Butler v. U.S., s. 82-4402

• Decision Date: 12 March 1984
• Docket Number: 82-4475,Nos. 82-4402,s. 82-4402
• Citation: 726 F.2d 1057
• Parties: June Mills BUTLER, et al., Plaintiffs, v. UNITED STATES of America, Defendant-Third Party Appellant, v. HANCOCK COUNTY, MS, Third Party Defendant-Appellee. Robert C. PRICE, et al., Plaintiffs-Appellants Cross-Appellees, v. UNITED STATES of America, Defendant-Third Party Plaintiff-Appellee Cross- Appellant, v. HANCOCK COUNTY, MS, Third Party Defendant-Cross-Appellee. Augusta Ida VERRETT, et al., Plaintiffs-Appellants Cross-Appellees, v. UNITED STATES of America, Defendant-Third Party Plaintiff-Appellee Cross- Appellant, v. HANCOCK COUNTY, MS, Third Party Defendant Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1057

726 F.2d 1057

June Mills BUTLER, et al., Plaintiffs, v. UNITED STATES of America, Defendant-Third Party Appellant, v. HANCOCK COUNTY, MS, Third Party Defendant-Appellee.

Robert C. PRICE, et al., Plaintiffs-Appellants Cross-Appellees, v. UNITED STATES of America, Defendant-Third Party Plaintiff-Appellee Cross- Appellant, v. HANCOCK COUNTY, MS, Third Party Defendant-Cross-Appellee.

Augusta Ida VERRETT, et al., Plaintiffs-Appellants Cross-Appellees, v. UNITED STATES of America, Defendant-Third Party Plaintiff-Appellee Cross- Appellant, v. HANCOCK COUNTY, MS, Third Party Defendant Cross-Appellee.

Nos. 82-4402, 82-4475.

United States Court of Appeals, Fifth Circuit.

March 12, 1984.

James A. Lewis, Asst. U.S. Atty., Springfield, Ill., for U.S.

White & Morse, George E. Morse, Gulfport, Miss., Gex, Gex & Phillips, Walter J. Gex, III, Bay St. Louis, Miss., for Hancock County, MS.

John L. Hunter, David O. McCormick, Pascagoula, Miss., for plaintiffs-appellants cross-appellees.

Appeals from the United States District Court for the Southern District of Mississippi.

Before CLARK, Chief Judge, GARZA and JOLLY, Circuit Judges.

GARZA, Circuit Judge:

We have before us appeals and cross-appeals from the district court's judgment following a trial to the court of consolidated actions for wrongful death against the United States. Plaintiffs represent individuals who drowned in a depression located some 1,500 feet from a seawall, the depression formed by dredging operations of the Army Corps of Engineers while repairing the hurricane-damaged seawall.

Factual Background

The district court's Findings of Fact, from which our recitation of the facts derives, reflect the following:

Hurricane Betsy slammed into the Louisiana-Mississippi coastline in September of 1965, its 125 mph winds and 15 foot tidal surge killing 75 people and causing substantial property damage. Hancock County, Mississippi, bordered by Louisiana on the west and the Mississippi Sound (an arm of the Gulf of Mexico) on the south, suffered considerable damage, including the near total destruction of its seawall. The County, unable to perform the necessary repairs to the seawall, sought aid from the federal government's disaster relief program. The Hancock County Board of Supervisors formalized the request for assistance by passing a resolution regarding the same on October 15, 1965. ¹ The resolution stated, among other things, that the County would "hold and save the United States free from damages due to the approved work."

The Army Corps of Engineers (Corps) was to oversee and control the repair of the seawall and the clean-up of debris. It contracted with Farrell Construction Company (Farrell) in July of 1966 to perform the actual seawall repair and debris clean-up. Farrell subcontracted the work to Kingfisher Marine Services, Inc., which subcontracted the required dredging operations to Jahncke Dredging. The contract, however, provided that the Corps' Construction Division would retain ultimate control over the project and would approve the contractor's shop drawings, construction practices, methods, materials, samples, and work schedules. The contract also provided that conclusion of the project was subject to inspection and acceptance by the Corps.

After the seawall itself was repaired, a large amount of sand was needed to fill in around the seawall and repair its berm. The contract specified a particular quality of sand to be used and stated that the sand could be obtained by dredging in the Mississippi Sound. Soil boring samples, randomly taken along Hancock County's coastline, indicated that suitable sand was obtainable from an area in the water south of the Gulfside Methodist Assembly.

