Reed v. United States, Civ. No. F 81-164.

• Decision Date: 16 March 1984
• Docket Number: Civ. No. F 81-164.
• Citation: 604 F. Supp. 1253
• Parties: Michael REED, Plaintiff, v. UNITED STATES of America; and Department of the Army, Defendants.
• Court: U.S. District Court — Northern District of Indiana

604 F. Supp. 1253

Michael REED, Plaintiff, v. UNITED STATES of America; and Department of the Army, Defendants.

Civ. No. F 81-164.

United States District Court, N.D. Indiana, Fort Wayne Division.

March 16, 1984.

COPYRIGHT MATERIAL OMITTED

John F. Lyons and James P. Fenton; Barrett, Barrett & McNagny, Fort Wayne, Ind., for plaintiff.

David H. Miller, Asst. U.S. Atty., Fort Wayne, Ind., Jennifer Payton, Asst. Dist. Counsel, Dept. of the Army, Louisville, Ky., for defendants.

ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court on defendant, United States of America, Corps of Engineers', May 24, 1983 "Motion for Summary Judgment." Plaintiff responded to that motion on August 4, 1983 whereupon defendant United States filed its reply on August 31, 1983. A supplemental response to defendant's motion for summary judgment was filed by plaintiff on November 2, 1983. For the reasons set forth below, defendant's motion for summary judgment will be granted.

Facts

Taken in the light most favorable to the non-moving party (here plaintiff) and accepting the allegations as true, see e.g. Barbian v. Panagis, 694 F.2d 476, 478 (7th Cir.1982), the relevant facts are as follows.

Plaintiff, Michael Reed, was severely injured in a mishap at the Huntington Reservoir on July 2, 1979. On that date, Gary Collins, a friend of plaintiff, asked the plaintiff to go water skiing. They met two other friends, Dave Waldon and Dan Hicks, at the Huntington Reservoir. The four men launched a seventeen-foot aluminum motor boat belonging to Waldon and Collins from the Kilsoquah boat ramp between 5:30 and 6:00 p.m.

Collins drove the boat out of the idle zone, whereupon plaintiff began to pilot the boat. Plaintiff drove around for approximately five minutes in order to warm up the engine. At about this time a discussion ensued among the occupants of the boat as to who would go ashore since the boat was not powerful enough to pull a skier with three persons aboard. By this time, plaintiff had shut off the boat motor, and the boat was then about forty feet from shore. After the boat drifted to a point approximately thirty feet from shore, plaintiff announced that he would be the one to go ashore.

Plaintiff dove from the boat into the water, the result of which proved tragic. Upon diving into the water plaintiff's head struck a gravel-sand bar and he was immediately paralyzed. Plaintiff's companions immediately noticed his difficulty and rescued him from drowning. Plaintiff was placed back in the boat and taken to the Kilsoquah boat ramp where an emergency vehicle was summoned. Despite treatment, the plaintiff has never recovered movement below his armpits, nor does he have any movement in his fingers.

The Huntington Reservoir was constructed pursuant to the Flood Control Act of 1958, Title II of Public Law No. 85-500, under the supervision of the United States Army Corps of Engineers. The Corps of Engineers acquired over eight thousand acres of real estate near Huntington, Indiana for the purpose of constructing a flood control pool, public use facilities and wildlife management areas. Though flood control was the primary purpose of the construction of the Huntington Reservoir, recreational use was also an intended benefit including boating, fishing, swimming, and water skiing. It was estimated that within five years of project completion, two hundred twenty-five thousand annual visitors could be expected to attend the Reservoir and that an ultimate visitation of eight hundred seventy thousand was expected within fifty years of the project completion.

The Reservoir area was cleared pursuant to a contract dated June 26, 1968 between the Army Corps of Engineers and the Applachian Contracting Company. Applachian Contracting Company was to remove the Meridian Road bridge which crossed the Wabash River. It is alleged that Applachian failed to remove a significant portion of the roadway south of the actual bridge structure. The earthen embankment which led up to the bridge was left intact since it was considered a part of the terrain and not a structure as defined in the Corps of Engineers guide specifications.

Almost all of the Huntington Lake project area was leased to the State of Indiana, Department of Natural Resources, on July 1, 1973 under a long-term lease which was to end June 30, 2013. Under the terms of the lease, the lessee was required to administer and maintain the premises in accordance with the Corps of Engineers "Master Plan" and general development plan. A Project Safety Plan and a Project Resource Management Plan were made a part of the Master Plan and were applicable to the Huntington Lake project. The Huntington Reservoir was formally opened up to the public in the spring of 1971.

