# James v. United States > Court of Appeals for the Fifth Circuit · May 16, 1985 · 760 F.2d 590 URL: https://www.frixlaw.com/law-library/cases/8930051 ## Case - **Full name:** Charlotte JAMES v. UNITED STATES of America, Kathy BUTLER, Individually and as Surviving Wife and Heir of Eddy Butler v. UNITED STATES of America, Susan B. CLARDY, Individually and as Natural Tutrix of the Minors, Bridget Marie Clardy and Kenneth Clardy v. United States - **Court:** Court of Appeals for the Fifth Circuit - **Decided:** May 16, 1985 - **Citations:** 760 F.2d 590 - **Precedential status:** Published - **Opinion:** Dissent by Geegarwoodjollydavishill - **Judges:** Davis, Gar, Gee, Higginbotham, Hill, Jolly, Reavley, Wood - **Cited by:** 12 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Reversed by United States v. James, 478 U.S. 597 (1986). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8930051 ## How later opinions describe it (automated extraction) - noting ambiguity in term floodwater ## Opinion text GEE, Circuit Judge, with whom GAR-WOOD, E. GRADY JOLLY, W. EUGENE DAVIS and ROBERT MADDEN HILL, Circuit Judges, join, dissenting: The majority opinion seeks to make a case for the proposition that in enacting § 702c the Congress did not mean what until today every court that has considered its language has concluded it meant to say. It said: 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: ____33 U.S.C. 702(c) (emphasis added). The majority finds ambiguity, ambiguity which it candidly characterizes as “latent” (at 594), in theses words. The occasion for doing so is an appealing one: innocent citizens have been damaged in their lives, bodies and prospects by reason of thoughtless, perhaps callous, conduct by government employees. Looking at the statute, I have sought to devise a form of words that would more plainly rule out liability than does the Congressional language, hopeful that a comparison of what Congress said with what it might have said would reveal some distinction that would permit me to join the Court. I give it, with my additions in brackets: No liability of any kind [whatsoever, either to person, realty or intangible property,] shall attach to or rest upon the United States for any [consequential] damage [or injury whatever, however occasioned,] from or by [, in whole or in part, or in any manner connected with,] floods or flood waters [, whether stored or running free,] at any place____ Having done so, I find that what appears in brackets serves small purpose beyond making the enactment read like an insurance company’s form general release rather than a statute. Such releases are designed to be “court-proof.” I doubt, however, that even such a redundant form of words as I have imagined would be proof against the approach of the majority, which finds ambiguity even in such terms as “damage” and “flood waters” and visits liability upon the United States for damage resulting, in each of today’s cases, from negligence plainly associated with a flood control activity — the release of stored floodwaters. Its holding is thus in the teeth of the statute’s plain words and, insofar as I can understand the holding, simply brushes them aside and substitutes for them the court’s notions of good policy. I am not, however, sure what it is that the court holds today, although the effect in the cases is tolerably clear. The court’s summation of its decision appears at (at 603): Recreational Use and the Duty to Warn We are persuaded that the limitations on the immunity should be elaborated more particularly. The government is not liable for any fault of its employees in controlling floodgates or managing lands to contain, prevent, or manage floods or floodwaters. This immunity, however, does not extend to the fault of government employees in failing to warn the public of the existence of hazards to their accepted use of government-impounded water, or nearby land. Because of section 702c, the government’s acts to store, divert, and release waters to fur *605 ther flood control are subject to no risk of liability. If, however, the government allows people to come upon those waters or nearby shores for purposes of recreation, section 702c grants no immunity for government fault in creating a danger or in failing to warn of danger to the public. If a producing cause of the damage or injury is a government employee’s negligence in omissions or commissions that diverge from acts strictly for the purpose of controlling floods or floodwaters, and the presence or movement of water for flood control purposes merely furnishes a condition of the accident, there is no section 702c immunity. The quoted passage seems to me a classic exercise in granting with one hand and taking away with the other. Midway through its holding, the court intones that “Because of section 702c, the government’s acts to store, divert, and release [as it was doing in these cases] waters to further flood control are subject to no risk of liability (emphasis added).” Since that was what the government was unquestionably doing here, these appeals fail and the appellants take nothing — right? Wrong: “If, however, the government allows people to come upon those waters or nearby shores for purposes of recreation, section 702c grants no immunity for government fault in creating a danger or failing to warn of danger to the public.” (emphasis added). Taking these passages together, and attempting to construe them together as carefully and charitably as I can, I make the court’s meaning in them to be: The government is immune from liability in storing, diverting and releasing flood waters unless in doing so it (purposely? negligently?) creates a danger or fails to warn of one and some member of the public is injured by that danger. 