The dredging operation commenced in August of 1966 and was substantially completed by November of that year. The Corps inspected and accepted the repair project in July, 1967. The dredging, however, had left a large depression, or "borrow area," approximately 800 feet long and 400 feet wide located some 1500 feet off the seawall directly south of the Assembly. The Corps' repair contract contained specific requirements for the placement of signs warning of such borrow areas. ² The district court found that this requirement in the contract "was an acknowledge[ment] of the Corps duty to warn the public of the hazardous condition created by the dredging." Price v. United States, 530 F.Supp. 1010, 1013 (S.D.Miss.1981).

The Corps continued to act in a supervisory capacity while Farrell worked on the problem of marking the depression. At one point Farrell suggested that temporary signs be utilized, but the Corps instructed that only permanent signs would be acceptable. Furthermore, after Farrell had installed the signs, the Corps learned that some had been misplaced and required Farrell to relocate the signs.

At trial, expert witness Luther Fleming, a Safety Engineer employed by the Corps for ten years, testified that in his opinion the number of warning signs (one every 500 feet) was wholly inadequate. He further stated that the signs, placed only on the shore side of the depression, were inadequate to warn a person who had waded around to the seaward side of the depression and that the signs' wording, lettering size, and location of the signs on the poles was inadequate to reasonably warn the general public of the danger presented by the depression.

By letter dated March 16, 1967, the Corps asserted its intention to transfer the future operations and maintenance of the repair project to the County.

The beach adjacent to the Assembly and Jackson Ridge, now known as Buccaneer State Park, has been a popular public recreation area for many years; several thousand people visit the area on peak days. One reason for its popularity is that the water in that area is very shallow for a great distance out from shore, thus making it relatively safe for young swimmers and waders. After the creation of the depression in 1967, however, an unusually large number of drownings began to take place. Five people drowned in the depression in a ten day period in the summer of 1968, and three people staying at the Assembly drowned in the depression on August 11, 1973. Many other drownings occurred in the depression during the intervening years.

Russell Elliot, President of the Hancock County Board of Supervisors from 1968 through 1972 and a member of the Hancock County Rescue Squad, repeatedly reported these drownings to the Corps. The hazardous condition created by the depression was the topic of two meetings with the Corps in 1969, and the Board sought permission from the Corps to build a concrete riprap out to the depression in order to fill it in. The Corps refused permission, stating the riprap would create a navigation hazard. The Board then asked to surround the depression with pilings; this solution was rejected for like reasons. As found by the district court, "[t]he Corps repeatedly told the Board that the Corps had exclusive jurisdiction over the depression since it was out in the Mississippi Sound and that no piling, riprap or other materials could be placed around or in the depression without the Corps' expressed permission." Price v. United States, supra, at 1014.

In 1970, after pleas by the Board, the Corps tried filling the depression with material dredged from the Bayou Cadet channel. The fill material was of a silty nature, however, and only gave the appearance of a firm bottom. A swimmer attempting to stand on the material would simply sink through to the actual bottom of the depression.

On June 13, 1976, Francisco Verrett, with friends Harold Barquet and Greg Berry, waded out into the shallow water in front of Buccaneer State Park. The current moved them eastward to a point on the seaward side of the depression. Attempting to return to the beach, they waded into the depression. Verrett drowned. Barquet and Berry managed to swim several hundred feet to where shallow water was again found. Barquet then returned to the depression and made numerous dives to the apparent bottom to try to rescue Verrett, to no avail. Barquet noticed that the bottom was soft, such that his legs sank into the silt when he attempted to push off the bottom. Berry later recalled seeing a couple of wooden posts projecting a few feet out of the water; neither recalled seeing any warning signs on the posts.

The Corps received notice of the Verrett drowning and was again contacted by various persons concerning the depression, including Senator Stennis, Congressman Lott and Anita Lamb, Director of the Hancock County Chamber of Commerce. Again, the Corps failed to take any action to relieve the hazardous condition.

When Bobby Boudin became Civil Defense Director for the County in the Spring of 1977, he immediately began working to eliminate the dangerous condition created by the depression. His requests to the Corps to have the depression filled or surrounded by signs and pilings were excused for various reasons. Boudin, aware of the upcoming summer swimming season, ended up erecting three new signs himself.

Tragedy struck again on June 4, 1977. Eight members of a New Orleans church group visiting Buccaneer State Park waded out in the shallow water to the seaward side of the depression. It was low tide and the water was only waist deep. When they began to return to shore, however, they suddenly found themselves surrounded by the deep waters of the depression. In only minutes, Freddie Brown, Marcy R. Butler, Demetrius Myles, Chavela C. Price, Randall T. Shorts, and Peter Wells, Jr. drowned. The two survivors, Charles and Elaine DiBartolo, testified that the group was taken completely by surprise since the surrounding water was shallow and no warning signs were seen. Russell Elliot, who participated in the recovery operations, testified that no warning signs could be seen around the depression.

Bobby Boudin renewed his efforts to have something done about the depression. The...