Callas' Estate v. U.S.
| Decision Date | 11 June 1982 |
| Docket Number | No. 81-2578,81-2578 |
| Citation | 682 F.2d 613 |
| Parties | ESTATE OF Alexander C. CALLAS, etc., et al., Plaintiffs-Appellees, v. UNITED STATES of America and United States Army Corps of Engineers, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Robert B. Breisblatt, Asst. U. S. Atty., Dan K. Webb, U. S. Atty., William R. Coulson, Asst. U. S. Atty., Chief Crim. Receiving & Appellate Div., Chicago, Ill., Frederick H. Branding, Asst. U. S. Atty., Chief Civil Div., for defendants-appellants.
Ronald S. Fishman, Fishman & Fishman, Chicago, Ill., for plaintiffs-appellees.
Before CUDAHY, Circuit Judge, FAIRCHILD, Senior Circuit Judge, and POSNER, Circuit Judge.
Judith Callas, administratrix of the estates of Alexander C. Callas and Gregory Callas, instituted this damage action against the United States and the United States Army Corps of Engineers (the "government") seeking recovery for the drowning deaths of her husband and son at Lock and Dam No. 8 on the Mississippi River. Jurisdiction is based on the Suits in Admiralty Act, 46 U.S.C. §§ 741-752 (1976). Following a bench trial on the issue of liability, the district court found all parties negligent and apportioned the fault among them. We affirm the finding of government liability but vacate and remand for reconsideration the district court's apportionment of fault.
On the morning of June 28, 1978, the sixteen foot fishing boat carrying Alexander C. Callas and his nineteen-year old son, Gregory, capsized in front of roller gate no. 1 of Lock and Dam No. 8 on the Mississippi River. Both of the Callases drowned. To understand the legal and factual issues presented by this tragedy, it is first necessary to describe in some detail the structure of the dam and the water conditions around it.
Lock and Dam No. 8 is located on the Mississippi River at Genoa, Wisconsin, and is operated by the defendant, the U. S. Army Corps of Engineers. As illustrated in Figure 1, 1 the lock portion of the structure consists of a main lock chamber and an (inoperable) auxiliary lock adjacent to the east bank of the river in the State of Wisconsin. The main lock and the auxiliary lock are separated by the intermediate wall, or "I-wall." To the west of the river wall is the dam portion of the structure. The movable gate section extends westward from the river wall 897 feet across the main channel of the river. This section is composed of five steel roller gates, each 80 feet in length, and ten steel tainter gates, each 35 feet in length. The accident involved in the instant case occurred on the downstream, or south, side of roller gate no. 1, which is the gate closest to the river wall.
The water conditions on the downstream side of the gates are perilous. Rapidly moving water discharged from the dam passes underneath the roller gates, where it strikes the slower river current. The discharged water then collides with baffle blocks located on the floor of the river approximately 60 feet downstream from the gates. These baffle blocks are designed to slow the flow of the water, but their effect is to cause the water to rise to the surface and to create great turbulence in the area in front of the gates. The surfacing water actually raises the water level several inches above the water level immediately in front of the gates, thus causing the surface current to flow back toward the dam. 2 In addition to this strong backcurrent, the surfacing water curls back toward the roller gates in a circular movement, sweeping around the south side of the auxiliary lock, past the river wall and into the roller gates. The testimony at trial placed the start of the backcurrent at between 30 and 50 feet downstream from the dam. To the south of the backcurrent, the river flows downstream with such strength and velocity that it is difficult if not impossible to keep a small boat on a course heading upstream toward the roller gates. On the day of the Callas' accident, the water 125 feet below the roller gates was choppy, swirling and turbulent, and this disturbance could be seen at a distance of 300 feet from the dam. Although the turbulence was visible to any boater in the area, the backcurrent was not noticeable and would have been seen only by those boaters looking for it.
Pursuant to discretionary authority vested in him by statute, 3 the Secretary of the Army has promulgated regulations designed to minimize the dangers of boating in the areas around the Mississippi River dams. The regulation applicable to Lock and Dam No. 8 provides:
(s) Restricted areas at locks and dams. All waters immediately above and below each dam, as posted by the respective District Engineers, are hereby designated as restricted areas. No vessel or other floating craft shall enter any such restricted area at any time. The limits of the restricted area at each dam will be determined by the responsible District Engineer and marked by signs and/or flashing red lights installed in conspicuous and appropriate places.
33 C.F.R. § 207.300(s) (1981). Since 1968, the area 100 feet downstream from the movable gate section of Lock and Dam No. 8 has been declared a restricted area, which boats are forbidden to enter. The area between 100 feet and 300 feet below the dam, including the auxiliary lock, has been designated as a caution area, which boats are permitted to enter. See Figure 1. 4
The quoted regulation in addition requires that the limits of the restricted areas be marked by "signs and/or flashing red lights installed in conspicuous and appropriate places." In the case of Lock and Dam No. 8, the responsible District Engineer has chosen to employ both signs and lights. 5 Flashing red lights, indicating the boundaries of the restricted area, have been placed on the I-wall at a point 100 feet downstream from the dam. Amber flashing lights, marking the limits of the caution area, have been located 300 feet downstream. See Figure 1. Both sets of lights were functioning on the day of the Callas' accident. Warning signs have also been used at Lock and Dam No. 8. From 1968 until the spring of 1978, three large signs were in place along the dam. Each sign read, "Restricted-Keep Away 100 Feet." In March, 1978, however, the signs were removed for repainting and the dam was left entirely without warning signs until June 27, 1978, the day before the Callas' accident. On that afternoon, one of the repainted signs was attached to the south end of the river wall, adjacent to roller gate no. 1. The sign read, "Danger-Keep Away 00 Feet." It should have read "100 feet," but the overlay for the digit "1" had not yet arrived. This single warning sign, absent the digit which indicated the limits of the restricted area, was in place on the morning of June 28, 1978, and would have been visible to the Callases.
