligent maintenance and inspection of the embankment over which the trains ran;

2. The Engineers, because of the alleged negligent manner in which it...