Stephens v. United States

• Decision Date: 15 May 1979
• Docket Number: No. 77-3050.,77-3050.
• Citation: 472 F. Supp. 998
• Court: U.S. District Court — Central District of Illinois
• Parties: James A. STEPHENS, Plaintiff, v. UNITED STATES of America, Defendant, v. The STATE OF ILLINOIS, Third-Party Defendant.

472 F. Supp. 998

James A. STEPHENS, Plaintiff, v. UNITED STATES of America, Defendant, v. The STATE OF ILLINOIS, Third-Party Defendant.

No. 77-3050.

United States District Court, C. D. Illinois, Springfield Division.

May 15, 1979.

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Anthony P. Corsentino, Sweat & Sweat, Peoria, Ill., William T. Cahill, Richard J. Phelan, Phelan & Pope, Chicago, Ill., for plaintiff.

Sandra Simon, James P. Klapps, Paul Figley, U. S. Dept. of Justice, Tort Section, Civ. Div., Washington, D. C., John Germeraad, Asst. U. S. Atty., Springfield, Ill., William S. Hanley R. Gerald Barris, Sorling, Northrup, Hanna, Cullen & Cochran, Ltd., Springfield, Ill., for State of Illinois, third-party defendant.

MEMORANDUM ORDER

ACKERMAN, District Judge.

I. Introduction

On May 27, 1975, James A. Stephens suffered serious injuries when he dove into Lake Shelbyville from the shore of a cove located in Eagle Creek State Park. After the Department of Army Corps of Engineers denied Stephens' claim under 28 U.S.C. § 2675, he filed a three count complaint against the United States pursuant to the Federal Tort Claims Procedure Act, 28 U.S.C. § 2671 et seq., with jurisdiction premised on 28 U.S.C. § 1346(b).

As will be developed later in this opinion, the land area involved in this suit is owned by the United States and leased to the State of Illinois. Based upon a hold harmless clause in the lease, the United States filed a third party complaint against the State of Illinois for indemnification of the amount of any judgment rendered in favor of James A. Stephens. The Court denied the State of Illinois' motion to dismiss the third party complaint, but allowed a joint motion of the parties to sever the third party action from the trial on issues of liability as raised in the plaintiff's complaint.

A bench trial solely on the issue of liability was held on December 6-8, 11 and 12, 1978. Because the State of Illinois, as third party defendant, may be bound by the result of the trial on liability between plaintiff and defendant, it was permitted to fully participate in the trial and did so. On the eve of trial the United States filed a motion to dismiss, or in the alternative for summary judgment, which raised several substantial legal issues. I elected to take up the motions following the trial and the parties have now fully briefed the legal issues as well as submitting proposed findings of fact. This memorandum order will be entered as my findings of fact and conclusions of law under F.R.Civ.P. 52(a).

Plaintiff's injury occurred when he dove into the water from the shore of a cove and hit his head on what he contends was a submerged tree stump. Stephens received a laceration of the frontal scalp which allegedly resulted in permanent paralysis of his legs and hands (quadriplegia). Proof on the nature, extent and duration of injuries was reserved for the damages portion of the trial should plaintiff prevail on the liability issue. Plaintiff's complaint premises liability of the United States upon three theories: Count I, negligence; Count II, wilful and wanton acts or omissions; and Count III, careless or negligent acts or omissions involving the United States contract with Humphrey Contracting Company to clear the timber from the land in question for creation of Lake Shelbyville. Plaintiff did not introduce any evidence at trial on Count III, apparently abandoned it, and judgment is accordingly entered for the defendant as to that count.

In Count I plaintiff alleges that the Army Corps of Engineers has retained management and control of the swimming areas of Eagle Creek State Park, notwithstanding the lease to the State of Illinois. Agents of the United States are alleged to have been guilty of one or more of the following careless and negligent acts or omissions which proximately caused plaintiff's injuries: (1) failed to remove submerged tree stumps from the swimming areas of Lake Shelbyville, (2) failed to prohibit diving by all persons on all swimming areas of Lake Shelbyville which contained submerged tree stumps, and (3) failed to warn the plaintiff of the existence of the hidden danger of submerged tree stumps in said swimming areas of Lake Shelbyville.

Plaintiff's Count II incorporates the allegations of Count I, realleges the actions and omissions stated as negligence in Count I, and contends they are sufficient to establish wilful and wanton acts or omissions by the United States which proximately caused plaintiff's injuries.

