Henderson v. U.S.

• Decision Date: 03 June 1992
• Docket Number: No. 91-1224,91-1224
• Citation: 965 F.2d 1488
• Parties: Linda HENDERSON; Robert Henderson, III; Eric Henderson; Dorothy Henderson, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1488

965 F.2d 1488

Linda HENDERSON; Robert Henderson, III; Eric Henderson Dorothy Henderson, Appellants, v. UNITED STATES of America, Appellee.

No. 91-1224.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 9, 1991.

Decided June 3, 1992.

Robert T. Beezley, Springfield, Mo., argued, for appellants.

Earl W. Brown, Asst. U.S. Atty., Springfield, Mo., argued, for appellee.

Before BOWMAN, Circuit Judge, HEANEY, Senior Circuit Judge, and LOKEN, Circuit Judge.

HEANEY, Senior Circuit Judge.

Linda Henderson, the wife of decedent, Robert F. Henderson, Jr., appeals the district court's summary judgment dismissal of her Federal Tort Claims action against the United States. We affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

BACKGROUND

The parties in this case do not dispute the facts. On January 10, 1987, Robert F. Henderson, Jr. was wade fishing on a gravel bar in Lake Taneycomo approximately one-fourth of a mile below Table Rock Dam near Branson, Missouri. The United States Army Corps of Engineers operates Table Rock Dam to provide hydroelectric power for the region. During the morning on which Robert Henderson was fishing, the Corps of Engineers released water from the dam to generate hydroelectric power. When the water was released, Robert Henderson was trapped on the gravel bar by rising lake waters and was eventually swept away to his death.

Robert Henderson had been fishing with a friend, Mary Ryan, with whom he had fished Lake Taneycomo in the past. Ryan testified that Robert Henderson had read a parking lot sign warning against rising waters, ¹ that they customarily parked their car near the sign, and that Robert Henderson had told her, "Don't be caught out there, the Corps will drown you like a rat." After fishing for about 30 minutes on the morning in question, Ryan noticed that the water level was inching up her waders, so she walked 100 yards downstream to where Robert Henderson was fishing to see if he was reacting to the rise in water level. Around the same time, two boaters near Robert Henderson yelled to him that he needed to leave the lake because water was beginning to be released through the dam. ² Although the boaters apparently heard the dam horn sound, Ryan, who was closer to the dam than Robert Henderson, claimed she did not hear it. Another fisherman near Robert Henderson also testified that he did not hear the horn. By the time Robert Henderson noticed the rising water and began to react to his predicament, the gravel bar on which he stood was being engulfed by and submerged under water. Once he realized he was in danger, Robert Henderson worked to get his waders off, but before he could do so, the water started rushing over his hips, until one large wave crept up his back and over his shoulders and washed him away.

The United States owns the portion of Lake Taneycomo where Robert Henderson was fishing. In October 1985, an assistant attorney general for the State of Missouri prepared a memorandum formally voicing concerns of citizens regarding the generating discharges from the Table Rock Dam and their effect on Lake Taneycomo. The memorandum recounted several instances in which fishermen had to be rescued from rising waters caused by the discharge of the dam; the memorandum particularly stated that "one resort owner who had been [on Lake Taneycomo] for several years said that eventually lives are going to be lost if some action is not taken." It concluded that "[t]he combination of the rapidity of the rising water and the existing warning system which cannot be heard Robert Henderson's wife, Linda, filed this wrongful death action against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671 et seq. (1988). Under this Act, the federal government is liable "in the same manner and to the same extent as a private individual under like circumstances...." 28 U.S.C. § 2674 (1988). Henderson alleges that the government is liable for her husband's death under exceptions to Missouri's Recreational Use Statute, which exceptions aside, generally absolves landowners from liability for recreational accidents on their property. ³ The district court granted summary judgment against Henderson, ruling that Robert Henderson proximately caused his own death and that the exceptions to Missouri's Recreational Use Statute did not apply in this case.

                on some occasions and [at] some locations, and not understood on others, does create problems which apparently need to be dealt with," and specifically recommended educating the public on rapid water level changes and installing a warning system which would adequately alert people to expect changes in the water level.   The attorney general's office submitted the memorandum to the Corps of Engineers.   When it was not acted upon, several follow-up letters encouraging action were sent to the Corps of Engineers.   After Robert Henderson drowned, the Corps of Engineers finally installed a louder, more audible horn
                

DISCUSSION

Before evaluating the district court's summary judgment dismissal of Linda Henderson's wrongful death action, we first address a jurisdictional issue raised by the government.

