Clem v. United States

• Decision Date: 29 January 1985
• Docket Number: No. S 83-430.,S 83-430.
• Citation: 601 F. Supp. 835
• Parties: Mary A. CLEM, Personal Representative of the Estate of Cary Lee Clem, Deceased, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Northern District of Indiana

601 F. Supp. 835

Mary A. CLEM, Personal Representative of the Estate of Cary Lee Clem, Deceased, Plaintiff, v. UNITED STATES of America, Defendant.

No. S 83-430.

United States District Court, N.D. Indiana, South Bend Division.

January 29, 1985.

COPYRIGHT MATERIAL OMITTED

Gerald A. Kamm, South Bend, Ind., Robert L. Dalmbert, Columbus, Ind., for plaintiff.

R. Lawrence Steele, Jr., U.S. Atty., Donald P. Moroz, Asst. U.S. Atty., South Bend, Ind., Patrick O. Cavanaugh, Trial Atty., Torts Branch, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for defendant.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

This case is an action under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. filed by plaintiff to recover damages from the United States for the wrongful death of her husband while at the Indiana Dunes National Lakeshore Park. This matter was tried by the court without a jury on November 29, 1984 and the parties were given until December 10, 1984 to file final memoranda in support of their positions. Because of the difficult legal questions presented in this case, further oral argument was held in this case on December 21, 1984 and the matter was taken under advisement. The parties were given until January 7, 1985 to file supplemental briefs which they have done. This Memorandum and Order contains the findings of fact and conclusions of law thereon pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

I. FINDINGS OF FACT

On July 28, 1982, Mr. and Mrs. Clem and their daughter visited the Indiana Dune National Lakeshore Park (Park) in Northwest Indiana. The Park is located on property owned by the United States of America and is operated under the auspices of the National Park Service of the Department of the Interior (NPS). The authorized boundary of the Park consisted of approximately 13,000 acres maintained by approximately 50 employees of the federal government. The Clems were not required to pay any type of fee in gaining admission to the Park and its various facilities.

Shortly after their arrival at the Park at approximately 11:00 to 11:30 A.M. on July 28, 1982, the Clems went to the Park's Visitor Center, to which they were directed by various signs located both within and outside the authorized boundary of the Park. At the Visitors Center, Mr. Clem picked up a brochure, which included a map of the Park, and he and Mrs. Clem viewed a film which described the environs of the Park and its activities. The film also contained a safety message about swimming in Lake Michigan. The brochure/map that the decedent obtained and reviewed on July 28, 1982 (Plaintiff's Exhibit 39), is only available from the NPS upon request. The map depicted in the brochure indicated which beaches were under the supervision of lifeguards. The brochure also contained the following written provisions:

Swimming. Beaches with parking are at West Beach (parking fee in summer), Kemil Road, Central Avenue, and Mt. Baldy. Be careful — Lake Michigan waters can be treacherous. Lifeguards work West Beach and Kemil Road during summer. West Beach has showers, bathrooms, and concessions. The others have portable toilets (no water).

The best place to begin your visit to the Lakeshore is at its Visitor Center 5 kilometers (3 miles) east of Indiana 49 on U.S. 12 at Kemil Road. Here you find information, maps, public telephones, activity schedule and free "Singing Sands Almanac" newspaper, an auditorium slide and tape program, book store, library, and a short loop nature trail through wooded dunes. Open daily except on December 25, January 1 and Thanksgiving.

Park Rangers. Rangers are on duty to help you enjoy yourself and to help protect both you and the lakeshore; ranger stations are shown on the map.

Mr. and Mrs. Clem decided to visit Mt. Baldy because it was the largest dune in the Park, to explore the dunes and beach area. Mt. Baldy is a sand dune located in the extreme eastern section of the Park. Nearby is one of five beaches located on land adjacent to Lake Michigan and was and is within the authorized boundary of the Park. Only two of the five beaches, West Beach and Kemil Road, were guarded beaches in the Summer of 1982. Mt. Baldy was, and remains, an unguarded beach area pursuant to the Indiana Dunes General Management Plan of 1980.

