The opinion
United States Court of Appeals,
Eleventh Circuit.
No. 94-5036
Non-Argument Calendar.
Beverly S. REESE, Personal Representative of the Estate of James
C. Reese, on Behalf of the Estate of James C. Reese and on Behalf
of Beverly S. Reese, Surviving Wife of James C. Reese, Jamie L.
Reese, Surviving Minor Daughter of James C. Reese, Leandra J.
Reese, Surviving Minor Daughter of James C. Reese, Plaintiff-
Appellant,
Leandra J. Reese, Intervenor,
v.
SOUTH FLORIDA WATER MANAGEMENT DISTRICT, an Agency and/or
Subdivision of the State of Florida, Defendant-Third-Party
Plaintiff,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, Terrence C. Salt, as
District Engineer, U.S. Army Corps of Engineers, Jacksonville
District, Thomas Taylor, Third-Party Defendants-Appellees.
July 27, 1995.
Appeal from the United States District Court for the Southern
District of Florida. (No. 94-8108-CIV-JLK), James Lawrence King,
Judge.
Before ANDERSON, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
This is an appeal from the dismissal of appellant's complaint
based on governmental immunity pursuant to the Flood Control Act,
33 U.S.C. § 702c. Appellants Beverly S. Reese and her two minor
children ("Reese") filed a wrongful death action for the drowning
of her husband and their father, James C. Reese ("James Reese"),
against the South Florida Water Management District in the state
court of Florida. The South Florida Water Management District
filed a third party claim for contribution or indemnity against the
United States Army Corps of Engineers ("Corps") and Terrence Salt
as District Engineer, and the United States removed the case to
federal court. Reese subsequently filed another wrongful death
action directly against the United States pursuant to the Federal
Tort Claims Act, 28 U.S.C. §§ 2671-2680, and the cases were
consolidated. The United States moved to dismiss both cases based
on governmental immunity pursuant to 33 U.S.C. § 702c and the
district court granted the motion, remanding the state case back to
state court.
The decedent drowned while fishing in Lake Okeechobee, which
contains water and flood control structures supervised by the
Corps. The drowning occurred after the Corps opened a water
control device or lock which operated beneath the water's surface
to allow waters to flow downstream from the higher level of the
lake. James Reese was in a boat near the lock, engaged in
recreational fishing, when the lock opening created a powerful
current which forced him and his boat against a cable strung across
the lock's entry. He was thrown overboard and his body was flushed
down through the bottom of the lock and eventually downstream.
The Flood Control Act of 1928, 33 U.S.C. § 702c, states in
pertinent part:
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.
Reese argues, nonetheless, that the United States is not entitled
to immunity in this case pursuant to the Flood Control Act because
the water which caused James Reese's drowning was released by the
United States for irrigational, agricultural and environmental
purposes and not exclusively for purposes of flood control.
What happened to James Reese is unfortunate and tragic, and
perhaps could have been avoided if warnings or a schedule of water
releases had been posted. Nonetheless, the United States of
America is immune from liability in this case. On the basis of
United States v. James, 478 U.S. 597, 106 S.Ct. 3116, 92 L.Ed.2d
483 (1986), we find that the applicability of § 702c immunity in
multi-purpose projects such as the Central and South Florida
Project does not depend upon the particular use of the project when
the negligence occurred. In James, as in this case, recreational
users of reservoirs were injured or drowned when the Corps opened
retaining structures to control "flood stage" waters. In
interpreting § 702c, the Court held that the word "damage" includes
injury to both property and person, and the words "flood" and
"flood waters" apply to "all 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."
Id. at 605, 106 S.Ct. at 3121. Moreover, found the Court, the
language "liability of any kind" for " any damage" requires broad
construction. Id. (emphasis in original).
After tracing the legislative history of 33 U.S.C. § 702c, the
James court concluded that sweeping language of § 702c "
"safeguarded the United States against liability of any kind for
damage from or by floods or flood waters in the broadest and most
emphatic language.' " Id. at 608, 106 S.Ct. at 3122-23 (quoting
National Mfg. Co. v. United States, 210 F.2d 263, 270 (8th
Cir.1954), cert. denied, 347 U.S. 967, 74 S.Ct. 778, 98 L.Ed.2d
1108 (1954)). Finally, the Supreme Court also found that the
purpose of the project, if authorized by Congress as a flood
control project, was determinative of whether Congress intended
immunity to apply. Id. at 610 n. 10, 106 S.Ct. at 3124 n. 10.
