Chrisley v. United States

Decision Date23 September 1985
Docket NumberNo. 85-270-3.,85-270-3.
Citation620 F. Supp. 285
PartiesWanda G. CHRISLEY, Administratrix of the Estate of Thomas Darren Chrisley, deceased, Plaintiff, v. UNITED STATES of America, Defendant.
CourtU.S. District Court — District of South Carolina

Griffeth, Mays, Foster & Kittrell, Pope & Hudgens, P.A., Newberry, S.C., for plaintiff.

Vinton D. Lide, U.S. Atty., Paul E. Wilburn, III, Asst. U.S. Atty., Greenville, S.C., for defendant.

MEMORANDUM OPINION AND ORDER FOR SUMMARY JUDGMENT OF DISMISSAL

GEORGE ROSS ANDERSON, Jr., District Judge.

This is an action for the alleged wrongful death by drowning of the plaintiff's fifteen-year old son, Thomas Darren Chrisley, who fell from a rock outcropping into swiftly moving waters below the Richard B. Russell Dam. The defendant, United States of America, has moved for dismissal under F.R.Civ.P. 12(b)(1) and (6), or alternatively, for summary judgment under F.R.Civ.P. 56. For the following reasons, the court concludes that the defendant's Motion for Summary Judgment should be granted.

FINDINGS OF FACT

After examining the record in this case, hearing counsel's arguments upon the motions, considering the exhibits attached to the Motion and to the Memorandum in Opposition, and after reviewing submitted depositions, certain facts are evident and undisputed by either party.

The Richard B. Russell Dam and Lake is a multipurpose water resource project constructed and maintained by the United States Army Corps of Engineers. It is located on the Savannah River (headwaters of Clarks Hill Lake) on the border between South Carolina and Georgia. A portion of the water resource project which was owned and controlled by the defendant included a riverbank area below the dam on the South Carolina side. The South Carolina riverbank below the dam was a steep, wooded slope with a rocky shoreline. This bank was a favorite spot for fishermen, and paths indicating frequent travel through the area extended from the top of the high bank to the shoreline. At the time of the drowning, June 17, 1983, the United States Army Corps of Engineers had restricted public access to a portion of the South Carolina riverbank extending for approximately two hundred (200) feet below the dam. The Corps also prohibited boats and boaters from entering the water area within one thousand (1,000) feet below the dam. A cable had been placed across the river one thousand (1,000) feet downstream from the dam to keep boaters proceeding upstream from coming any closer to the dam.

Thomas Darren Chrisley was a reasonably healthy fifteen-year old who experienced no significant physical or mental handicaps. On June 17, 1983, at approximately 4:30 p.m., he and his father entered the bank area on the South Carolina side of the dam and proceeded to a location approximately five hundred (500) feet below the dam to fish for striped bass. They paid no entrance fees or admission fees for entry into or use of the bank area for fishing. The area in which the Chrisleys entered and in which they fished had not been restricted to fishermen or others who sought access to the river by way of the land. There were no signs or devices posted at the site which warned persons of the obviously steep and rocky riverbank and of the swiftly moving water current. Thomas Darren Chrisley and his father were familiar with the area below the dam. They had fished together there as recently as June 16, 1983, when they would have observed conditions similar to those which existed on June 17, 1983. Mr. Chrisley desired that his son stay out of the water and had warned him of hazardous conditions presented by the area.

On June 17, 1983, at approximately 8:00 p.m., Thomas Darren Chrisley, while aiding his father in landing a large fish, fell approximately six to ten feet from a rock on the South Carolina riverbank into the swiftly moving current. A Corps of Engineers' employee standing on the Georgia side of the river unsuccessfully attempted to gain the attention of the father, who at the time of the fall was downstream of his son, to let him know that the boy had fallen into the river. After resurfacing twice the boy disappeared under the water and apparently drowned. His body was recovered two days later approximately three hundred (300) feet below the point where he entered the water.

