Wright v. U.S.
| Decision Date | 15 February 1978 |
| Docket Number | No. 76-1497,76-1497 |
| Citation | 568 F.2d 153 |
| Parties | Alvin H. WRIGHT et al., Plaintiffs-Appellees, v. UNITED STATES of America et al., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
William S. Andrews of Andrews, Marenda & Moseley, Phoenix, Ariz. (C. R. Henriksen and D. Clayton Fairbourn, Salt Lake City, Utah, on the brief), for plaintiffs-appellees.
Donald Etra, Civ. Div., Appellate Section, Dept. of Justice, Washington, D.C. (Rex E. Lee, Asst. Atty. Gen., Ramon M. Child, U.S. Atty., Salt Lake City, Utah, and Ronald R. Glancz, Civ. Div., Appellate Section, Dept. of Justice, Washington, D.C., on the brief), for defendants-appellants.
Before SETH, HOLLOWAY and BARRETT, Circuit Judges.
Appellant, United States, seeks review of an adverse judgment following trial to the court in a wrongful death action brought under the Federal Tort Claims Act (28 U.S.C.A. § 1346). Such actions may be maintained against the United States "for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, 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."
In the early 1960's the State of Utah Highway Department initiated plans for the construction of a bridge on Highway 262 over McElmo Creek in San Juan County, Utah. Thereafter, due to a lack of funds on the part of the State, the Bureau of Indian Affairs (BIA) of the Department of the Interior was asked to help with the construction of the bridge. In 1964, utilizing Utah's designs for the bridge, and its own designs for the approach roads, the BIA built the bridge, with the State of Utah controlling and deciding upon its location and placement. Upon completion of the bridge and the approaches, and the final paving by the State of Utah, the bridge and approaches were accepted into the highway system for the State of Utah in 1965. Utah, at that time, assumed full and sole responsibility for maintaining the bridge and approach roads.
Five years later commencing September 4, 1970, and continuing through September 5, 1970, a rainfall of record proportion in the area of the bridge precipitated flooding, which caused portions of the approach roads to the bridge to be washed away. On September 5, 1970, Richard and Nancy Fellars were killed when, apparently unable to traverse the washed out approach road, their car went out of control and into McElmo Creek.
Plaintiffs, guardians of the Fellars' children and executor of their estates, brought this action alleging, inter alia, that the defendant, United States, by and through its agents, had "negligently designed, placed, located, constructed, inspected and managed the McElmo Creek Bridge and its approaches and that as a result of the aforesaid negligence the Fellars were wrongfully killed. United States denied negligence and argued that the accident was caused by the Fellars' own negligence, that the Fellars assumed the risk of the accident in question, that the accident resulted from unforeseen extraordinary natural forces, and that the accident was unavoidable.
At trial each side presented numerous witnesses relative to the design, construction, and location of the bridge and the approach roads, a diversionary works placed upstream from the bridge and approaches, and the size and nature of the storm which precipitated the Fellars' accident. The testimony alone encompasses over 1,000 pages of the record on appeal. After all the evidence was submitted, the trial court found the United States negligent and awarded plaintiffs damages totaling $230,400. In so doing, the trial court found, inter alia, that the bridge and approaches thereto were negligently designed and constructed without adequate or reasonable concern for hazards that would be created during floods, that the approaches were improperly constructed of finely grained material inadequate to prevent erosion by flood materials, that the diversionary works were poorly designed and constructed and not adequately maintained, that a reasonably prudent engineer would not have placed the bridge over the low flow channel but would have located the bridge so as to cross over the flood channel, that the defendants' negligence was the proximate cause of the flood breaking through the approach road, that there was no credible evidence to indicate that the Fellars were negligent, that having opted to construct the bridge and approach roads the defendants were chargeable with performing same in a non-negligent manner, and that the State of Utah's acceptance and maintenance of the bridge and the approaches "did not constitute independent, intervening causes which would break the chain of causation between the negligent acts of defendants' agents and the deaths of the Fellars."