In the case at bar, the level of Lake Okeechobee was being
controlled in order to direct water into a canal that was used for
a variety of purposes, including irrigation, well recharging and
deterring salt water intrusion. A lock was opened to allow
floodwaters to flow downstream from the higher elevation of Lake
Okeechobee. These facts are nearly identical to those in James.
The only arguable distinction that appellants offer is that while
the Supreme Court found in James that the water involved was
discharged to control flooding, id. at 606 n. 7, 106 S.Ct. at 3121
n. 7, here the water was also used for irrigation and other
purposes.
Even assuming the water was released "solely for" or "only
for" irrigation and other purposes, it was water contained within
a multi-purpose federal flood control project, and James clearly
held that all water in a federal flood control project is
considered "flood water" if it is part of the project. Id. at 605,
106 S.Ct. at 3121. The periodic release of water is fundamental to
the operation of a flood control project.
Reese also argues that James is distinguishable in other ways
and cites as support Boyd v. United States, 881 F.2d 895 (10th
Cir.1989), Henderson v. United States, 965 F.2d 1488 (8th
Cir.1992), and Denham v. United States, 646 F.Supp. 1021
(W.D.Tex.1986), aff'd, 834 F.2d 518 (5th Cir.1987). In Boyd, the
decedent was struck and killed by a boat while snorkeling in a
reservoir under the control of the Corps. The Tenth Circuit found
that while the reservoir was operated by the Corps for flood
control purposes, the United States was not entitled to immunity
because the "requisite nexus" was not established between its
operation of the reservoir as a recreational facility and its
immunity from liability associated with flood control operations.
Boyd, 881 F.2d at 900. In the instant case, by contrast, we do
find a sufficient nexus since, although decedent was engaged in
recreational fishing, the Corp's opening of the lock which led to
his death was a flood control operation.
In Henderson, decedent drowned while wade fishing near a dam
operated by the Corps. Water was released to generate
hydroelectric power pursuant to an order by a local electric
cooperative, and decedent, who was standing on a sand bar, was
swept away to his death. The Eighth Circuit found that it could
not " "conclude that governmental control of flood waters was a
substantial factor in causing [the decedent's] injuries.' "
Henderson, 965 F.2d at 1492 (citation omitted). But while the
Eighth Circuit did not bar plaintiff's claim, it did distinguish
Henderson from another Eighth Circuit case, Dewitt Bank & Trust Co.
v. United States, 878 F.2d 246 (8th Cir.1989), cert. denied, 494
U.S. 1016, 110 S.Ct. 1318, 108 L.Ed.2d 493 (1990).
In Dewitt, a recreational swimmer was denied a cause of action
for injuring himself by diving into shallow water:
[Plaintiff] ... was injured by diving into the shallow waters
of a federal flood control project. In operating the project
for flood control and navigation, the Corps maintained the
waters at this shallow level. Thus, governmental control of
flood waters was a substantial factor in causing [plaintiff's]
... injuries.
Dewitt, 878 F.2d at 247. Here, the operation of the Lake
Okeechobee lock, like the maintenance of the shallow water in
Dewitt, and unlike the generation of hydroelectric power for the
local cooperative in Henderson, or the snorkeling accident in Boyd,
was clearly undertaken for government flood control purposes.
In Denham, a man swimming in a lake owned and operated by the
Corps struck his head on an underwater obstruction—a buoy anchor
abandoned by the Corps—and was rendered a quadriplegic. The
District Court, affirmed by the Fifth Circuit, found that the
injury arose out of the dam's use as a recreational facility and
had no relationship to the control of floodwaters. In the instant
case, again, the death of James Reese arose directly out of the
Corps' floodwater control operations at Lake Okeechobee.
Thus, we do not find these cases applicable and are persuaded
that James controls the outcome here. Accordingly, the district
court's dismissal of appellants' complaint is AFFIRMED.