Daniel A. Boudreau v. United States

JERRY E. SMITH, Circuit Judge,

dissenting:

“[A]s with any case involving the interpretation of a statute, our analysis must begin with the language of the statute itself.” Touche Ross & Co. v. Redington, 442 U.S. 560, 568 , 99 S.Ct. 2479, 2485 , 61 L.Ed.2d 82 (1979). The relevant statutory provision for this ease states:

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. § 702c.

The Supreme Court acknowledged, and the majority emphasizes, the broad nature of this language. See United States v. James, 478 U.S. 597, 604 , 106 S.Ct. 3116, 3120-21 , 92 L.Ed.2d 483 (1986). Specifically, the Court has emphasized the word “any,” which appears three times in the relevant provision. Id. This case, however, does not turn on language from the relevant provision that is modified by the word “any.”

The simple question is whether the damages in this case were “from or by floods or flood waters.” I will assume that the circumstances in this ease involved “floods or flood waters” within the meaning of the statute, though this might be disputed. See James, 478 U.S. at 605 and n. 7, 106 S.Ct. at 3121 n. 7; Denham v. United States, 646 F.Supp. 1021, 1026-27 (W.D.Tex.1986) (holding that injury sustained from flood control project’s use as a recreational facility was not subject to immunity provision of § 702c), aff'd, 834 F.2d 518 (5th Cir.1987). 1 Immunity under § 702c simply does not apply, because there is no reasonable construction of the plain language of this provision by which the damage in this case was “from or by” flood waters.

It is undisputed that the injury resulted from a Coast Guard rescue attempt at Lake Lewisville. Water had nothing to do with the injury, except that but for the very existence of the water, the injury would not have occurred. This type of connection, however, is too tenuous to be supported by a rational construction of “from or by.”

The majority admits as much by holding that the relevant nexus is between the injury and “flood control,” not flood waters. The majority rejects the suggestion that its holding is overly broad, i.e., that a broad reading conceivably could extend governmental immunity to traffic mishaps or tree-trimming mistakes related to the “management of a flood control project.” See Fryman v. United States, 901 F.2d 79, 81 (7th Cir.), cert. denied, 498 U.S. 920 , 111 S.Ct. 295 , 112 L.Ed.2d 249 (1990). Instead, the majority *87 claims that “the present case is safely removed from that realm. Here, we cannot say that Boudreaus’s injury has ‘nothing to do with management of flood waters.’ ”'

The word “management” appears nowhere in the relevant provision of § 702c, however. It is gleaned from the following passage in James :

[Plaintiffs] also argue, in the alternative, that even if 702c is intended to grant immunity in connection with flood control projects, the Federal Government is not entitled to immunity here because their injuries arose from Government employees’ alleged mismanagement of recreational activities wholly unrelated to flood control. In support of this argument they point to a “fundamental principle of immunity” that the “sphere or protected activity must be narrowly limited by the purpose for which the immunity was granted.” We think, however, that the manner in which to convey warnings, including the negligent failure to do so, is ‘part of the “management” of a flood control project. And as noted in n. 7, supra, the Court of Appeals found that the release of waters at the [accident sites] was clearly related to flood control.

Id. at 609-10, 106 S.Ct. at 3123-24 (emphasis added). Neither this passage nor the facts of James support the conclusion that a nexus between the damage and flooding has been jettisoned.

The litigation in James was the result of the consolidation of two separate accident cases. In both eases the accidents occurred in the reservoirs of federal flood control projects. In both, recreational users were swept through retaining structures and either drowned or injured when the structures were opened to release water to control flooding. Id. at 599-602 , 106 S.Ct. at 3118-20 . There is no doubt that the injuries were caused by flood waters. 2

Despite its denial, under the majority’s reading of the “management” language from James , a negligent failure to warn a motorist of a road hazard, resulting in an accident within the confines of a recreational area that is part of a flood control project, would give rise to immunity under the Flood Control Act, because such a “failure to do so [] is part of the ‘management’ of a flood control project.”

This passage from James must be construed in light of the facts of James and the plain language of § 702c. The predicate of the Court’s language was injuries plainly caused by flood waters. This threshold is simply not met in the instant case. As indicated above, the Supreme Court acknowledged that the language of § 702c is broad; it did not indicate, however, that the provision should be read as “any damage related to the management of a federal flood control project.” Accordingly, because the alleged damages in this case were not caused by flooding, I respectfully dissent.

. I realize that this point may be part and parcel of the causation analysis or vice versa. See Den- *87 ham, 646 F.Supp. at 1026 . I concentrate on the causation point specifically, for emphasis.

. As the majority indicates, the accident in this circuit's case, Mocklin v. Orleans Levee Dist., 877 F.2d 427 (5th Cir.1989), was the drowning of the son of the plaintiffs.