On appeal United States contends that: (1) the trial court was clearly erroneous in finding it negligent; (2) the September 4-5 1970, flood was an act of God which relieved it of any liability; (3) the subsequent acceptance and maintenance of the bridge and approaches by the State of Utah relieved it of any liability; (4) the liability of the United States is barred by the "discretionary function" exception to the Federal Tort Claims Act; and (5) 33 U.S.C. § 702c immunizes it from any liability caused by floods. Because of their dispositive nature, only issues (1), (3) and (4) will be discussed.
United States contends that the trial court was clearly erroneous in finding it negligent. Under Fed.R.Civ.Proc. rule 52(a), 28 U.S.C.A., findings of a trial court will not be disturbed on appeal unless they are held to be clearly erroneous. Volis v. Puritan Life Insurance Company, 548 F.2d 895 (10th Cir. 1977); Joyce v. Davis, 539 F.2d 1262 (10th Cir. 1976). Courts of appeals must view evidence and all reasonable inferences therefrom in the light most favorable to the prevailing party. Joyce v. Davis, supra; Hart v. Western Investment and Development Company, 417 F.2d 1296 (10th Cir. 1969). Findings of a trial court are, necessarily, presumed correct and will not be reversed unless they are clearly erroneous. Quarles v. Fuqua Industries, Inc., 504 F.2d 1358 (10th Cir. 1974). Applying these standards to the facts of the case at bar, and ever mindful that appellate courts cannot try cases de novo, Ahern v. Veterans Administration, 537 F.2d 1098 (10th Cir. 1976), we hold that the trial court was clearly erroneous in finding the United States negligent.
David Sargent, Chief Structural Engineer for the State of Utah Highway Department at the time of the accident, testified that:
Q. Did you have ultimate responsibility for the design of the bridge.
A. I had ultimate responsibility.
Sargent further testified that Utah not only designed the bridge but it also controlled the location and placement of the bridge:
Q. Now, you're familiar with what we've been referring to as a high flow channel?
A. Yes.
Q. Was there any discussion of placing the bridge over that channel?
A. There very likely was. I do not recall any specific discussion.
Q. Who had the ultimate decision in determining the placement of the McElmo Creek bridge?
A. As a chief structural engineer, I would have to assume that responsibility.
The bridge was designed by the State of Utah to withstand a flood of a calculated magnitude that would occur only once every 25 years. Ward Morby, hydraulic engineer for the State of Utah at the time of the accident, testified that:
Q. Did you perform a hydraulic design with respect to the McElmo Creek bridge?
A. Yes.
Q. Was that design prepared under your direction?
A. Yes, it was.
Q. What hydraulic information did you consider necessary for examination?
A. First of all, we would, of course, work out the hydrologic data. This is the place you would normally start this type of an investigation.
Q. What hydrologic data did you work up?
A. We were to arrive at a design for this particular crossing that was selected for a 25-year design frequency.
Q. Why was a 25-year design frequency selected?
A. This was the design frequency that the Highway Department felt that they could justify expending their funds on for a road with the amount of traffic that the road would be subject to.
A. Well, normally they felt and I guess this is you have to do based on experience you have that they would not be justified or could not economically justify spending those additional funds for a higher design frequency than 25 years.
The bridge was accordingly designed for a 25-year design frequency. The evidence presented at trial was that the storm in question generated a flow of 13,100 c.f.s. Such a flow would normally occur only once every 42 or 55 years. 1 Plaintiff's own expert also acknowledged that the bridge, as designed, would withstand a 10-20,000 c.f.s. flow. Under these circumstances, and in view of the utilization of the available expert hydrological and geographical data, we cannot hold that the State of Utah was negligent in designing the bridge in the manner it did, or that the United States was negligent in utilizing such a design and placing it in the location directed by the State of Utah.
Further, in consideration of these circumstances we also hold that the BIA was not negligent in designing and constructing the approach roads for the bridge, since the design of the bridge over the low flow channel required that the approach roads be placed in the flood channel. Sargent testified:
Q. Mr. Sargent, you were actually aware of the location of the high channel when you designed the bridge, were you not?
A. Yes.
Q. And yet the bridge was not placed over that high channel, was it?...
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