concluding that choices regarding whether to post signs near a dam and what type of signs to post, including assessments of the "cost, feasibility of maintenance and effectiveness of various types of warnings" brought negligence action within discretionary function exception
How later courts described this case
- concluding that choices regarding whether to post signs near a dam and what type of signs to post, including assessments of the "cost, feasibility of maintenance and effectiveness of various types of warnings" brought negligence action within discretionary function exception
- holding, in a SIAA action, that the Corps satisfied its duty of care and was not negligent where “the warning sign on the dam, the notices published in the paper, and the navigational guidebooks of the Corps were adequate warning of the danger”
- failure to warn of danger on dam over which motorboat plunged was within discretionary function exception
- noting that determination “about what type of warnings were [sic] effective and cost-justified” was a policy decision
Written by the judges who cited it.
The opinion
CONTIE, Senior Circuit Judge,
concurring in the judgment and joining in part.
I concur in the majority’s judgment affirming the district court’s dismissal of appellants’ claim. I join in the majority’s analysis in part II of its opinion. I am, however, unable to agree with the majority’s analysis in part III of its opinion. For this reason, I write separately.
Estate of Callas v. United States, 682 F.2d 613 (7th Cir.1982), presented issues similar to those in the instant case in many respects. In that case, the Seventh Circuit reasoned as follows with respect to the application of the discretionary function exception to the government’s lock and dam warning systems:
[W]e believe that the reasonableness of specific warning systems is a matter susceptible to judicial scrutiny and we therefore conclude that the district court acted within its proper sphere in determining that the program of warnings implemented at [the lock and dam] was negligent and supported a finding of liability. Were we to hold otherwise, it would be ‘difficult to perceive which duties under tort law could not be avoided by a similar policy decision to ignore them.’
Id. at 622 (quoting Smith v. United States, 546 F.2d 872, 877 (10th Cir.1976)). Analogizing to the Good Samaritan rule, the court held that even if the government had no duty to warn the public of the boating risks associated with the lock and dam involved in that case, once it undertook to perform that safety function it became obligated to do so without negligence. Id. The court continued, “The government’s failure to use due care in warning the public of danger could therefore be the basis of liability.” Id.
I would hold that in the instant case, as in Callas, the reasonableness of the warning system chosen by the government as well as any negligence in its implementation is susceptible to judicial scrutiny. However, since I am of the opinion that the majority is correct in its analysis of part II, and since part II represents a separate and independent alternative holding, I concur in the court’s judgment.