At approximately 1:15 P.M. on July 28, 1982, the Clems arrived at Mt. Baldy and noticed a sign posted near the parking lot entrance which contained, along with other information, the following language "Use caution-Lifeguards not Provided." Father Raymond Schulte, a Roman Catholic Priest, who often swam at Mt. Baldy, testified with respect to the sign as follows:

Q. What does the term "use caution" mean to you, Father?

A. I would say not go out over your head.

Q. How about—what does it mean when it says "Lifeguard not provided" to you?

A. Kind of swimming at your own risk.

After discussing the significance and the meaning of this sign, the Clems proceeded to the beach area where they observed 40 or 50 people in the water and on the beach. The Clems did not notice any signs on the beach advising them of existing water conditions or prohibiting swimming.

Shortly after 1:30 P.M., Mr. and Mrs. Clem and their daughter entered the waters of Lake Michigan for the first time. They had never been to the Park before and none of them had ever before been swimming in Lake Michigan. The waves at this time were between 2 and 4½ feet in height, with an undertow condition present. Mr. Clem proceeded to go out swimming past the sandbar and after a while he came back to his wife and daughter. At that time, Mrs. Clem proceeded out to the sandbar. When she attempted to swim back to shore but was unable to make any progress, she called for assistance. Her husband and another young man attempted to assist her but their efforts were ineffective. Father Schulte and his friend who were swimming on the sandbar approximately 40 yards from shore, heard shouting and proceeded out deeper to assist the Clems who were another 40 to 50 yards out further from shore. Father Schulte and his friend found they could not help them and swam back to the sandbar and shouted for help. Some additional people from shore brought inner tubes out to assist. Mrs. Clem eventually got to shore but her husband was caught in the undertow and drowned. Mr. Clem was pronounced dead shortly after the resuscitation efforts of other swimmers and Michigan City medical technicians proved unsuccessful.

In July of 1982, the Park employed beach and parking lot attendants, maintenance personnel and Park technicians, commonly referred to as rangers. On July 28, 1982, two rangers were assigned to patrol the Eastern District of the Park. In addition to patrol, they also had a multitude of other tasks to perform. All staffing and personnel decisions which relate to this case were made by the office of the Chief Ranger acting under the authority of the Park's Superintendent. Funding for the Park's operations stem directly from congressional appropriations allotted to the Department of the Interior. It is within the funding constraints imposed by Congress that the Park must operate.

The Park maintained a radio communication system so that lifeguards, rangers and various stations, including the "Visitor Center", could be kept up-to-date on current events. Shortly after 10:00 A.M., the West District, which was a guarded beach, radioed to the Dispatcher that the beach was closed because of a bad undertow. The East District lifeguard at Kemil Road Beach also notified the Dispatcher that they had closed the beach because of bad undertow shortly after 10:00 A.M.

It was the unwritten policy of the Park in July of 1982 for rangers to check all easily accessible beaches, including Mt. Baldy Beach so as to warn swimmers of dangerous conditions that were known. On July 28, 1982 various park rangers, after being advised of the guarded beaches being closed for swimming because of the bad undertow proceeded to follow the Park policy and notify individuals using the unguarded beaches of the danger of strong undertow.

The plaintiff, Mrs. Clem, prior to instituting this lawsuit, filed a claim for wrongful death of Cary Lee Clem with the United States of America, Department of the Interior, National Park Services. Said claim was denied by defendant. At the time of his death, Mr. Clem was 35 years old and was employed by Reliance Electric in a supervisory capacity.

II. CONCLUSIONS OF LAW

The Federal Tort Claims Act (F.T.C. A.), 28 U.S.C. § 1346(b), 2671 et seq., constitutes a limited waiver of the United States' sovereign immunity. United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976); United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941). In conferring jurisdiction on federal district courts with respect to tort claims against the government, 28 U.S.C. § 1346(b) specifically provides:

The district courts ... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages ... for ... personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act of omission occurred.

This section, in conjunction with 28 U.S.C. § 2674 permits the United States to be held liable only in the same manner and to the same extent as a private individual would be under similar circumstances. See Rayonier v. United States, 352 U.S. 315, 319, 77 S.Ct. 374, 376, 1 L.Ed.2d 354 (1957); see also Proud v. United States, 723 F.2d 705, 706 (9th Cir.), cert. denied, ___ U.S. ___, 104 S.Ct. 3536, 82 L.Ed.2d 841 (1984). Since the alleged negligent acts and omissions of the NPS occurred in Indiana, the United States' liability is...