Legal Issues in Recreation Administration: Federal Recreation Liability

© copyright 1998 National Recreation and Park Association

In this case, plaintiff Dennis Dawson, as the administrator of the estate of Timothy Keenan, and plaintiff Rebecca Fisher, as administrator of the estate of David Fisher, brought actions against the United States following two drownings that occurred at the Somerfield North Recreation Area, located on the Youghiogheny River Lake in Somerset County, Pennsylvania.

The Youghiogheny River Lake ("Lake") is a flood control project operated by the United States Army Corps of Engineers ("Corps"). The river lake was formed in 1943 by the construction of a dam on the Youghiogheny River at Confluence, Pennsylvania. The dam was constructed pursuant to the Flood Control Act of June 28, 1938.

The Corps monitors the water level of the Lake on a daily basis to determine how much water to release through the dam. The water level is controlled both to prevent flooding and to improve the navigability of the Monongehela and Upper Ohio Rivers. Because of this activity by the Corps, the depth of the water and the amount of shoreline at the Lake varies throughout the year.

It is the policy of the Corps to manage the flood control projects in a manner that allows for recreational use. The Somerfield North Recreation Area is operated by the Corps as a swimming beach. The swimming area is separated from the rest of the project by buoys, and the Corps has constructed a parking lot and a toilet facility on the shore. When the water level in the Lake changes because of releases through the dam, Corps personnel move the buoy lines to maintain water depth in the swimming area.

On July 12, 1983, David Allen Fisher ("Fisher") and several friends and family members went swimming at the Somerfield North Recreation Area. Fisher was last seen swimming towards the buoy line located approximately 180 feet from shore. At the time of his drowning, Fisher was swimming alone and no one noticed his disappearance. After his mother could not find Fisher, a search began and his body was located approximately 100 yards downstream from the buoyed off area.

The second drowning occurred on August 20, 1983. Timothy Brian Keenan ("Keenan") was swimming near the buoy line approximately 180 feet from shore with his girlfriend. Keenan reached the buoy line first and apparently encountered some difficulty staying above water. He called for help and tried to swim back to shore, but disappeared in eighteen feet of water. Other swimmers immediately began to search for Keenan. His body was recovered some forty minutes later just outside the buoy line.

Plaintiffs Dawson and Fisher, as representatives of the estates of Keenan and Fisher, ("Dawson and Fisher") brought suit in the District Court for the Western District of Pennsylvania pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671-2680. In their complaints, plaintiffs alleged "recklessness, wilful and wanton misconduct, and negligence by the Corps in the construction and operation of the Somerfield North Recreation Area." The two cases were consolidated and tried in a non-jury trial. The district court entered judgment in favor of the United States, holding that "the government was immune from liability because of section 702c of the Flood Control Act of 1928, 3 U.S.C. § 702c." Dawson and Fisher appealed.

As described by the appeals court, "[t]he single issue presented is whether section 702c of the Flood Control Act of 1928, 33 U.S.C. § 702c, immunizes the United States from liability for these drownings at a flood control project." In addressing this issue, the appeals court responded to Dawson and Fisher's argument that "the government is not immune since the harm in this case was caused by activities wholly unrelated to flood control."

Section 702c of the Flood Control Act of 1928 provides, in relevant part, that "[no] liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters at any place."... The Supreme Court has broadly construed the immunity offered in section 702c in United States v. James, 478 U.S. 597 (1986). James involved a suit brought under the Federal Tort Claims Act for injuries suffered by recreational users of a flood control project. The plaintiffs in James were the representatives of the estates of boaters who drowned after being swept through the underwater gates of the Millwood Dam.

The Supreme Court held that section 702c barred any recovery by recreational users of a flood control project for any injury caused by "waters contained in or carried through a federal flood control project for purposes of or related to flood control, as well as to waters that such projects cannot control." The Court particularly noted the "sweeping terms" in which immunity was granted and that "[it] is difficult to imagine broader language."

Dawson and Fisher, however, maintained that "James does not preclude their action" because the Supreme Court suggested that "section 702c immunity is not available if a plaintiff can prove that the harm suffered was wholly unrelated to flood control." As noted by the appeals court, "[t]he courts of appeals which have considered section 702c immunity post-James have not interpreted the 'wholly unrelated' standard uniformly." However, "[b]ased on the broad immunity recognized by the Supreme Court in James," the appeals court concluded that "the only recovery not barred by section 702c post-James is for injuries caused by government activities wholly unrelated to flood control."

In determining what activities are "wholly unrelated" to flood control, we find the... [following principle] instructive. If waters contained in a federal flood control project for purposes related to flood control are a substantial factor in causing injuries, the immunity provision applies. We recognize that only a narrow category of cases will satisfy this stringent standard, however this was the result desired by Congress in enacting section 702c.

"Having delineated the standard for determining the availability of section 702c immunity," the appeals court applied this principle to the facts of the case and agreed with the district court that "the government is immune from liability under section 702c in these consolidated cases."

Dawson and Fisher argued that "the harm in this case was caused by the Corps management and operation of the Somerfield North Recreation Area, an activity that is wholly unrelated to flood control." To the extent that Dawson and Fisher allege that the Corps negligently failed to warn of the dangers of swimming at the beach, the Supreme Court in James expressly found "the manner in which to convey warnings, including the negligent failure to do so, is part of the 'management' of a flood control project."

In this case, Dawson and Fisher's allegations of harm are based upon the unsafe depth of the water at the swimming beach. The daily variation in the water depth, however, was in part due to releases by the Corps for flood control purposes. Thus "governmental control of flood waters was a substantial factor" in causing these drownings. Dawson and Fisher's cause of action is therefore barred by the immunity provision of section 702c.

While agreeing with the district court's construction of federal flood control immunity under section 702c, the appeals court found that the district court erred in entering judgment for the United States, rather than dismissing Dawson and Fisher's claims for lack of jurisdiction.

Although we agree with the district court's construction of 702c, questions of the government's waiver of sovereign immunity go to the subject matter jurisdiction of the court. Thus, we will vacate the district court's order and remand with instructions to dismiss the case.