James v. U.S.

• Decision Date: 16 May 1985
• Docket Number: Nos. 83-2276,83-4522,s. 83-2276
• Citation: 760 F.2d 590
• Parties: Charlotte JAMES, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. Kathy BUTLER, Individually and as Surviving Wife and Heir of Eddy Butler, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. Susan B. CLARDY, Individually and as Natural Tutrix of the Minors, Bridget Marie Clardy and Kenneth Clardy, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 590

760 F.2d 590

Charlotte JAMES, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

Kathy BUTLER, Individually and as Surviving Wife and Heir of

Eddy Butler, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

Susan B. CLARDY, Individually and as Natural Tutrix of the Minors, Bridget Marie Clardy and Kenneth Clardy, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

Nos. 83-2276, 83-4522.

United States Court of Appeals Fifth Circuit.

May 16, 1985.

Sharp, Ward, Ross, McDaniel & Starr, T. John Ward, Richard F. Hightower, Longview, Tex., Old & Old, Mount Pleasant, Tex., for James and Butler.

Bob Wortham, U.S. Atty., Beaumont, Tex., William J. Cornelius, Jr., Asst. U.S. Atty., Tyler, Tex., for U.S. in No. 83-2276.

Thomas L. Jones, U.S. Dept. of Justice, Washington, D.C., for U.S. in both cases.

D'Amico, Curet & Dampf, Sam J. D'Amico, J. Michael McDonald, Baton Rouge, La., for Clardy.

Joseph S. Cage, Jr., U.S. Atty., Dosite H. Perkins, Jr., Asst. U.S. Atty., Shreveport, La., Rosemary Denson, Torts Branch, Civil Div., Dept. of Justice, Washington, D.C., for U.S. in No. 83-4522.

Appeal from the United States District Court for the Eastern District of Texas.

Appeal from the United States District Court for the Western District of Louisiana.

Before CLARK, Chief Judge, GOLDBERG, GEE, RUBIN, REAVLEY, POLITZ, RANDALL, TATE, JOHNSON, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS and HILL, Circuit Judges. ^*

REAVLEY, Circuit Judge:

These cases present the question whether Section 3 of the Flood Control Act of 1928, 33 U.S.C. Sec. 702c (1982), gives the United States absolute immunity where there would otherwise be liability under the Federal Tort Claims Act, 28 U.S.C. Secs. 2671-80 (1982), for personal injury resulting from government employees' negligent failure to warn of government-created hazards to known recreational users. We hold that the 1928 Act provides no such immunity, because the government's provision for the safety of recreational users of public waters is discrete from the government's control of floodwaters.

I. STATEMENT OF THE CASE

A. James v. United States

On June 8, 1979, the United States Corps of Engineers was discharging water in great volume through the Millwood Dam in Arkansas. The release of waters created a violent current near the dam. No signs warned of the danger. A cable strung with orange buoys usually delineated the area of danger, but it had broken and drifted away when struck by floating debris. Government personnel knew these warning devices were not in place, but did not attempt to repair them. They took no other steps to warn the public.

Charlotte James and Kathy Butler happened to be skiing near the dam. The skiers fell and were pulled by the strong current through the tainter gates; both were injured. Eddy Butler, Kathy's husband, dived into the water to try to save his wife, but was also pulled through the structure. He drowned. The survivors sought relief under the Federal Tort Claims Act.

After a bench trial, the district court found that the plaintiffs were not negligent, that government agents had willfully and even maliciously ¹ failed to warn of a known danger, and that this failure had been a proximate cause of the plaintiffs' injuries. The judge set the damages at $1,000,000 to Kathy Butler for her injuries and for the wrongful death of her husband, and at $40,000 for Charlotte James's personal injuries. He concluded, however, that section 702c barred plaintiffs' recovery because the injuries resulted from floodwaters related to a flood control project. We reverse, holding that section 702c presents no bar.

B. Clardy v. United States

On May 17, 1980, Kenneth Clardy and his father, Joseph Clardy, were fishing in Bayou Courtableau in Louisiana. The bayou is a United States flood control project designed to take excess floodwaters from the Bayou Courtableau Basin through the protection levee of the West Atchafalaya Basin. When government employees opened the gates of the structure to full capacity, a strong current resulted. Only two faded signs at the entrance of the drainage structure warned of the dangerous current. The boaters could not see the signs until they had already been swept into the current. The Clardys' boat became disabled and drifted into the inlet channel. As it was drawn through the open gates of the spillway, the boat overturned and Kenneth Clardy was thrown into the approach basin. He drowned while being pulled through a 220-foot-long barrel of the drainage structure.

