Clark v. United States

• Decision Date: 23 October 1952
• Docket Number: Civ. 4420.
• Citation: 109 F. Supp. 213
• Parties: CLARK et ux. v. UNITED STATES.
• Court: U.S. District Court — District of Oregon

109 F. Supp. 213

CLARK et ux. v. UNITED STATES.

Civ. 4420.

United States District Court D. Oregon.

October 23, 1952.

COPYRIGHT MATERIAL OMITTED

Ray G. Brown, Irving Rand, Solon B. Clark, G. J. Meindl and A. C. Allen, Portland, Or., for plaintiffs.

Henry L. Hess, U. S. Atty., Portland, Or., and Walker Lowry, Sp. Asst. to Atty. Gen., of San Francisco, Cal., for the government.

JAMES ALGER FEE, Chief Judge.

On May 30, 1948, when at a flood height of 29.6 feet above mean high water, the Columbia River broke through an embankment and flooded the city of Vanport, which then had a population of approximately sixteen thousand inhabitants. Much personal property was destroyed by the action of the water. Subsequently, more than seven hundred actions for this property damage, comprising some three thousand claims involving several millions of dollars, were filed against the United States for loss and damage to the property under the terms of the Tort Claims Act, 28 U.S. C.A. §§ 1346, 2671 et seq.

In order that there may be an understanding of the general situation, agreed facts drawn from the pre-trial order, which has elsewhere been printed, are set out.

Peninsula Drainage District No. 1 is a municipal corporation for drainage and flood protection of an area which was bounded by embankments. The north and south dikes were built by the Corps of Engineers, and the western, which had an elevation of 47.3 feet, a crown width of 75 feet and a thickness of 120 feet at the water level, had been built in the period from 1910 to 1918 by two railroad companies for the purpose of carrying trains and not for flood protection. The eastern side was outlined by another embankment topped by a state highway known as Denver Avenue. While the three other sides in time of flood were pressed upon by the waters of the Columbia River, the latter divided an area of land. All of the land in this Drainage District would have been covered to considerable depth in mean high water if it had not been for the three exterior embankments.

The government had condemned and owned at the time of the flood about eighty per cent of the land in and had purchased and operated the pumping system of this Drainage District. On a portion of this area the city of Vanport was built as a war housing project to accommodate employees of the Kaiser Ship Yards during the war. The Federal Housing Authority, by written document, turned over management of this project to Housing Authority of Portland (hereinafter called "Authority"), a local establishment created by state statute for that purpose. The units had been declared surplus quite a time before the flood and were being rented to any persons who fulfilled requirements set up by Federal Public Housing Administration.

The Columbia River rises in British Columbia and flows 1,210 miles to the Pacific Ocean. It is subject to floods culminating usually in June. In the period from 1858 to 1947, the flow at The Dalles has exceeded 900,000 feet per second in 1862, 1876, 1880 and 1894. The west embankment had withstood the floods of 1933 of a high of 27.7¹ feet; 1928, 27.6 feet; 1921, 27.4 feet; and other floods of less height. These figures were of public record and available to every one. The instant flood of 1948 crested at 32.4 feet after Vanport was flooded. However, the disaster was caused not by the overtopping of the dikes but by the failure of the western embankment.

The flood of May and June, 1948, involved the Columbia River and its tributaries. More than fifty cities and towns were affected. The flood rendered 70,000 people homeless and 5,000 homes were destroyed. More than 400,000 acres were inundated and 41 persons lost their lives. Property damage exceeded one hundred million dollars. The flood fight involved 475 miles of levees, protecting approximately 200,000 acres of land. During the flood fight, more than 10,000 persons, including 1,200 army troops, navy personnel, national guard troops and members of the Coast Guard participated.

Public and private agencies actively engaged in the Vanport flood fight or disaster relief were the State of Oregon and its agencies, the County of Multnomah and its agencies, the American National Red Cross, the Housing Authority of Portland, the United States Army Engineers, property owners in the Vanport area and Peninsula Drainage District No. 1, the Sixth Army, and the Coast Guard. The United States Weather Bureau also co-operated in various capacities.