As things turned out, the water over the Meridian Road embankment is, at points, deceptively shallow. At the point where plaintiff exited the boat, the water was approximately two feet deep. Because the water was murky, plaintiff was unable to discover the presence of the embankment. Other parts of the area, which are also approximately thirty feet from the shore, are quite deep.

Prior to the accident, plaintiff had only been to the Huntington Reservoir area to water ski on two occasions in 1978 and on three or four occasions in 1979. He had never skied in the area in 1978 where the accident occurred, and on one occasion in June of 1979, he dove out of a boat on the south side of the Reservoir near the east end about thirty to forty feet from shore and was able to swim to shore since the water was deep. Plaintiff had observed people swimming at various points around the Reservoir, as well as around boats. Plaintiff alleges that he had never seen any signs prohibiting swimming though it appears that a "No Swimming" sign was placed by the State of Indiana at the Kilsoquah boat ramp, as well as a sign posted by the Corps of Engineers which indicated that boaters were to obey certain regulations. Notwithstanding these admonitions, plaintiff asserts that he had no idea nor any knowledge that the old Meridian Road bed and embankments went through the Reservoir under the water.

As indicated, plaintiff had been invited to go water skiing by Gary Collins. Either Collins, and/or Waldon, had paid $5.00 for an annual permit allowing them to launch their boat at the Kilsoquah boat ramp earlier in the year.

Based upon the foregoing, the defendant United States of America, Army Corps of Engineers, has moved for summary judgment notwithstanding the tragic events which led to plaintiff's condition.

Discussion and Legal Analysis

Plaintiff's amended complaint as it relates to the defendant United States¹ alleges a cause of action under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., with jurisdiction invoked pursuant to 28 U.S.C. § 1346. In Count V, plaintiff also asserts that this court has admiralty and maritime jurisdiction pursuant to 28 U.S.C. § 1333.

With respect to the Federal Tort Claims Act allegations, the United States is liable for injury under circumstances "where the United States, if a private person would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. §§ 1346(b), 2674. In this case, since the accident occurred in Indiana, the applicable law with respect to the Federal Tort Claims Act allegation is that of the State of Indiana. See Davis v. United States, 716 F.2d 418, 423 (7th Cir. 1983). As for the admiralty claim, 28 U.S.C. § 1333(1) gives federal district courts exclusive jurisdiction over "any civil case of admiralty or maritime jurisdiction." 28 U.S.C. § 1333(1); see Foremost Insurance Co. v. Richardson, 457 U.S. 668, 102 S.Ct. 2654, 2656, 73 L.Ed.2d 300 (1982).

While certain substantive claims in this case are governed by Indiana law, and general federal law governs the admiralty claim, the procedural aspects are, of course, governed by federal law. Rule 56(c) of the Federal Rules of Civil Procedure provides that:

"the judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

Fed.R.Civ.P. 56(c). The burden of proof is, of course, on the party moving for summary judgment and consequently all reasonable inferences as to the existence of a genuine issue of a material fact are drawn in favor of the non-moving party. Peoples Outfitting Co. v. General Electric Credit Corp., 549 F.2d 42 (7th Cir.1977); Kennett-Murray Corp. v. Bone, 622 F.2d 887 (5th Cir.1980); generally C. Wright, Law of Federal Courts, 493-5 (3d ed. 1976). Further, "in order to avoid the grant of summary judgment, a party must demonstrate both the existence of a material fact and a genuine issue as to that material fact." Kennett-Murray, supra, at 892.

Taking the foregoing principles together, it can be said that the proper scope of inquiry under Rule 56 requires the answering of two essential questions: "First, is there any genuine issue as to any material fact? Second, if there is no genuine issue of fact, then, viewing the evidence and the inferences which may be drawn therefrom in the light most favorable to the adverse party, is the movant entitled to prevail as a matter of law?" Radobenko v. Automated Equipment Corp., 520 F.2d 540 (9th Cir.1975).

Utilizing the above considerations, this court is of the view that the factual disputes, if any, do not relate to a material issue and that the defendant is entitled to prevail as a matter of law. This conclusion is based upon this court's agreement with defendant that plaintiff's cause of action against it based upon the Federal Tort Claims Act is barred by Indiana law. Further, the court is of the view that it has no jurisdiction over the alleged admiralty claim. Under separate headings, the...