The district judge entered summary judgment for the government, holding that any negligence was related to the operation of a flood control project and therefore fell within the immunity of section 702c. We reverse the summary judgment.

II. THE IMMUNITY PROVISION AND ITS AMBIGUITIES

The starting point in every case involving construction of a statute is the language itself. The applicable provision of the Mississippi Flood Control Act of 1928 reads:

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: Provided, however, That if in carrying out the purposes of ... this title it shall be found that upon any stretch of the banks of the Mississippi River it is impracticable to construct levees, either because such construction is not economically justified or because such construction would unreasonably restrict the flood channel, and lands in such stretch of the river are subjected to overflow and damage which are not overflowed or damaged by reason of the construction of levees on the opposite banks of the river it shall be the duty of the Secretary of the Army and the Chief of Engineers to institute proceedings on behalf of the United States Government to acquire either the absolute ownership of the lands so subjected to overflow and damage or floodage rights over such lands.

33 U.S.C. Sec. 702c (1982) (emphasis in original). Without a clearly expressed legislative intention to the contrary, statutory language must usually be considered controlling. Escondido Mutual Water Co. v. La Jolla Band of Mission Indians, --- U.S. ----, ----, 104 S.Ct. 2105, 2110, 80 L.Ed.2d 753, 761 (1984). Although we hold the statutory language paramount in this case, we have recourse to the history and purpose of the statute to elucidate what we consider to be latent ambiguities. "Where, as here, resolution of a question of federal law turns on a statute and the intention of Congress, we look first to the statutory language and then to the legislative history if the statutory language is unclear." ² Blum v. Stenson, --- U.S. ----, ----, 104 S.Ct. 1541, 1548, 79 L.Ed.2d 891, 900 (1984). Properly viewed, the language of the statute is perfectly consonant with the legislative history, but we think it essential to understand the latter in order to view the statute itself correctly. ³

We do not see the language of the immunity provision as being clear-cut and unambiguous, ⁴ "however clear the words may appear on 'superficial examination.' " ⁵ United States v. American Trucking Associations Inc., 310 U.S. 534, 544, 60 S.Ct. 1059, 1064, 84 L.Ed. 1345, 1351 (1940) (quoting Helvering v. New York Trust Co., 292 U.S. 455, 465, 54 S.Ct. 806, 809, 78 L.Ed. 1361 (1934)). We do not think, for instance, that it is evident what constitutes a "flood" or "floodwaters." ⁶ Nor is the word "damage" quite unequivocal. ⁷ Nor, indeed, is it clear why "at any place" was tacked on to the sentence, inasmuch as the immunity language is already comprehensive without it. ⁸

Nevertheless, section 702c is understandable and explicable as a statement of the precise issue before Congress: the allocation of costs of the project at hand. The correctness of this explanation of the statutory language is demonstrable on four grounds. First, in the congressional debates "liability" and "damage(s)" were repeatedly used in reference to these costs. Second, the proviso of section 702c--the language immediately following the disclaimer--apportions costs in the event of inundated and overflowed lands due to levees having been impracticable; again, this specific language, inserted by the drafters to clarify the meaning, is concerned with the allocation of costs. Third, the section 702c immunity replaced what in previous versions had been Senate largess; the immunity was a legislative answer on the controversial issue of whether the federal government or other entities would absorb the general costs of the project. And fourth, the legislative history is replete with references to damaged land, strongly suggesting the conclusion that the phrase "at any place" was intended to be read as if it were "to any place," hence the phrase interpreted in full: "damage by floods to any place."

If, however, we make section 702c into a disclaimer of liability for consequential damages of a different nature, we create serious contextual or external ambiguities, and risk construing the statute within its letter, but beyond its intent. ⁹ The statute does not define the nature of the relation between the floodwaters and flood control projects on the one hand, and the activities of the United States on the other. For example, is the government invariably immune from damage attributable to floodwaters? Let us suppose that park personnel negligently divert the course of a stream onto a campground, and subsequently a flood destroys the camp. Would the immunity obtain? Perhaps so, if we ignored all the statutory language other than the one-sentence disclaimer of liability, ignored the legislative history, and ignored the underlying purpose of the statute. ¹⁰ Yet precedent stands against immunity. Graci v. United States, 456 F.2d 20 (5th Cir.1971) (claim not barred where plaintiffs have alleged floodwater damage resulting from governmental negligence unconnected with any flood control project); Peterson v. United...