The Army Engineers gave general publicity to the approaching high water, fairly and accurately predicted the height of the water on various days at Portland, and, to the limit of available personnel, furnished technical advice and assistance. The Engineers also maintained a careful and consistent patrol of the areas and dikes involved, including those at Vanport.

The personnel of the railroads, which owned the western fill which failed and operated trains over it, maintained a consistent and careful watch. Three of their employees were inspecting the embankment at the time of failure. The railroads had been subject to government supervision to prevent the stoppage of traffic pursuant to executive order No. 9957, dated May 10, 1948, which was still in effect on May 30.

Authority, by its Project Manager and other executive and administrative employees, managed Vanport in the interests of the Federal Public Housing Administration, which issued directives and had complete control of the policies in effect controlling the renting, financial management, and supposed welfare of the inhabitants. A bulletin was prepared, issued, and distributed to the occupants of Vanport by an executive employee of Authority regarding the situation in the event of a break or overflow of the levees.

No one expected or thought there was a possibility that the western embankment would fail. The Corps of Engineers, engineers of the railroad companies, Authority and all its executives and administrative employees, together with all representatives of the state, community, and national relief organizations, as well as the individuals resident in Vanport, according to their own testimony, believed not only that the western embankment would stand, but that the flood might overtop some other levee.

At approximately 4:30 on Sunday afternoon, May 30, 1948, the west embankment unexpectedly and suddenly broke so rapidly that employees of the Spokane, Portland & Seattle Railway Company, who were inspecting it, were precipitated into the water, where one of them remained for some hours before rescue. The whole area was flooded within an hour. The houses were damaged beyond repair. Personal property of these claimants was destroyed by water damage as a direct result of the break. There were about sixteen thousand persons evacuated safely, and only about fourteen individuals are reputed to have been lost.

This present group of cases relates solely to the loss and damage of personal property of the tenants of Authority.

The cases came on for trial and testimony was taken. Thereafter written briefs were filed. After the briefs had been thoroughly digested, the Court directed that the case be argued orally. At the conclusion of the argument, the cause was taken under submission. An opinion has been filed approving the pre-trial order in the light of the evidence as definitive of the issues of fact and law to be decided.²

The plaintiffs set out several well defined theories of recovery which are carried from the pleadings into the pre-trial order. It is claimed that the United States is liable for damage to and loss of the personal property of plaintiffs (a) by failure to control the floodwaters of the Columbia River, (b) in trespass by failure to maintain the dikes, (c) in negligence under the theory of res ipsa loquitur, (d) in negligence because of the claimed acts and omissions of the agents of the United States, or finally (e) because of the fact that an agency of the United States assumed responsibility for the safety of the personal property of each plaintiff.

In our consideration of the Federal Tort Claims Act, clarity is a necessity. Under our constitutional government, it is a basic postulate that all officers and agents thereof are subject to the rule of law. This heritage comes to us from the principles irrevocably established in the revolt from the Stuart kings. Here a divine right or inherent prerogative is vested neither in administrative bodies nor the executive itself. No man, however highly placed in the federal system, is above the law. A concomitant of this salutary theory is the responsibility of the individual for tortious or illegal acts although done in the scope of authority lawfully conferred upon him and even though he be acting under an express statute. Modernly, personal responsibility of the individual, acting as official or employee, is often a poor protection for a person injured by the tortious act of a governmental employee.

Congress remedied such injustices over a period of years by passing private indemnification bills. But this burden became intolerable. The Tort Claims statute was enacted to set a standard for recovery for persons injured by the acts of persons acting in an official capacity. The United States was to be liable only when and if the individual doing the act would have been liable to the person injured thereby. The statute imposes no new duties upon the government or upon government employees. The statute does not give new remedies to outside persons aggrieved where an official fails to perform his duty to the government.

There are two Fourth Circuit opinions which may be technically justifiable otherwise but which have overtones requiring the United States to respond where a duty required by statute of an official was neglected and an individual injured thereby.

As to the first of these cases, State of Maryland for Use of Pumphrey v. Manor Real Estate & Trust Co., 4 Cir., 176 F.2d 414, 419,...