Despite these efforts to warn the public of the dangers, boaters regularly transgress the limits of the restricted area. There was testimony at trial that fishermen attempt to get as close to the gates as possible, and that Corps employees at least once a week were forced to shout at boaters to keep them away from the danger area. The Coast Guard is charged with enforcing the navigation regulations but it rarely patrols the area. This situation has resulted in proposals, considered by the Corps, to return the restricted area to 300 feet or to erect a physical barrier to prevent boats from entering the restricted area. Although the safety problems have existed at the dam for some years, the Callases were the first persons to lose their lives in a boating accident in front of the roller gates at Lock and Dam No. 8. 6
At approximately 10:30 A.M. on June 28, 1978, Alexander Callas and his son, Gregory, rented a sixteen foot boat from an establishment located a few miles from the dam. Attaching their own 9.5 hp engine to the boat, they launched the boat at a landing site on the river downstream from the dam. The purpose of their trip, as it had been on the previous day, was to fish, and they presumably headed north toward the dam and the prime fishing areas. Sometime around 11:30 A.M., not long after the Callases must have arrived at the vicinity of the dam, Corps employees sitting in the stationhouse on the east side of the river heard cries for help. The equipment manager, Paul O. Benson, responded to the call. Jumping onto a nearby bicycle, he rode out to the river wall, which was about a three minute trip. He donned a life jacket and climbed down to the river surface. Immediately in front of roller gate no. 1, Benson observed an overturned boat and debris floating around it-a cooler, a gas tank and flotation cushions. As he watched, a body surfaced momentarily, but just as he tossed a life ring at it, the body again submerged. Benson called for a lifeboat and then went to close the roller gates. The bodies of Alexander and Gregory Callas were subsequently recovered from the river. There were no eyewitnesses to the accident.
The district court found that the Callases were probably fishing in the auxiliary lock with their engine turned off and with no anchor securing the boat. The court concluded that, caught in the circular eddy current carrying the boat toward roller gate no. 1, the Callases were unable to start their engine before the force of the backcurrent swept their boat into the moving roller gate, causing the boat to capsize. The government contends that these findings amount to pure speculation because there were no eyewitnesses to the accident. We are unable to conclude, however, that the findings are clearly erroneous. Alexander Callas on his most recent fishing trip, in May of 1978, had fished in the auxiliary lock, so it was reasonable to conclude that he did the same on the day of the accident. In addition, given the strong downstream current below 100 feet from the...
To continue reading
Request your trial
-
Arkansas River Co. v. US
...Cir.1988); Wiggins v. United States, 799 F.2d 962 (5th Cir.1986); Gemp v. United States, 684 F.2d 404 (6th Cir.1982); Callas v. United States, 682 F.2d 613 (7th Cir.1982); Canadian Transport Co. v. United States, 663 F.2d 1081 (D.C.Cir.1980); Bearce v. United States, 614 F.2d 556 (7th Cir.1......
-
Gollehon Farming v. U.S.
...of competing interests or the examination of economic constraints in light of the needs of the public. See, Estate of Callas v. United States, 682 F.2d 613, 620 (7th Cir.1982). 1. Application of the Discretionary Function Exception to the FTCA Claims Advanced by the Plaintiff-Grain As discu......
-
McMellon v. U.S.
...party who was the intended beneficiary of the government action relied on the government to his detriment."); Estate of Callas v. United States, 682 F.2d 613, 623 (7th Cir.1982) ("The government argues that even if the sign evidenced negligence, it did not engender justifiable reliance by t......
-
Garcia v. United States
...v. United States, 799 F.2d 962, 964 (5th Cir. 1986) ; Gemp v. United States, 684 F.2d 404 (6th Cir. 1982) ; Estate of Callas v. United States, 682 F.2d 613, 619-20 (7th Cir. 1982) ; Canadian Transport Co. v. United States, 663 F.2d 1081, 1085-86 (D.C. Cir. 1980) ; Chute v. United States, 61......
-
Suing the United States Under the Federal Tort Claims Act
...Footnotes: 1. 28 U.S.C. § 2674. 2. 28 U.S.C. § 2680(a). Dupree v. United States, 247 F.2d 819 (3rd Cir. 1957). 3. Callas v. United States, 682 F.2d 613 (7th Cir. 1982). 4. 28 U.S.C. § 2680(a); Dalehite v. United States, 346 U.S. 15 (1953). 5. 674 F.2d 554 (6th Cir. 1982). 6. Consolidated fo......