Ward v. United States

• Decision Date: 30 June 1962
• Docket Number: Civ. A. No. 7083.
• Citation: 208 F. Supp. 118
• Parties: Clifford F. WARD and Elna Ward, Plaintiffs, v. The UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Colorado

208 F. Supp. 118

Clifford F. WARD and Elna Ward, Plaintiffs, v. The UNITED STATES of America, Defendant.

Civ. A. No. 7083.

United States District Court D. Colorado.

June 30, 1962.

Truman C. Englehardt, Atty. at Law, Denver, Colo., for plaintiffs.

Merle R. Knous, Asst. U. S. Atty., for District of Colorado, Denver, Colo., for defendant.

ARRAJ, Chief Judge.

This is an action brought by plaintiffs for the alleged wrongful death of their minor daughter. Jurisdiction is based on Chapter 171 of Title 28 U.S.C. and on Section 1346(b).

On June 7, 1959, defendant owned the recreation area at Lake Hasty near the John Martin Dam in Bent County, Colorado. Defendant had leased the area to the Southeastern Colorado Recreation Association. A part of Lake Hasty was used as a swimming pool; defendant had constructed a diving pier adjacent to the pool. The public was invited to use the pool for swimming and signs inviting the general public to use the swimming facilities were erected and maintained by defendant; such signs bore the insignia of the Corps of Engineers. On Sunday afternoon, June 7, 1950, Esther Ruth Ward, the then sixteen year old daughter of plaintiffs, was swimming and playing in the swimming pool area and was then and there drowned. Immediately prior thereto, some young boys, whose identities were not known or disclosed, had been "ducking" Esther and apparently after one such ducking she did not return to the surface. At the time of the incident, there was no lifeguard on duty to supervise the activities of the swimmers or to rescue any one in danger of drowning in the pool. Shortly after the disappearance of Esther a woman who had been watching the children playing alerted those in the vicinity, and soon thereafter some young men commenced diving and searching for the body of Esther; and after several minutes the body was discovered at the bottom of the pool. It was brought to the surface and several unsuccessful attempts to revive the decedent were made by means of artificial respiration and resuscitation. At the time of the incident, the resident engineer and assistant resident engineer, both employees of defendant, were in the main dock area of the reservoir supervising the launching of pleasure boats and issuing permits for the boats to be on the reservoir.

Just prior to her death, plaintiffs' daughter had completed the eleventh grade in high school. She was a normal girl, in good physical and mental health. She possessed a good, untrained singing voice and at times assisted her father, an evangelist, in the musical phase of his evangelical work. She was obedient, industrious and friendly. Decedent's father's primary occupation was that of an evangelist and preacher of the gospel; her mother's primary occupation was that of a housewife. There were four younger children, three of whom are still in the home. The father's annual income was approximately three thousand dollars. Both he and his wife were thirty-seven years old at the time of their daughter's death.

Plaintiffs claim for relief is based on the provisions of Chapter 41, Article 1, C.R.S. 1953 As Amended. This is the wrongful death statute and the maximum recovery thereunder is twenty-five thousand dollars. Plaintiffs claim damages in the amount of sixty thousand dollars and assert that the provisions of the statute limiting the recovery to twenty-five thousand dollars was unconstitutional. Prior to trial the Court held that it was not.

Plaintiffs contend that defendant was negligent in failing to provide a lifeguard at the pool to supervise the activities of the persons using the pool and to aid swimmers in distress. In essence, the defendant has questioned its capacity to be sued, has asserted that an unavoidable accident was involved, has denied that its negligence, if any, was the proximate cause of the drowning, and, finally, has maintained that as lessor of the premises, it was released from all liability for personal injuries sustained on the demised premises.

As a preliminary matter, the Government has brought into focus the question of its capacity to be sued for the acts complained of in this action under the Federal Tort Claims Act. In this regard Gilroy v. United States, D.C.D.C. 1953, 112 F.Supp. 664, and Williams v. City of Longmont, 109 Colo. 567, 129 P.2d 110, 142 A.L.R. 1337 (1942), appear to be cited for the proposition that the supervision of public swimming facilities is a "governmental" function for which no action will lie against a municipality, in which capacity the defendant herein seems to assert that it was acting.