As to Count I, the United States denies any actionable duty owed by defendant to plaintiff, denies committing any negligent acts or omissions, and further contends plaintiff is barred from recovery by either his failure to prove freedom from contributory negligence or by the doctrine of assumption of the risk. It is also contended that the negligence action must be dismissed because the United States is an "individual" covered by the Illinois Recreation Use of Land and Water Areas Act, III.Rev. Stat. ch. 70 §§ 31-37 (1965) and is thus not liable for ordinary negligence.

Defendant contends that both Counts I and II should be dismissed for lack of subject matter jurisdiction because plaintiff's claims are barred by the discretionary function exception of the Federal Tort Claims Procedure Act, 28 U.S.C. § 2680(a). In addition to the jurisdictional objection to Count II, defendant contends that none of its acts or omissions constitute wilful and wanton misconduct. With this view of the legal and factual issues involved, I turn to a detailed discussion of the factual situation relevant to this accident.

II. Facts

The Shelbyville Dam and Reservoir Project was a portion of a multiple-purpose plan of improvements for the Kaskaskia River Basin. Objectives included providing flood control in the Kaskaskia River Valley, providing improved water supply and pollution abatement, and providing minimum pools for recreational use and conservation of fish and wildlife.

Construction of the project was started in May, 1963. The reservoir basin contained forested areas which were cleared prior to impoundment of water behind the dam. The area of the cove where the accident occurred was cleared by Humphrey Contracting Corporation pursuant to a contract with the United States Army Corps of Engineers. Section 2 of that contract dealt with timber clearing and Paragraph 4 of that section reads as follows:

4. Clearing Requirements — All trees, brush, other growth and down timber within the clearing limits and silt ranges shall be cut to a height not to exceed six (6) inches from the ground surface as measured on the uphill side. Clearing of submerged down timber from lakes and ponds will not be required.

This Paragraph 4 is based upon a Guide Specification for Clearing issued by the Department of the Army Corps of Engineers, Office of the Chief of Engineers. Paragraph 1-06(c) of that Guide Specification provides: "All trees and stumps, not falling within the classification of brush, shall be removed to a height not exceeding six (6) inches above the ground surface measured on the uphill side."

There was no evidence presented which established the rationale for not removing the trees entirely or not cutting them all level to the ground. The contractor used bulldozers with cutting blades attached and chainsaw crews for the clearing of trees. As to those trees which were cut nothing would indicate that the contractor failed to meet or exceed the 6" height requirement. Clearing occurred up to approximately elevation 603 and was completed in 1968.

Following construction of the reservoir, water was impounded by the Shelbyville Dam in the summer of 1970. The artificial lake formed is called Lake Shelbyville which during normal pool elevations (599 feet above sea level) is approximately 11,000 acres in size, approximately twenty miles long, and has approximately 172 miles of shoreline. The Army Corps of Engineers controls the water level of Lake Shelbyville by operation of the dam.

The lease agreement between the Corps of Engineers and the Illinois Department of Conservation applicable to Eagle Creek State Park requires the State to comply with all regulations and rules promulgated by the Corps for Lake Shelbyville, including the "Project Safety Plan," "Project Resources Management Plan," and the "Master Plan," and further requires Corps approval for all fees charged the public by the State.

The Corps of Engineers employs reservoir rangers whose primary responsibilities include assisting the using public, patrolling all project recreation areas, and inspecting all Government lands. Land inspections are performed by rangers on a regularly scheduled basis and include all Government land and all outgranted land. Eagle Creek State Park is an area of outgranted land which was inspected by the rangers. Both the water areas and land areas in Eagle Creek State Park were inspected on a regular basis from 1973 through 1975 by three different Corps rangers. The inspections were to determine whether the State was in compliance with safety regulations and plans promulgated by the Army Corps of Engineers. Included in the inspections were observation of visitor water and land safety hazards. They also checked to see whether bulletin boards were placed in conspicuous locations throughout the recreation area and posted with safety-oriented material; and whether warning signs, barricades, fences, etc., were utilized to warn visitors of dangerous areas and prevent access where necessary.

The State of Illinois employed Department of Conversation rangers to patrol Eagle Creek State Park on a regular basis. Their duties included inspections to assure the park rules and regulations were complied with and assisting the public. It appears that the patrols were primarily of the land areas of the park and the state rangers were rarely on Lake Shelbyville except perhaps around the boat launch area.

There can...