May 2011 - Parks & Recreation - 25

By James C. Kozlowski, J.D., Ph.D.

Law Review

Flood Control Immunity
In Recreation Evaporating

R

eported case law from the federal courts indicates that governmental

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liability for public recreation injuries on federal sites should be the exception rather than the rule. Significant limited immunity is generally available
under an applicable state recreational use statute (RUS) and/or the discretionary function exception under the Federal Tort Claims Act (FTCA).
Pursuant to the Federal Tort Claims Act (FTCA),
the federal government is liable for negligence like
a private individual under the law of the jurisdiction
where the injury occurred. The discretionary function exception to FTCA liability, however, preserves
governmental immunity when the alleged negligence involves agency judgment grounded in " social, economic or political policy. " In addition, most
jurisdictions have some variation of a state recreational use statute (RUS). An RUS generally provides
that a landowner owes no legal duty to guard, warn,
or make the premises reasonably safe for public recreational use free of charge. Accordingly, under an
applicable RUS, there is generally no liability for ordinary negligence. The RUS, however, does not provide immunity for willful/wanton misconduct, i.e.,
behavior which demonstrates an utter disregard for
the physical well being of others.
In addition to limited immunity under a state RUS
and FTCA discretionary function exception, following
the 1986 decision of the U.S. Supreme Court in the case
of United States v. James, an increasing number of federal courts had found that absolute immunity was available to the federal government under the Federal Flood
Control Act for recreational injuries or deaths sustained
in federal flood control projects. Many of these reported
cases involved water-based recreation in federal dam
projects managed by the U.S. Army Corps of Engineers (COE) within the Department of Defense (DoD).
In these cases, the lower federal courts found the COE
had absolute immunity against liability claims generally arising out of water related recreation, in particular
shallow water diving injuries, on COE dam sites.

	

Harsh Immunity
In a memorandum commenting on the U.S. Supreme
Court's denial of a petition to review a claim involving a fatality on a federal dam project, Justice John
Paul Stevens characterized application of immunity under the Flood Control Act by the lower federal
courts as " the latest in an expanding series of tragic
cases. " In the case of Hiersche v. United States, 112
S. Ct. 1304, 117 L. Ed. 2d 525(3/9/1992), the U.S. Supreme Court had denied a " writ of certiorari, " (i.e.,
a petition to review a decision by the lower federal
courts) to determine whether the Mississippi Flood
Control Act of 1928 (Flood Control Act) provided the
federal government with absolute immunity from
liability for all personal injuries caused by its employees in federal flood control projects. The facts
of this wrongful death claim were as follows:
Jerome Hiersche, a professional diver, contracted
with the Government to inspect submerged fish
screens at the hydroelectric intake on the John Day
Dam on the Columbia River between Oregon and
Washington. Although Government employees assured him that the water flow to the fish bypass
system would be shut off, they negligently failed to
do so. Petitioner's head was drawn into an orifice in
the fish bypass system, and he suffered fatal
injuries.

As characterized by Justice Stevens, " a once obscure sentence " in section 3 of the Flood Control Act
had " assumed greater and greater importance because it has provided the Government with a defense to claims for personal injury and death caused
by federal negligence, gross negligence, and even

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May 2011 - Parks & Recreation

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