I. Subject Matter Jurisdiction

Citing section 3 of the Flood Control Act of 1928, the government argues that this action must be dismissed for lack of subject matter jurisdiction. Section 702c provides that "[n]o liability of any kind shall attach to, or rest upon the United States for any damage from or by flood or flood waters at any place." 33 U.S.C. § 702c (1988). While we agree with the government's characterization of this language as sweeping, the Supreme Court has ruled that the immunity it bestows upon the government is not absolute. See United States v. James, 478 U.S. 597, 605 n. 7, 106 S.Ct. 3116, 3121, n. 7, 92 L.Ed.2d 483 (1986) (citing with approval "Hayes v. United States, 585 F.2d 701, 702-03 (CA4 1978) ('If the plaintiff could prove damage to this farm as a result of the dam's operation as a recreational facility without relation to the operation of the dam as a flood control project, he would avoid the absolute bar of § 702c.' ")); cf. Zavadil v. United States, 908 F.2d 334, 336 (8th Cir.1990) (claim for damages barred because "at the time of the [swimming] accident the water level [in the lake] was being monitored for flood control" purposes); Dewitt Bank & Trust Co. v. United States, 878 F.2d 246, 247 (8th Cir.1989) (claim for damages for diving injury barred because "in operating the project for flood control and navigation, the Corps maintained the waters at [a] shallow Table Rock Dam was created, in part, for flood control purposes. See Goldberg v. Wade Lahar Constr. Co., 290 F.2d 408, 410-11 (8th Cir.1961). As the resident engineer at the dam testified, presently the primary purpose behind operating the dam is generating electric power. Indeed, the decision to release waters for generating electricity rests with the Associated Electric Cooperative, a private power company, which has contracted for this prerogative with the Department of Energy's Southwestern Power Administration. When the Associated Electric Cooperative decides it needs to tap the energy potential of Table Rock Dam, the Corps of Engineers is notified of this decision and releases water through the dam. Such releases are sporadic, do not conform to any predictable schedule, and occur at the request of the Associated Electric Cooperative. The Associated Electric Cooperative ordered the release of water on the day of Robert Henderson's death with the commercial purpose of generating power. On these facts, we cannot conclude that "governmental control of flood waters was a substantial factor in causing [Robert Henderson's] injuries." Dewitt Bank & Trust Co. v. United States, 878 F.2d at 247. We therefore hold that section 702c of the Flood Control Act does not bar Henderson's claim against the government.

                level.").   Accordingly, section 702c immunity applies if "governmental control of flood waters was a substantial factor in causing [the plaintiff's] injuries."  Dewitt Bank & Trust Co. v. United States, 878 F.2d at 247;  see also Zavadil v. United States, 908 F.2d at 336 (for the same proposition).   We do not believe that section 702c bars Henderson's cause of action in this case because the dam activity here was related to generating electricity and not to flood control
                

II. Summary Judgment Dismissal

The district court granted summary judgment for the government because (1) Missouri's Recreational Use Statute immunized the government from liability, and (2) Robert Henderson proximately caused his own death. Linda Henderson attacks both of these rulings.

A. Missouri Recreational Use Statute

The Missouri Recreational Use Statute generally immunizes a landowner from liability when an individual is injured while on the land for recreational purposes. See Mo.Ann.Stat. §§ 537.346 and 537.347 (Vernon 1988). ⁴ This landowner immunization does not apply, however, when (1) the government either acted maliciously or practiced gross negligence by failing to warn against a dangerous condition, or (2) the government merely negligently failed to warn or guard against an ultrahazardous condition. Under either alternative, the statute applies only if the government knew or should have known of the dangerous or ultrahazardous condition. ⁵ Noting that no Missouri case law has interpreted this legislation, the district court concluded that the government's operation of the dam was not malicious or grossly negligent and thus held that the Missouri Recreational Use Statute insulated the government from liability here. The district court did not discuss the statute's second exception relating to ultrahazardous conditions.

We first consider whether the government acted maliciously or practiced gross negligence by failing to warn or guard against the danger of releasing the dam waters. ⁶...