In Gilroy the United States was sued for breaching its duty to properly maintain curbing on the streets of the City of Washington. Judge Holtzoff, in choosing a broad basis of liability under the substantive law of the jurisdiction in which the Court was sitting, construed the amenability of the United States to suit "as a private individual" to include actions against the Government in the capacity of a municipal corporation.

Some confusion seems to exist in Colorado insofar as the characterization which governs the functions of a municipality that has failed to provide a lifeguard for its swimming facilities. Compare City of Longmont v. Swearingen, 81 Colo. 246, 254 P. 1000 (1927), with Williams v. City of Longmont, supra. However, the position of the Colorado courts on this point is not determinative here, for it appears that the Federal Tort Claims Act contemplates the granting of relief against the United States in many situations which, if a municipal corporation were involved, would find the Government engaged in activities which could be characterized as "governmental". For example, in Dye v. United States, 6 Cir., 1954, 210 F.2d 123, recovery was permitted against the United States under the Federal Tort Claims Act for the deaths of two boat occupants which resulted from the Government's negligent failure to use protective measures and to give adequate warning of dangerous conditions while acting in the capacity of operator of a dam. With regard to the scope of the Government's liability under the Act, the Court stated at 210 F.2d on page 128:

"The Supreme Court, in United States v. Yellow Cab Co., 340 U.S. 543, 547, 550, 71 S.Ct. 399, 95 L.Ed. 523, said that the Federal Tort Claims Act, in sweeping language, waives in favor of an injured person the government's immunity from suit; and that the general trend toward increasing the scope of the waiver by the United States of its sovereign immunity from suit is inconsistent with whittling it down by refinements. In Spelar v. United States, 2 Cir., 171 F.2d 208, 209, 70 S.Ct. 10, 94 L.Ed. 3 it was held that the policy of governmental generosity toward tort claimants established by the Federal Tort Claims Act should not be set aside or hampered by a niggardly construction, particularly with respect to the broad terms of coverage."

This Court concludes, therefore, that the United States may only assume the legal characteristics of a municipal corporation in actions brought against it under the Federal Tort Claims Act when the activities in issue are those normally performed by a municipal corporation, which, as in Dye, is engaged in the execution of specifically authorized duties incidental to the regulation and administration of the local affairs of an incorporated area for the benefit of the local community. See Rhyne, Municipal Law, Section 1-2 (1957); 1 McQuillan, Municipal Corporations, Section 2.07 (3 ed. 1949). Since the authority and the activities of the Government in the instant case were not directed primarily toward the local affairs of any given community, the legal concepts governing the liability of municipal corporations are not available to it; hence, for the purposes of this case, the United States has acted in the capacity of a private proprietor.

The defendant has alleged that the drowning was the result of an unavoidable accident for which it could not be held responsible, thereby indicating that its failure to provide a lifeguard could not constitute negligence. However, Colorado law does not seem to support this position, for in the Swearingen case the Colorado court declared at 81 Colo. on page 251, 254 P. on page 1002:

"That the absence of a life guard, in the circumstances shown here, may be negligence, cannot well be disputed, and we think is sustained by the authorities."

See also Williams v. Delta Swimming Pool, Inc., 89 Colo. 586, 5 P.2d 583 (1931). On this point Colorado appears to be in accord with the weight of authority. See 48 A.L.R.2d 104, 126; 52 Am.Jur. Theaters, Shows, Exhibitions, Etc. Section 71; 86 C.J.S. Theaters & Shows § 42f.

The Government next contends that even if it were negligent in failing to provide a lifeguard, such negligence was not the proximate cause of the drowning; rather, the defendant asserts that the death resulted from the intervening wrongful conduct of third persons. This view appears to be supported to a certain extent by language contained in Williams v. City of Longmont, supra, which declares that a municipality could not be held liable for injuries sustained because of negligent conduct on the part of third persons. However, in that decision supervision of crowds in public places was said to be a "governmental" function, thereby absolving the municipality from liability. Here, of course, the United States is being sued as a private individual, and in this regard Section 449 of the Restatement of Torts lays down the following rule:

"If the realizable likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious or criminal does not prevent the actor from being liable for harm caused thereby."

See also Prosser On Torts (2d ed. 1955) pp. 139-143, 268-270; 38 Am.Jur., Negligence Section 70; 65 C.J.S. Negligence § 111f. Colorado has had...