1 In other words, the government is immune from liability until it injures someone and hence needs immunity; when it does so, it has none. Unless this is what the court means, then I do not know what it means; and if this is what it means, then the government has no more immunity in our circuit from damage to persons by floodwaters than has a private citizen for any other tort. All that is required for its liability is negligence (perhaps) on its part in a flood-control operation, causing injury to a member of the public. As to personal injury, and doubtless as to property damage as well, 2 the court has simply repealed 702c — a stunning exercise in judicial power! Having disagreed with what I view as a massive judicial recasting of Congressional intent, I feel obliged to offer a different view of it. Both the language of § 702c and the legislative history 3 seem to me entirely consistent with a purpose in the Congress, poised over a half-century ago on the brink of entry into a massive public works program — one of then unprecedented scope and laden with foreseeable *606 and unforeseeable prospects of liability — to state clearly that the federal treasury was to be placed at risk by it no further than was required by the Constitution. 4 This it did, as in my view the Eighth Circuit correctly observed, in the “broadest and most emphatic language.” National Manufacturing Co. v. United States, 210 F.2d 263 , 270, cert. denied, 347 U.S. 967 , 74 S.Ct. 778 , 98 L.Ed. 1108 (1954). Until today, as the majority correctly points out, at 600 et seq., our circuit and every other that has considered § 702c has taken a similar view of the effect of its language. That unanimous construction has stood for three decades without any sign of Congressional dissatisfaction. Today a different rabbit comes out of the hat, and with a stroke of the pen we impose on the United States precisely the “thousands of lawsuits for damages” 5 that the Congress so plainly refused, in statutory language that is as broad as it is long and, to me, very clear indeed. Because, despite my regard for the majority and its views, this is just the kind of tinkering with statutes that I think judges should not do, I record my respectful dissent. . I am unable to see what "purposes of recreation” adds to or takes from the court’s formulation. I doubt that a court, disposed as this one appears to be, would deny recovery, for example, to a motorist with a steaming radiator who was overwhelmed by flood waters while attempting to dip a can of water from the stream below a dam — scarcely a "recreational” purpose. . For I see no way to distinguish between damage to the hypothetical motorist of note 1 and damage to his stalled automobile. . For example, Representative Snell of New York, in a passage quoted by the majority at 598, stated: I want this bill so drafted that it will contain all the safeguards necessary for the Federal Government. If we go down there and furnish protection to these people — and I assume it is a national responsibility — I do not want to have anything left out of the bill that would protect us now and for all time to come. I for one do not want to open up a situation that will cause thousands of lawsuits for damages against the Federal Government in the next 10, 20, or 50 years. 69 Cong.Rec. 6641 (1928). It is true that this passage is preceded by one treating of land acquisition. Representative Snell’s quoted references to "for all time to come” and to lawsuits over the "next 10, 20, or 50 years” plainly indicate to me, however, that his apprehensions extended beyond the initial land condemnations for levee and by-pass locations. . Nor does the court’s reliance on the absence of a general federal torts claims act at the time § 702c was enacted seem to me sound. More than one waiver of immunity in a specific area had been enacted before § 702c — such as the Suits in Admiralty Act, 46 U.S.C. § 741 -752— and a general torts claims act had been under active consideration by the Congress since the times of World War I. See Dalehite v. United States, 346 U.S. 15, 24 , 73 S.Ct. 956, 962 , 97 L.Ed. 1427 (1953). Driving down a clear stake in such a dangerous area might well have been seen by the Congress as wise. . See note 3 above. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8930051. Public record. Not legal advice.