Cox v. US

Decision Date04 December 1992
Docket NumberCiv. A. No. 90-0126-C(S).
Citation827 F. Supp. 378
CourtU.S. District Court — Northern District of West Virginia
PartiesJohn R. COX and Rhonda K. Cox, as natural parents and next friend of Melissa Dawn Cox, Melissa Dawn Cox, individually, John Eric Cox and Jeffrey Robert Cox, Plaintiffs, v. UNITED STATES of America, Defendant.

David J. Romano, Clarksburg, WV, for plaintiffs.

William A. Kolibash, Helen Campbell Altmeyer, Wheeling, WV, for defendant.


STAMP, District Judge.

I. Introduction

Plaintiffs, filed the complaint in this civil action on December 11, 1990. The complaint, which was filed under the Federal Tort Claims Act, 28 U.S.C. § 2674 (1986), alleges that negligence on the part of the Corps of Engineers caused injury to the plaintiff, Melissa Dawn Cox. Ms. Cox was injured at Sutton Lake in Braxton County, West Virginia on June 6, 1988, when she fell from a rope swing which was hanging from a tree near the edge of the lake. Four motions remain pending in this matter and will be resolved in this opinion. First, the United States filed, on March 29, 1991, a Motion To Dismiss Under Rule 12(b)(6) Of The Federal Rules Of Civil Procedure And Motion To Strike Under Rule 12(f) Of The Federal Rules Of Civil Procedure. Plaintiffs filed their responsive memorandum on April 15, 1991. The United States filed its reply brief on April 19, 1991.

Next, the United States filed two motions on September 29, 1992, a Motion To Dismiss For Lack Of Subject Matter Jurisdiction and a Motion For Summary Judgment. Plaintiffs filed their responsive brief on October 20, 1992. The United States filed its reply on October 28, 1992.

Finally, on November 12, 1992, the United States filed a motion to continue the case generally primarily because the other three motions remained pending and the case was set for pre-trial conference on December 4, 1992, and jury selection and commencement of trial on January 5, 1993. The plaintiffs filed their response, opposing the motion, on November 20, 1992.

For the reasons stated herein, and as previously communicated to the parties by telephone prior to the entry of this Memorandum Opinion and Order, the United States' motion to dismiss for lack of subject matter jurisdiction is DENIED. The United States' motion for summary judgment is GRANTED. Because this Court will grant summary judgment in favor of the United States, this Court does not address the United States' motion to dismiss and strike. In addition, because this Court is granting summary judgment, the motion for continuance is rendered moot.

II. Undisputed Facts

The Sutton Lake reservoir is a federal flood control project located in Braxton County, West Virginia, on the Elk River, a tributary of the Kanawha River. This project was authorized by the Flood Control Act of 1928, Public Law No. 761, for the primary purpose of flood control. The project is maintained by the United States Army Corps of Engineers, an agency of the United States of America (hereinafter "the United States").

As is usually the case with regard to such federal flood control projects, the lake was opened to the public for recreational purposes. There is no charge by the United States for the use of the lake or the land surrounding the lake for swimming, picnicking, or other recreational purposes. On land encompassed within the project there are three campsites, the most elaborate of which requires a minimal payment of $10 for the use of electricity and facilities. One of the campsites is free of charge. Also located on the lake is a small marina and snack shop which is operated by a concessionaire, Sutton Lake Marina, Inc., which offers snacks and boat rental for those seeking such services. Sutton Lake Marina, Inc., pays a flat rental fee to the United States for the right to operate the stand.

The marina concessionaire paid the United States a flat rental fee of $100.00 per month, in order to operate his business on the United States' property. While the lease contained a provision for graduated rent should its profits exceed a certain amount, the amounts paid under that provision, when activated, were minimal ($105.75 for the year 1990 and $938.00 for the years 1987 and 1988). In addition, pursuant to 33 U.S.C. § 701c-3 (1986), the United States forwards seventy-five percent of the rental received from the concessionaire to the State of West Virginia. The concessionaire is a contractor whose business is operated totally independent of the United States.

