Burlison v. U.S., 79-2023
| Decision Date | 11 July 1980 |
| Docket Number | No. 79-2023,79-2023 |
| Citation | 627 F.2d 119 |
| Parties | Pat BURLISON, Mitchell Smith, Joy Deck, Bobby Deck, Bertha Droke, H. W. Droke, Bette Droke, E. H. Felker, Bonnie Felker, Tom Felker, Ruby Merrick, David Don Pierce, Ronnie Hamlett, Clifford Hearing, Milva Keating, E. J. Langdon, Fannie Langdon, Joe Langdon, Jimmie O. Lea, Sr., H. A. Lea, Jr., Jack Lee, Jane Mitchell, Beulah Moore, Max R. Moore, Lorraine Smoak, James A. Jones, Leslie Kinchen, Marion E. Tucker, Bill Tucker, Larry Vance, Sammy Davis, Harold Scott, Glenda Scott, Ulous Vance, Luedell Vance, Imagene Young and Bob Hart, Appellants, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
James R. Reynolds, Ford, Ford, Crow & Reynolds, Kennett, Mo., for appellants; David Ford, Kennett, Mo., on brief.
Anne T. Shapleigh, Asst. U. S. Atty. (argued), St. Louis, Mo., and Robert D. Kingsland, U. S. Atty., St. Louis, Mo., on brief, for appellee.
Before HEANEY and ARNOLD, Circuit Judges, and WRIGHT, * District Judge.
Plaintiffs-appellants appeal from the dismissal of their cause of action brought against the United States for negligently causing water to flood their property. The district court dismissed the claim with prejudice under Fed.R.Civ.P. 12(b).
Appellants are thirty-eight owners and/or tenants of land located in Dunklin County, Missouri. In their original complaint, the appellants alleged the following:
That the Defendant, acting by and through Department of Army, Corps of Engineers, its contractors, agents and employees, in the vicinity of Big Lake area (dealing also with Little River Drainage District/Big Lake Drainage District Floodway, and Treasure Island and in vicinity along Ditch No. 81 of Little River Drainage District) enacted certain "control structures" and "access road" to same, as well as failed to place in operation the pumping plant on Treasure Island or to keep gates over or clear of drifts, which dammed the natural flow of water, or alternatively said damming was the specific cause of water backing up in great amount, or alternatively, in so doing created a "man-made flood," thereby causing damage to the land and productivity or crops thereon belonging to this Plaintiff, as hereinafter set forth.
The appellees answered and filed a motion to dismiss, contending that the United States is entitled to absolute immunity from suit pursuant to (1) 33 U.S.C. § 702c () or (2) 28 U.S.C. § 2680(a) (). After examining the pleadings, the district court granted the government's motion to dismiss, concluding that the acts alleged to be negligent were discretionary functions and were thus not subject to suit under the Federal Torts Claims Act. The appellants amended their complaint to delete the clause "enacted certain 'control structures' and 'access road' to same" and replaced it with "negligently designed and negligently constructed a road and drain in the area of same." The district court dismissed the amended complaint for the reasons cited in the original dismissal.
We need not decide whether the district court was correct in determining that the United States has not consented to be sued for the types of acts alleged in this case; we are convinced that 33 U.S.C. § 702c precludes liability in any event. That section, a part of the Flood Control Act of 1928, provides: "No liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters at any place * * * ." We have previously noted the breadth of this immunity and its importance in the statutory scheme:
(W)hen Congress entered upon flood control on the great scale contemplated by the (Flood Control) Acts it safeguarded the United States against liability of any kind for damage from or by floods or flood waters in the broadest and most emphatic language. * * *
Undoubtedly that absolute freedom of the government from liability for flood damages is and has been a factor of the greatest importance in the extent to which Congress has been and is willing to make appropriations for flood control and to engage in costly undertakings to reduce flood damages.
National Mfg. Co. v. United States, 210 F.2d 263, 270-271 (8th Cir.), cert. denied, 347 U.S. 967, 74 S.Ct. 778, 98 L.Ed. 1108 (1954), quoted in Taylor v. United States, 590 F.2d 263, 265-266 (8th Cir. 1979).
Despite the appellants' assertions to the contrary in their brief, there can be no serious question that the alleged negligent acts of the Army Corps of Engineers were committed in connection with a federal flood control project. We have no doubt that the design, construction and maintenance of the access road should be considered to be...
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