United States v. Cline

Decision Date02 May 1969
Docket NumberNo. 22725.,22725.
Citation410 F.2d 1337
PartiesUNITED STATES of America, Appellant, v. Margaret Elizabeth CLINE, as surviving wife of Robert Herrick Cline, Deceased; Platt Cline, as Guardian of the Estates of Robert Herrick Cline, II, and Kelly Michael Cline, Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Carl Eardley (argued), Asst. U. S. Atty., Edward E. Davis, U. S. Atty., Phoenix, Ariz., Edwin L. Weisl, Jr., Asst. Atty. Gen., Morton Hollander, Atty., Dept. of Justice, Washington, D. C., for appellant.

Harry Mangum (argued), of Mangum, Wall & Stoops, Flagstaff, Ariz., for appellees.

Before JERTBERG, DUNIWAY and CARTER, Circuit Judges.

JERTBERG, Circuit Judge:

Before us is an appeal from a judgment against the United States in the amount of $389,390.15, and in favor of the surviving wife and the guardian of the estates of two minor children of Robert Herrick Cline, deceased, arising out of the death of Cline, by drowning, proximately caused by the negligence of employees of the United States.

Jurisdiction of the District Court is conferred by the Federal Tort Claims Act, 28 U.S.C. § 1346, and this Court has jurisdiction under 28 U.S.C. §§ 1291 and 1294.

Undisputed facts preliminary to the tragic drowning of Cline on September 1, 1965, may be summarized as follows:

The drowning occurred in water reservoir No. 1, approximately six acres in size, located on the Navajo Army Depot, a United States military installation in Coconino County, Arizona. The reservoir was infested with a heavy growth of weeds. Efforts to eradicate the weeds by the use of a weed cutter affixed to a raft proved unsuccessful, so in the latter part of August, 1965, the Government engaged the services of the Magna Corporation of California to eradicate the weeds through the use of chemical solutions designed for such purposes.

While one Giles, an employee of the Magna Corporation, and one McKissick, an employee of the Depot, were transporting two metal tanks containing the chemical solutions on the weed-cutter raft to a point in the reservoir where the application of the chemical solutions was to be made, the tanks slipped, the raft capsized, and the tanks sank to the bottom of the reservoir, a depth of approximately twenty feet. Subsequently a plastic bottle was anchored as a marker buoy in the area where the tanks sank. Officials of the Depot concluded to secure the services of a diver to locate the tanks and to fasten a line to them so that they might be raised and returned to shore.

At the time of the sinking of the tanks, and for a period of several years prior thereto, the Sheriff of Coconino County maintained a rescue unit composed of volunteers who aided the Sheriff in his effort to recover victims of drowning accidents. The Sheriff had acquired scuba divers' equipment consisting of wet-suits, flippers, air tanks, masks, helmets, weight belts and related accessories. The members of the Unit were volunteers of varying experience as scuba divers. Among the volunteers of the Unit was Cline, who had been a member of the Unit for several years. Cline was a newspaper employee, and scuba diving was an avocation of Cline's.

On reaching the conclusion that the services of a diver should be secured, Depot officials contacted the Sheriff of Coconino County. They were advised by the Sheriff that his regular diver was not available but that the services of Cline might be secured. After discussions with Cline concerning the problem, Cline agreed to undertake the assignment for $25.00.

The events occurring on the date of Cline's drowning, substantially derived from the "Statement of Facts" prepared by the district court, and in the light most favorable to support the judgment, may be summarized as follows:

Cline, accompanied by his wife and two children, arrived at the reservoir site about 2:00 p. m., on September 1, 1965, with the scuba diving equipment borrowed from the County Sheriff, which consisted of a wet-suit, two oxygen tanks, a face mask, and other equipment.

The officials of the Depot furnished: Two row boats which were lashed together to make up a landing platform from which the diver could operate;1 an anchor; an anchor line; a rope safety line some thirty to forty feet long; and two vest-type life preservers.