The plaintiff's complaint arises due to an accident in which Melissa Cox, who was fourteen years old at the time of the accident, fell from a tree rope swing over an area near the shoreline of the lake as she was attempting to swing out over the lake on June 6, 1988. Ms. Cox fell onto the rocks and never reached the water. There has been no indication as to whether or not Ms. Cox meant to swing out over the water to jump into it or whether she intended merely to swing out over the water and then back to the shore. Melissa, along with two of her school mates, Heather Uldrich and Lorie Flint, had been driven to the lake by Melissa's older brother, Jeff, for the purpose of swimming. Melissa and her brother paid no fees or charges for use of the area. In order to arrive at the location of the rope swing, the plaintiff and her friends went to an area of the lake which was not the designated swimming area. Rather, they walked on a path through a wooded area in order to arrive at the rope swing, which was located in a wooded area next to the Bee Run picnic area of the Sutton Lake Facility. There was no beach nor designated swimming area at the site where the accident took place. As a result of the fall, the plaintiff suffered a serious closed head injury.

III. Discussion of the Motions
A. Motion to dismiss for lack of subject matter jurisdiction

The parties have treated the United States' motion, which in substance is based on 33 U.S.C. § 702c (1986), as a motion to dismiss for lack of subject matter jurisdiction under FED.R.CIV.P. 12(b)(1). Although this may be hair-splitting, the Court believes that it would have been more appropriate to file this motion under FED.R.CIV.P. 12(b)(6). See Hayes v. United States, 585 F.2d 701 (4th Cir.1978). However, since the parties seem to assume that this motion should come under Rule 12(b)(1), and since this distinction will not affect the decision of the motion, the Court will entertain the motion under Rule 12(b)(1).

This Court has subject matter jurisdiction over all cases arising under the Constitution, laws and treaties of the United States. 28 U.S.C. § 1331 (1986). A case cannot arise, however, under federal law, if the United States is immune from suit under that law. The plaintiffs in this case seek to avail themselves of the waiver of sovereign immunity contained in the Federal Tort Claim Act ("FTCA"). 28 U.S.C. § 2674 (1986). See Rayonier, Inc. v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957). However, several courts have held that the immunity provision of the Flood Control Act of 1928, 33 U.S.C. § 702c, is not repealed by the FTCA. See, e.g. Fryman v. United States, 901 F.2d 79 (7th Cir.1990); Callaway v. United States, 568 F.2d 684 (10th Cir. 1978); Florida E.C.R. Co. v. United States, 519 F.2d 1184 (5th Cir.1975); Dunavant v. United States, 520 F.Supp. 39 (E.D.Ark. 1981). The immunity provision provides in pertinent part: "No liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters at any place." 33 U.S.C. § 702c.

The United States Supreme Court discussed the immunity provisions of Section 702c in United States v. James, 478 U.S. 597, 106 S.Ct. 3116, 92 L.Ed.2d 483 (1986). In rejecting suggestions that the immunity provision of Section 702c was in any way ambiguous, the Supreme Court held that the terms "flood" and "flood waters" apply "to all waters contained in or carried through a federal flood control project for purposes of or related to flood control, as well as to waters that such projects cannot control." 478 U.S. at 605, 106 S.Ct. at 3121. As to the breadth of the immunity extended by Congress, the Court referred to the immunity as "sweeping", and found it difficult to imagine broader language. 478 U.S. at 604, 106 S.Ct. at 3121. The Supreme Court quoted the Eighth Circuit, saying Section 702c's language "safeguarded the United States against liability of any kind for damages from or by floods or flood waters in the broadest and most emphatic language". 478 U.S. at 608, 106 S.Ct. at 3121 (quoting National Mfg. Co. v. United States, 210 F.2d 263, 270 (8th Cir.1954)).

In James, two serious accidents had occurred in Arkansas and Louisiana, in which recreational users of reservoirs were swept through retaining structures when those structures were opened to release waters in order to control flooding. 478 U.S. at 599, 106 S.Ct. at 3118. The plaintiff-petitioners, who had been injured in these incidents argued that the Section 702c immunity did not extend to governmental mismanagement of recreational activities. The Supreme Court rejected this argument, noting that a "clear relinquishment of sovereign immunity is required to give justification for tort actions." 478 U.S. at 610, 106 S.Ct. at 3124. Of course, it is obvious that a water management activity like releasing waters to control flooding is no less related to floods and flood waters because it happens to interfere with or even injure recreational users of those same waters. The facts in James, therefore, make it an easy case. The parting words of the James court majority were that the immunity provision of Section 702c was designed "to protect the Federal Government from any liability that might arise out of flood control." 478 U.S. at 612, 106 S.Ct. at 3124.

The issue for this Court in the instant case is whether the immunity provision of Section 702c, as broadly expounded in James,...

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