Kennedy v. Texas Utilities
| Decision Date | 21 June 1999 |
| Docket Number | No. 98-10685.,98-10685. |
| Citation | 179 F.3d 258 |
| Parties | Janice Lynn KENNEDY, Plaintiff-Appellant, v. TEXAS UTILITIES, a Texas company; City of Grand Prairie, Texas, and United States of America, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Kent Frank Brooks, Dallas, TX, for Plaintiff-Appellant.
Jeffrey S. McFall, Cantey & Hanger, Estil A. Vance, Jr., Fort Worth, TX, for Texas Utilities.
Daniel L. Bates, Decker, Jones, McMackin, McClane, Hall & Bates, Fort Worth, TX, for City of Grand Prairie, TX.
William J. Anderson, Fort Worth, TX, for U.S.
Before REAVLEY, JOLLY and EMILIO M. GARZA, Circuit Judges.
In this personal injury suit, the district court granted summary judgment in favor of the United States, finding it immune from suit under the immunity provision of the Flood Control Act of 1928,1 and remanded the remaining state law claims to state court. We reverse.
Plaintiff Janice Kennedy was injured at Lynn Creek Park when she stepped on a live electrical cable on or about August 28, 1993. The park is within the city limits of defendant City of Grand Prairie, Texas (City). The land on which the park is located was purchased by the United States "for navigation, flood control and other purposes" under the River and Harbor Act of 1965,2 for the construction of Joe Pool Lake, also known as Lakeview Lake (the lake). The statute specified that Lakeview project would comply with the recommendations of a March 14, 1963 letter prepared by the Board of Engineers for Rivers and Harbors of the U.S. Army Corps of Engineers (Corps).3 The letter describes the Lakeview project as a "multiple-purpose" reservoir, and describes those purposes as including flood control, water storage, and recreation.
Hence, the Corps envisioned recreational development from the outset of the Lakeview project. A 1976 contract between the United States and defendant Trinity River Authority (TRA) for recreational development of the lake recites that the United States "agrees to design, construct, and operate the Project to provide for optimum enhancement of general recreation consistent with the other authorized Project purposes." Under this contract the United States and the TRA, an agency of the State of Texas, would share the costs of recreational development, and the United States agreed to lease the property comprising the Lakeview project to the TRA. The contract provides that the TRA "shall be responsible for operation, maintenance, and replacement, without cost to the United States, of all facilities developed to support Project recreation opportunities." A separate lease agreement between the United States and the TRA provides that the TRA as lessee "agrees to administer the land and water areas included in the lease for recreation purposes and to bear the costs of operation, maintenance, and replacement of all facilities and improvements on the premises at the commencement of this lease or added during its term."
The United States also entered into a contract with the TRA for water storage space. Under this contract, the TRA was granted an undivided 100 percent interest of the total storage space of the lake below an elevation of 522 feet. The TRA agreed to repay the United States an amount representing that portion of the total project cost allocated to the water storage right acquired by the TRA.
In addition to the statutory mandate to construct the lake for flood control, the record shows that the lake was built and its water level regulated for flood control purposes, in conjunction with other flood control facilities in the Trinity River basin. The Corps monitors the water level in the lake daily as part of its flood control operations. The lake is designed and operated to store water for conservation and water supply up to an elevation of 522 feet. The Corps refers to the lake as a conservation storage pool up to this elevation. On the date of Kennedy's injury the lake elevation was about 521 feet. The lake is also designed to store water up to an elevation of 536 feet for flood control purposes during periods of above average inflows, and frequently stores water at an elevation above 522 feet. The Corps designates the lake as a flood storage pool at elevations between 522 and 536 feet. The United States offered evidence that the Corps originally purchased land up to an elevation of 541 feet for flood control purposes. The United States thus showed that the flood control function of the project determined the boundaries of the property it purchased for the Lakeview project. It also showed that the highest recorded elevation of the lake is 533 feet, and that the electrical line which injured Kennedy is sometimes submerged by the lake. Hence, the evidence indicates that Kennedy was injured on land purchased by the United States for flood control, water storage, and recreational purposes, under lease to the TRA for recreational purposes, and which is sometimes covered with flood waters.
The injury occurred on a sandy beach area near the lake. Kennedy had entered the park as a paid visitor. In interrogatory answers she attested that she visited the park "for the purpose of recreational swimming with friends," and she later testified in her deposition that "we went out there just to, you know, try to get a tan and hang out at the lake." She stepped on the electrical line after either going for a swim, or wading and submerging herself in the water. Kennedy offered evidence that the line was part of an electrical system at the park that had been installed after discussions among the City, defendant Texas Utilities Electric Co. (Texas Utilities), and the TRA, regarding the need for a power source at the park for recreational purposes such as concerts. The evidence is undisputed that the line was not installed by the United States, and was not used in connection with flood control. The line was placed in the park after the park property was leased to the TRA.
Kennedy brought suit in state court against the City, the TRA, and Texas Utilities, asserting state law negligence claims. She amended her state court petition to add a claim against the United States under the Federal Tort Claims Act (FTCA).4 The United States removed the case to federal court.5 In her last amended complaint, Kennedy alleged several theories of premises and negligence liability against the United States.6 The United States filed a motion to dismiss or in the alternative for summary judgment, asserting immunity from suit under the Flood Control Act and other grounds for summary judgment. The district court granted summary judgment for the United States on grounds of immunity. Thereafter, the City of Grand Prairie filed a motion to remand the remaining state law claims to state court. The district court granted this motion.
Kennedy contends that the district court erred in ruling that the United States is immune from suit under the Flood Control Act. We agree for the reason that the summary judgment evidence established as a matter of law that the United States is not immune.
"The starting point for interpreting a statute is the language of the statute itself."7 We have explained that "we follow the plain meaning of a statute unless it would lead to a result so bizarre that Congress could not have intended it."8 Absent congressional direction to the contrary, words in statutes are to be construed according to "their ordinary, contemporary, common meanings."9
The immunity provision of the Flood Control Act (hereinafter Act), 33 U.S.C. § 702c, states: "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." The plain wording of the statute is confined to damages sustained "from or by floods or flood waters at any place." Kennedy was injured on dry land adjacent to a lake constructed for flood control and other purposes. While the term "flood waters" may be ambiguous and thus subject to differing interpretations, the ordinary and common meaning of an injury or damages sustained "from or by floods or flood waters" does not, in our view, extend to an injury occurring on land apart from water and as the result of a use of the land itself.
The parties properly focus much of their argument on two cases, the Supreme Court's decision in United States v. James,10 and our decision in Boudreau v. United States.11 We cannot agree with Kennedy that § 702c immunity is limited to federal water projects devoted exclusively to flood control, in contrast to a multi-purpose project such as Joe Pool lake. In James, the Court found that § 702c immunity applied even though one of the reservoir projects in issue was "used for fishing, swimming, boating, and waterskiing," and the government promoted recreational use.12 In Boudreau, we noted that federal law authorizes the Corps to "construct, maintain, and operate public park and recreational facilities" at flood control projects.13 In both cases the injuries were sustained by persons who were on the water for recreational purposes. We agree with the Ninth Circuit that § 702c immunity is not rendered inapplicable 14
Nevertheless, neither James nor Boudreau, in our view, supports governmental immunity on these facts. In James, the Court ruled that the immunity provision covered two cases "where recreational users of reservoirs were swept through retaining structures when those structures were opened to release waters in order to control flooding."15 The reservoirs were federal flood control projects, and the accidents occurred when the...
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