On the platform to assist Cline was Giles, the employee of the Magna Corporation, and Depot employee, McKissick. Cline, Giles and McKissick embarked in the lashed boats, with McKissick operating the outboard motor. McKissick was experienced in handling motor boats, but had had no experience in operating two boats lashed together. McKissick maneuvered the platform to the general area where the tanks were thought to be located, marked by the plastic bottle buoy. When the platform arrived at its destination, a strong wind was blowing, and McKissick anchored the platform downwind from the bottle buoy. Cline thereupon completed equipping himself with the scuba diving equipment borrowed from the Sheriff and made two shallow, semi-circular passes over the general area, resting at the platform at the conclusion of each dive. The record is inconclusive as to whether Cline used the rope safety line on the first two passes. The wind continued to blow briskly. The temperature of the water was approximately forty-three degrees.

On the third dive, Cline rejected the use of the safety line. Shortly after submerging Cline suddenly surfaced at a point twenty to thirty feet from the platform and called to the occupants that he was in trouble. Giles thereupon dove into the water, without the safety line, and swam to the aid of Cline. McKissick weighed anchor and the platform drifted with the wind. McKissick started the outboard motor and attempted to maneuver the platform upwind, closer to Cline and Giles. As he approached the two in the water, McKissick cut the motor off and attempted to throw a safety line toward Cline and Giles but the wind interfered. The platform started to drift away. McKissick again started the motor and attempted to maneuver the platform closer to the two men in the water. McKissick then threw his own life jacket toward them, and again the wind interfered, and the platform continued to drift. By this time Giles was becoming exhausted holding Cline afloat. Giles released Cline, who sank into the water, and Giles struggled toward the platform where he was assisted upon it by McKissick.

Another Depot employee by the name of Patterson, who was on the shore along with other Depot employees and spectators some fifty or sixty feet away from the diving operations, swam out to the general vicinity of the place where Cline disappeared. He was able to grasp the safety rope which was trailing from the platform, and attempted to reach the spot where Cline sank, which spot was marked by large rolling bubbles ascending to the surface. The platform continued to drift and Patterson became exhausted trying to stay afloat, and to hold the safety line, but he was able to pull himself to the platform but could not climb on it. He was taken to shore by being pulled along adjacent to the platform.

McKissick returned with another Depot employee on the platform, to the same area, and both dove for Cline without success. Cline's body was recovered later the same evening through grappling and diving operations.

The autopsy revealed that Cline's death was caused by asphyxiation, due to drowning.

In its formal findings of fact the district court, inter alia, found:

(a) That for a consideration of $25.00, Cline agreed to perform the services of a scuba diver in the recovery of the two submerged tanks;

(b) Cline provided the scuba diving equipment necessary to the operation, which he had secured from the Coconino County Sheriff;

(c) Cline was not an "expert" nor experienced scuba diver;

(d) The Depot officials made no thorough inquiry as to Cline's qualifications as a scuba diver;

(e) That Depot officials recognized Cline to have been in a position of peril in the water, and attempted to rescue Cline;

(f) That Cline drowned in the course of his attempts to locate the two submerged tanks;

(g) That the Depot furnished all of the equipment used in the diving operations, except the scuba diving equipment furnished by Cline, and furnished the personnel to assist Cline in the operation; and

(h) That the Depot officials retained, or assumed, the direction, control and supervision of the recovery operations.

In its conclusions of law the district court concluded, inter alia:

(a) Cline was an independent contractor, with Navajo Army Ordnance Depot as contractee;

(b) That the contractee owed a duty to Cline to exercise reasonable care in the supervision and control of the work in which Cline was engaged;

(c) That the contractee was negligent in assuming Cline was an "expert" or experienced scuba diver, without inquiry as to his experience and expertise;

(d) That the equipment furnished by the contractee was neither safe nor adequate;

(e) That the personnel furnished by the contractee, to assist Cline in the diving operations, were incompetent to perform the duties assigned to them and when they observed Cline to be in a position of peril, they were negligent in undertaking such assistance; and

(f) That Cline was not negligent in the conduct of his maneuvers, and that Cline was not negligent in failing to use the inadequate safety line through murky, weed infested waters.

Appellant's specification of errors is:

(1) That the court erred in finding:
(a) That Cline was an amateur scuba diver, and that the Depot was negligent in providing men and equipment to help Cline and that this negligence caused Cline\'s death;
(b) That the Depot was negligent in attempting the rescue;
(c) That Cline was not negligent in the conduct of his maneuvers.

(2) That the award of damages was excessive.

Before further discussion we shall consider the relevant law of Arizona applicable, or conceivably applicable, to the facts and...

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