Marcum v. United States

• Decision Date: 30 November 1971
• Docket Number: No. 71-1966.,71-1966.
• Parties: R. C. (Buck) MARCUM, the father of Marcus Marcum, a deceased minor, Plaintiff-Appellant, v. UNITED STATES of America, U. S. Corps of Engineers, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

452 F.2d 36 (1971)

R. C. (Buck) MARCUM, the father of Marcus Marcum, a deceased minor, Plaintiff-Appellant, v. UNITED STATES of America, U. S. Corps of Engineers, et al., Defendants-Appellees.

No. 71-1966.

United States Court of Appeals, Fifth Circuit.

November 30, 1971.

Francis H. Hare, Jr., Hare, Wynn, Newell & Newton, Birmingham, Ala., for plaintiff-appellant.

Wayman G. Sherrer, U. S. Atty., B. Don Hale, Asst. U. S. Atty., Birmingham, Ala., Thomas L. Jones, Atty., Admiralty & Shipping Section, Dept. of Justice, Morton Hollander, Chief, Appellate Section-Civil Div., Walter H. Fleischer, Robert M. Feinson, Dept. of Justice, Washington, D. C., L. Patrick Gray, III, Asst. Atty. Gen., for defendants-appellees.

Before BELL, AINSWORTH, and GODBOLD, Circuit Judges.

AINSWORTH, Circuit Judge:

On June 14, 1966, appellant's 16-year-old son, Marcus Marcum, drowned in Lock 13 which was maintained by the United States Corps of Engineers, and located on the Black Warrior River near Tuscaloosa, Alabama. Plaintiff brought suit against the United States alleging negligence and wanton misconduct in allowing a certain valve to remain open in the Lock, thereby creating a dangerous undercurrent beneath the calm surface of the water; and further, in removing protective guard rails and fences and generally failing to warn of the dangerous condition. Suit was brought under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2674, and as an action arising on navigable waters. The conduct said to give rise to liability in an action for wrongful death in state territorial waters where the state gives such a right of action, as does Alabama is to be measured under the substantive standards of the state law. Hess v. United States, 361 U.S. 314, 319, 80 S.Ct. 341, 345, 4 L.Ed.2d 305 (1960). We, therefore, look to Alabama for the applicable substantive law. The District Court, sitting without a jury, found that the drowning was not the proximate result of any negligence on the part of defendant and entered its judgment accordingly.

The issue before us is whether the findings of the trial court are clearly erroneous. Appellant also urges that the court erred as a matter of law in misapplying the rule of proximate cause.

Plaintiff had employed his son and five other teenage boys to assist him in removing houses from the property adjacent to Lock 13, which structures had been formerly occupied by personnel which staffed the Lock. Several locks, including Lock 13, were to be flooded in conjunction with the completion of a new lock down the river. On the day of the unfortunate incident, Lock 13 had been partially dismantled and was filled with approximately 20 feet of water. Operation of the Lock had been discontinued several days prior to that date, and guard rails and a fence enclosure had been removed. There was no around-the-clock inspection of the area; however, inspection was made by Government personnel two or three times daily. No Government personnel was present at the time of the drowning. Young Marcum and several teenage companions had been diving and swimming back and forth across the Lock chamber several times when all of the boys, except Marcum, got out of the Lock to smoke cigarettes. Sonny Freeman was the last of the boys to leave. At the time he observed Marcum holding on to a ladder on the wall of the Lock. A few minutes later the group returned to find Marcum partially under the water, his head face down, and drifting toward the open valve. When Marcum failed to respond to the boys' calls, Sonny Freeman jumped into the Lock pit in an attempt to pull Marcum to safety, but because of an alleged strong current he was forced to abandon his efforts after coming within a foot or two of him. A volunteer rescue unit was notified, and Robert Delbridge, a member thereof who is also a commercial diver, along with other members of the unit, proceeded to the Lock. Delbridge testified that when he arrived at the Lock he was told by the boys that the body was...