On the day of the drowning, the dam and powerhouse were still under construction, and the water which would accumulate on the face of the dam was being channeled through the dam by a series of five openings or sluice gates at the bottom of the dam. Passage of the water through the gates created a turbulent "whitewater" effect below the dam. Although the flow rate and turbulence of the water were altered from their natural condition by the passage through the sluice gates, this turbulent condition remained constant when the gates were open. All five sluice gates had been opened on June 14, 1983, and all five gates remained open from that date until the evening of June 17, 1983, when they were closed to assist in rescue operations for the Chrisley boy. The turbulence of the water would have been apparent to Thomas Darren Chrisley and his father when they came to the area on the afternoon of June 17, 1983, and it would not have been altered appreciably during their time at the area.

I. The Discretionary Function Exception of 28 U.S.C. § 2680(a)

The Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671, et seq., constitutes a limited waiver by the United States of sovereign immunity. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941). This waiver is limited in part by the discretionary function exception found in 28 U.S.C. § 2680(a) which provides that the Federal Tort Claims Act shall not apply to—

(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or a regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.

The exception "poses a jurisdictional prerequisite to suit, which the plaintiff must ultimately meet as a part of his overall burden to establish subject matter jurisdiction." Shirey v. United States, 582 F.Supp. 1251, 1259 (D.S.C.1984) (citing Baird v. United States, 653 F.2d 437, 440 (10th Cir.1981); First National Bank in Albuquerque v. United States, 552 F.2d 370, 376 (10th Cir.1977); and Smith v. United States, 546 F.2d 872, 877 (10th Cir. 1976)).

Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953) (hereinafter "Dalehite,") is the leading case on discretionary function exception, and its continuing validity was recently reaffirmed by the Supreme Court in its decision in Varig1. The court in Dalehite, stated:

The `discretionary function or duty' that cannot form a basis for suit under the Tort Claims Act includes more than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out operations of government in accordance with official directions cannot be actionable. Id., at 35-36, 73 S.Ct. at 967-68.

By 16 U.S.C. § 460, Congress assigned to the Department of the Army responsibility for the efficient management and operation of recreation facilities at water resource development projects. Under United States Army Corps of Engineer Regulation, ER XXXX-X-XXX, responsibility for all aspects of the operations, maintenance, and administration of a water resource project, such as Richard B. Russell Dam and Lake, is delegated to the on site manager.2

The United States, in its Motion and Memorandum in Support thereof, asserts that the Resource Manager at Richard B. Russell Lake and Dam project exercised a discretionary function when, in his capacity as an employee of the government, he restricted or did not restrict access to portions of the South Carolina bank below the dam.

The plaintiff argues that by the inclusion of the term "operations" in the description of the Resource Manager's duties, the Resource Manager functioned upon an operational level as opposed to a planning level; and consequently, his acting or failing to act to restrict or to post warnings at the concerned area was not an exercise of a discretionary function. To support her argument, the plaintiff relies upon a line of cases which seek to interpret Dalehite, by classifying the actions of government employees as being either on an operational level or a planning level. The employee who performs functions on a planning level would be capable of invoking the discretionary function exception, but those who act on the operational level would not be able to utilize the exception. The plaintiff relies in part on two cases, Epps v. United States, 187 F.Supp. 584 (E.D.S.C.1960), and Hardy v. United States, 187 F.Supp. 756 (E.D.S.C.1960). Because these cases discuss an action by government employees which requires no actual decisional process (i.e., surveying of a dam), the Court finds these cases inapplicable to an analysis of the type of decisions and actions exercised by the Resource Manager at Russell Lake.

To determine whether or not an act is an act of discretion, the Court must consider the nature of the conduct of the employee which is in question. Dalehite, however, made it clear that all government employees exercising discretion are covered by the exception. Supra, 346 U.S. at 33, 73 S.Ct. at 966. As to which acts or conduct of the government employees are excepted, The court in Varig, explained:

First, it is the nature of the conduct, rather than the status of the actor,
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    ...exists under Texas law so as to impose duty on federal officials, that does not circumvent § 2680(a)). Accord, Chrisley v. United States, 620 F.Supp. 285, 290-91 (D.S.C.1985), aff'd mem., 791 F.2d 165 (4th Cir.1986) (examining existence of duty under state law only after assuming arguendo t......
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