granting immunity if flood control activity increases probability of injury; leaving undecided whether suit actionable under FTCA if flood control activity does not increase likelihood of injury on flood control lake compared with natural lake
How later courts described this case
- granting immunity if flood control activity increases probability of injury; leaving undecided whether suit actionable under FTCA if flood control activity does not increase likelihood of injury on flood control lake compared with natural lake
- remanding for a hearing to determine whether injuries resulted from flood control activities
- noting lack of uniform analysis
- immunity when characteristics of the lake related to flood control increased the likelihood of the plaintiffs injury
Written by the judges who cited it.
The opinion
MANION, Circuit Judge,
dissenting.
I respectfully dissent. United States v. James, 478 U.S. 597 , 106 S.Ct. 3116 , 92 L.Ed.2d 483 (1986), is a broad opinion with harsh consequences that only Congress can address. Our previous attempt to decipher the limits of that opinion is no help in this case. In Fryman v. United States, 901 F.2d 79 (7th Cir.1990), we held that the government was necessarily immune, because the injury happened in flood control waters, and was the result of flood control activities. Surely, the broad scope of James applies in those circumstances.
Here, we know that the injury occurred in flood control waters. The court is correct that we do not know if the injuries resulted from flood control activities, but there is no need to remand for an evidentiary hearing to find out. Because the injury occurred in flood control waters, the. broad scope of James compels the conclusion that the government was immune from suit. 1
. This is not the'type of case which we speculated about in Fryman — like a car falling through a pothole on the way to the beach — where the injury had nothing to do with the water. For such an out-of-water injury we questioned whether the broad scope of James would apply. Here, however, Bailey was injured when he jumped from a tree stump partially submerged in the flood-control water.